FACTCHECK: “If my house is defective, Do I have any rights?”

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17 May 2016

As part of out BCAR FACTCHECK series we will be examining at a number of statements and assumptions about Building Control, our current system of “reinforced self-certification” BC(A)R SI.9 and asking are they true or false. A number of points were made in a Today FM article response to public query on consumer redress and building regulations (Original Link:).

“I’ve recently discovered my home I purchased in 2007 doesn’t meet building regulations. Do I have any rights?”

Our listener says his home was a new build with a turnkey finish constructed in 2006, he was the first owner. He purchased in April-May 2007. There have been numerous problems with the property – he says that if he was to put all his concerns into the email he wrote me, he’d be writing all day. One of the issues was quite dangerous, and could have been fatal, but thankfully nobody was injured. [For clarity we have included BRegs Blog comments in bold and italics, original article text normal text ]

SURPRISINGLY WHEN YOU BUY A NEW HOME IN IRELAND YOU HAVE VERY FEW RIGHTS. CONSUMERS KNOW THAT THEY CAN BRING BACK A PAIR OR SHOES OR HAVE A WASHING MACHINE FIXED, BUT WHEN IT COMES TO YOUR HOME THE SAME RULES DO NOT APPLY. See link hereHE IS NOT ALONE, EVEN  ENDA KENNY SAID THAT AFTER PRIORY HALL & LONGBOAT KEY THAT HE WOILD NOT BE SURPRISED IF THERE WERE THOUSANDS MORE (list of 27 estates here). THERE HAVE BEEN SOME NEAR MISSES INCLUDING THE FIRE AT MILLFIELD MANOR LAST YEAR (reports here

The issue with building regulations came to light in January this year when the contractor dug up the kitchen floor to repair a sew pipe which failed. Our listener was concerned about the floor slab and contacted Building Control. Building Control is the division of each local government authority which is responsible for ensuring compliance with the Building Regulations. 

IT’S IMPORTANT TO KNOW THAT THE LOCAL AUTHORITY HAVE NO OBLIGATION TO GET INVOLVED AND THAT THEY ARE UNLIKELY TO DO DO, EVEN WHEN THERE ARE DANGERS TO THE OCCUPANTS (see report here) AS PAUDIE COFFEY SAYS “building defects are matters for resolution between the contracting parties involved, i.e. the homeowner, the builder /developer and/or their respective insurers” (see link here)  

Our listener says that on examination the floor didn’t meet Building Control’s requirements. Building Control have a engineer’s report from the builder – just after the build, I presume -claiming the floor was up to spec. 

BUILDING CONTROL DON’T CHECK COMPLETED BUILDINGS.  THE DEPT OF ENVIRONMENT DID UNDERTAKE INSPECTIONS FOR THE FLOOR AREA CERTIFICATES.

Under the Building Regulations, Local authorities have the power to issue enforcement notices, requiring repairs, and in some cases to prosecute for continuing non-compliance. This is what they did in the Longboat Quay development, where the developer was given a time to bring the building up to code.

NO, THATS NOT WHAT HAPPENED IN LONGBOAT QUAY. THE DEVELOPER HAS GONE OUT OF BUSINESS AND THE ARCHITECT WHO SIGNED OFF IS IN GHANA. THE OWNERS HAD NOBODY TO SUE. THE COUNCIL TOOK ENFORCEMENT AGAINST THE APARTMENT OWNERS, NOT THE DEVELOPER. THE COUNCIL ARE ALSO PART OWNERS OF THE BUILDING WHICH COMPLICATED THINGS, THIS IS STILL ONGOING AND THE OWNERS ARE STILL WAITING FOR REPAIRS (See Blog post here)

So our listener should keep in touch with Building Control, and ask them what they plan to do for him and his neighbours. In addition to that, the owner of the house always has the option to sue for damages. Just based on what our listener has told me, it’s definitely worth his while talking to a solicitor.

BUILDING CONTROL COULD TAKE YOU AND YOUR NEIGHBOURS TO COURT TO FIX THE BUILDING OR EVACUATE  YOU IF ITS DANGEROUS. YOU MAY NOT HAVE ANYONE THAT YOU CAN SUE & IF YOU DO ITS NOT GUARANTEED. THERES A CASE OF A DEFECTIVE APARTMENT IN DUBLIN THATS BEEN IN THE COURTS FOR 14 YEARS (See Blog post here). TEN YEARS  AFTER COMPLETION, ITS UNLIKELY THAT HE HAS ANY COMEBACK 

He should also ask around the neighbours, maybe one of them has already looked into this.  One of the problems he might encounter is that the builder may not be in business anymore

IF THE ESTATE HAD A POLICY LIKE HOMEBOND POLICY (OR SIMILAR) YOU MIGHT HAVE HAD INSURANCE COVER-. THESE POLICIES ARE NOT MANDATORY AND ONLY COVER LIMITED WORKS. IF THE HOUSE WAS BUILT IN 2006 THE TEN YEARS IS UP. VERY LIKELY, THE BUILDER MAY STILL BE AROUND BUT IF HE CLOSED THE LIMITED LIABILITY COMPANY & STARTED A NEW ONE YOU HAVE NO COMEBACK. 

a lot of builders aren’t. Even if they are still technically in existence, they may not have any money to pay if you beat them in court. This was the problem in the Priory Hall case, for example, where the City Council ended up redeveloping the whole place.

PRIORY HALL THE RESIDENTS HAD BEEN LEFT IN TEMPORARY  ACCOMMODATION FOR YEARS WHEN THEY WERE EVACUATED BY THE COUNCIL. THEY ONLY TOOK ACTION WHEN IT BECAME A BIG POLITICAL PROBLEM AND  THATS THE ONLY REASON IT WAS FIXED. REPAIRS ARE STILL BEING DONE AT PRIORY HALL AT A COST TO THE TAXPAYER OF €30m, SO ITS UNLIKELY MORE MONEY WILL BE AVAILABLE FOR Y0UR HOME (See Blog post here)

NEW REGULATIONS BROUGHT IN IN 2014  LEAVE HOMEOWNERS NO BETTER OFF. THERE IS STILL NO MANDATORY INSURANCE, THE POLICIES AVAILABLE ARE LIMITED AND NEW HOMES CAN STILL BE SIGNED OFF BY AN EMPLOYEE OF THE DEVELOPER WITH NO CHECK FROM THE COUNCIL(See Blog post here)

Other posts of interest:

UK + Ireland | take a quick drive to Newry with Breg Blog…

How much would 100% independent inspections by Local Authorities cost? 

€ 5 billion | The extraordinary cost of S.I.9 self-certification by 2020

Pyrite: the spiraling cost of no Local Authority Inspections

Building regulations are in a terrible state, but I have a solution | Dr. Lorcan Sirr

Department of Environment regulatory failure | PYRITE 10 years on

One-off houses and Certificates | Deirdre Ní Fhloinn

World Bank Rankings, Ireland & SI.9 – Look Back 1

The cost of a Solution to BC(A)R SI.9? 

2 thoughts on “FACTCHECK: “If my house is defective, Do I have any rights?”

  1. Michael Tweed

    Unlike the majority of everyday purchases the doctrine of Caveat Emptor applies to the structure of a property when it is purchased. To the best of my knowledge (and I would happily be contradicted by an expert in conveyance law) caveat emptor applies to new dwellings as well as secondhand dwellings.
    A purchaser has the right (and with regard to protecting themselves perhaps that should be – the duty) to have the property inspected by an expert architect, engineer or surveyor. This is about all the consumer protection they can get, as far as I can see.
    While it is presumed that a design team has designed a dwelling in compliance with the Building Regulations, and that a builder has built a dwelling in compliance with the Building Regulations, with our self-assessed building control system it is even more imperative for ALL purchasers to have a property which they intend to purchase surveyed prior to purchase.
    Even with a full Local Authority administered Building Control Inspection system, such as in Northern Ireland, (which I advocate as probably the most effective Building Control system) the Building Control Inspector is not going to be attending on site every moment of the build. Therefore even in this case building defects could go undetected. Caveat emptor still applies and the Local Authority are not responsible for any undetected defects or more importantly they are not responsible for putting right any defects.
    Purchasers should use expert, experienced surveyors – one’s who know the most crucial aspects (such as fire protection and fire limitation measures) to check, how to check them and how to spot defective work.
    RIAI Opinions on Compliance were devised to fill the gap left by the first drafting of the Building Control Act of there being no requirement to obtain Building Regulations Approval prior to commencement of construction, and where there were no compulsory inspections of construction work by Local Authority Building Control Inspectors. On completion of a building, if the question was asked “Does the building have planning permission and Building Regulations Approval?” the first question could be answered, but the second could not since Building Regulation Approval doesn’t exist in Ireland. The question then arises “How do I know the building complies with the Building Regulations?” to which the logical answer in a self-assessed system logically has to be “Because I say so.”
    Since this probably appears a little trite, although the logical outcome of a self-assessed system, a “solution” was put in place by the RIAI drafting and advising their members to issue Opinions on Compliance. Because these are simply opinions, and because the building regulations are drafted as statements of intent (please note – the Technical Guidance Documents ARE NOT the Building Regulations) an opinion on the basis of visual inspection without opening up work is as valid as anything else, or perhaps I should say, as meaningless as anything else.
    The Opinion does take care to state that “it is not a report on the condition or structure” of the building – the intention being to distance the issuing architect from legal responsibility that the Opinion is somehow a condition report by limitiing the opinion solely to the issue of compliance with Building Regulations.
    Caveat Emptor

    Reply
  2. Martin Keane

    Found this information while researching amazing coming from an EU Directive, Look at the TA6 form the seller fill outs, not real sure if it will help, I would ask the government one question how come we don’t have this act here.
    . EU legislation from 2008 Consumer Protection from Unfair Trading Regulations (CPRs) and the Business Protection from Misleading Marketing Regulations 2008 (BPRs) came into power in the United Kingdom to regulate the relationship between the consumer and auctioneer and make it an offence for misleading or false statements in the course of a property development business or estate agency offering property offered for sale. The seller must complete a TA6 Property Information Form which covers all aspects of the properties condition including difficult neighbours. This new act replaces the Property Misdescriptions Act 1991 which has being repealed.

    Reply

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