Author Topic: Dealing with internal defects and the NHBC insurance cover  (Read 13363 times)

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Peter_P

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Dealing with internal defects and the NHBC insurance cover
« on: January 03, 2013, 08:44:54 pm »
Hello Forum Members,

I understand the NHBC topic has not been posted for quite some time, but having just found this forum while doing online research on the NHBC, I would really welcome the opportunity to share with you my experience.

In June 2011 I purchased a flat through the shared ownership scheme; the property came with the NHBC Buildmark Choice type of cover.

After just over 6 months of moving into the flat, problems with the floor covering - which is made of Tarkett timber laminate – became evident: peaking, buckling/warping, and gapping, squeaking noise and “bouncing effect” are problems affecting the entire floor of the flat.

Over the past 2 weeks, the buckling and the warping in particular got worse as a result of moisture and water coming from the sub-floor that in turn caused the splitting of some of the floorboards.

When I reported the faults to the housing association back in February, the Building Surveyor reminded me that the laminated flooring is categorised as floor covering and it is not included in the warranty cover, therefore it becomes the responsibility of the leaseholder.

I then sought advice from the solicitor who undertook the legal work of the buying process; however he never responded to my emails (4 or 5 in total) nor returned my phone calls (perhaps a couple).

With the property - including its content and the building itself - being “out of defects” I was made aware that I would not be able to claim through the NHBC either.

In July however I contacted the NHBC, and what initially was meant to be a request of advice turn into a claim application.

I must recognise and praise the efficiency and professional approach of the Claim Co-ordinators Team at NHBC; they faced lengthy emails from me especially at the early stages of my claim.

Like some of you, I also appreciate the role of the NHBC and the warranty they offer; however, as with other insurance policies, the Buildmark Choice does not protect the Owner against every problem with their property.

In years 3 to 10 of the Buildmark warranty, the NHBC provides cover for actual physical damage caused by a building defect in the parts of the home listed in the policy document. Unfortunately, floor coverings are not listed as part of the home for which cover is provided, and therefore my claim could not be progressed.

Without being too presumptuous, I personally think the policy shows some limitations and a long list of restrictions that limit its application. Please read my considerations as follows:

1) The cover provided for flooring in years 3 to 10 is for when it is failing to support a normal load, which it does not appear to be the case. Essentially only serious problems and those of a structural nature are considered (provided the part of the home affected is not listed within the limitations and exclusions). My floor had to be close to collapse for my claim to be accepted.

2) The NHBC requires providing evidence of the defect; it has been in the form of a picture however, in my case, this is a very unrealistic and simplistic way to assess the nature or the entity of the fault. That said, the NHBC verdict had been that “from the evidence provided (a picture) the problem with my floor does not appear to be a structural issue therefore there would be nothing more NHBC could assist with”.
We are not only talking of minor visible damage to the floor covering, but indeed the underneath layer that is not levelled. This is causing peaking, buckling/warping, gapping (essentially the results of an inferior product construction and an unbalanced layer at the bottom of the boards), something that a picture will never exhibit.

3) So that NHBC can consider my claim further, they would need to see (additional) evidence that there is a structural defect within the floor that is causing damage to my floor coverings. They advised that a local builder could look at this and if the problem is confirmed to be a structural problem, the report could be submitted to the NHBC also stating the cost for repair.

4) I read on the NHBC website that they can arrange an investigation meeting with the leaseholder and the builders. However a Claims Co-ordinator said the NHBC will only investigate a claim where they believe they would be able to provide assistance in resolving the defect. In my case regarding the floors at my property, they do not believe they can provide any assistance.

5) The NHBC is not in a position to request the assistance of the builders, surveyors or any other party at this stage. That said, I was reassured that I am certainly within my rights to make contact with them directly to see if they would be willing to assist.

6) I find rather unusual that the entire floor covering needs to be replaced only after 3 years and that no indication of defects or faults had been picked up during the surveyor’s inspection. NHBC comment on this had been that even if a part of the home is expected to last longer than it has, if it is not listed in the policy document as part of the home for which cover is provided, the NHBC cannot assist in getting it rectified.

7) Other flats in the building have the same issues with their flooring. This is an indication of inferior construction and therefore should the builder be instructed by the NHBC to look into the faults regardless of the fact the building is out of defect and their period of liability expired?

If the home owner is 100% responsible for the cost of this repair, this would defeat the principle of “affordable housing.” The NHBC Buildmark Choice policy has also been designed (that is to protect registered providers, tenants and shared owners from the risk of building failures, loss of rent, and, if the option is selected, pre-completion contractor insolvency.).

I am not disputing the conclusions and decisions made by the NHBC. I must say though that I am slightly disappointed by some lack flexibility with the policy; unless it perfectly satisfies all the requirements, a claim is rejected; no other options are provided or suggested. I feel that the NHBC should be able to offer some assistance in bringing all parties together even when a claim cannot be progressed (i.e. organise an inspection to the property to obtain the additional evidence in support of the claim, at the home owner’s expenses).

I have not approached the builders yet, but that is something I will do it over the next few days. From experience and considering that the developer’s Defects Liability Period has expired, I know what their response will be.

In the meantime I would much appreciate if anybody could suggest what are the options still available in cases similar to mine.

Thank you & regards.

Peter


Philofacts

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Re: Dealing with internal defects and the NHBC insurance cover
« Reply #1 on: January 04, 2013, 11:05:59 am »
First of all you should have notified this in writing to the house builder as soon as possible when you first discovered the problem in December 2011.
You must now, as soon as possible, WRITE to the house builder giving full details of your defect and what you require them to do to resolve it.
It would also be a good idea to send a copy of your letter to both the NHBC and your Housing Association.

The problem would appear from what you have said to have been caused by the uneven screed applied to the structural floor and this has been exacerbated by moisture coming through the structural floor which should never happen. apart from exceptional circumstances such as a flood or plumbing leak.

In my opinion everyone is running away from this.
The solution involves taking up the timber flooring and floor screed and laying a new screed and floor covering. Obviously you would need to move out whilst the work is completed. Worse still, from what you have said, many others, quite rightly, would also want their problem sorted out and most would be seeking financial compensation for the hassle involved.

Regarding the NHBC warranty, the normal Buildmark new home warranty requires the house builder to correct any defect that arises due to the NHBC standards not being followed during the first two years. If the Buildmark Choice is similar, then presuming you moved in as a first occupant, your initial two-year warranty still has until June 2013 and the builder is still liable for any defects arising.  The floor covering may not be specifically covered by the warranty as such, but as the damage to it was as a result of a defect that is covered under the warranty, the flooring must be replaced by the builder.

NHBC Buildmark Choice states:
"What the Contractor is liable for:
Within a reasonable time and at their own expense, to put right any Defect or Damage which is notified to them within this period of the cover. Any reasonable costs you incur, by prior agreement with the Contractor, for removal, storage and appropriate alternative accommodation if anyone normally living in a Home has to move out so that work can be done. If they are given notice of Defects or Damage within this period of cover, the Contractor remains liable as above, even after this period of cover ends."


In my opinion, from what you have said, you do have grounds for a valid claim under the NHBC Buildmark Choice warranty.
If the house builder refuses to investigate and correct the cause of the problem then you will need to appoint a solicitor to take action against the builder on your behalf..

I am amazed your solicitor has failed to respond to your e mails. You should now appoint another solicitor.

Everyone should realise that the NHBC or other new home warranties are insurance policies.
As such they will have exclusions and terms to limit liabilities and exposure to potential claims much like all insurance policies. At least these restrictions of cover are clearly defined in the policy document
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Peter_P

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Re: Dealing with internal defects and the NHBC insurance cover
« Reply #2 on: January 09, 2013, 07:18:54 pm »
Hello and thank you very much for your reply.

The particular policy associated with my property defines the cover in the first two years as "part B Contractors Repair Cover"; it also states the period of this cover lasts "for two years from the date of the insurance certificate".

Under the Buildmark Choice policy the date goes from the inspection Finalled date and not the legal completion date. The inspection Finalled date on this policy was the 03rd June 2008. This means I am currently under section 3 of the policy, which covers NHBC obligations in years 3 to 10 if there is damage to certain parts of the property. Please see as follows:

PARTS OF A HOME COVERED IN YEARS THREE TO TEN OF THE POLICY
(BUILDMARK POLICY APPLICABLE TO PROPERTY REGISTERED WITH NHBC FROM 1 APRIL 2007)

  • Foundations, load-bearing parts of floors, walls or roof
  • Non load-bearing partition walls
  • Wet-applied plaster
  • External render and tile hanging
  • Pitched tile and slate roof coverings
  • All roof coverings
  • Ceilings
  • Floor decking or screeds (if they don't support normal loads)
  • Multiple glazing panes
  • Underground drainage
  • Flues (if there's an imminent danger to health and safety)

You are absolutely right: everyone is running away from this!
First is my solicitor who has ignored all my requests for advice. Reporting him to the Legal Ombudsman would generate more work for me; however it is something I have considered.

Then the Housing Association: all they do is keep denying any accountability for any defect or problem with the flat. Since the building is "out of the defect period" and the fact that the flat "is sold as seen", any internal repair falls under the leaseholder's responsibilities.
You seemed to have understood (and described) perfectly what the problem is; however NHBC keep referring to "floor coverings" when the problem is indeed caused by the underneath layer that is not levelled. Considered what the parts of a home covered in years 3 to 10 of the policy are, can the defect with the floor of my property be deemed as a "structural problem"? (This seems to be one of the main requirements for the NHBC to accept and progress any claim). This is what I have found difficult.

I appreciate that, like any other insurance, the Buildmark Choice does not protect the owner against every problem that may occur; as we know several limitations and exclusions apply throughout the policy and the steps the leaseholder should take depend on how long the Buildmark policy has been in force. 

When it came to the evidence provided, please read the response from the NHBC as follows:
"From the evidence provided, this does not appear to be a structural issue therefore there would be nothing more NHBC could assist with. If you have a local builder out to look at this and from there findings it shows a structural problem then please come back to us with a report and costing.

We would consider any further evidence to support your concerns regarding the floor at your property, however at this stage based on the information currently available to us, we do not believe the claim would be found valid therefore we do not consider further investigation would be warranted."

A picture of the floor plus a detailed description of the defect and current status of the floor has been enough evidence for the NHBC to establish the defect it's not a structural issue? This I do not consider particularly fair; without requesting further evidence to support my claim, NHBC could instead arrange an inspection of the property before making any final decision.  I am sure an inspection would take place after I provided the NHBC with a report of a local builder that confirms the defect is of a structural nature. 
The main reason why I have not notified the builders yet it's because the Developers Defects and Liability period has expired and I am now in the years 3 to 10 of the policy.

As the defect period has long since expired, the builders have been reluctant to accept liability as in many of the reported cases, they hold end of defect reports, signed off by residents. However, for problems related to windows, the Housing Association have required the builders to revisit a number of flats for verification if the problem is in fact an issue relating to defective installation or component. I am not sure why the same procedure has not been followed when leaseholders reported defects with the floor of their flat (a few cases within the building).
I also learned during the first 2 years the Housing Association asked the builders to put right any defect or damage reported by the leaseholders; one flat had its floor repaired twice and despite of that, it is still not right. This shows the quality of the job carried out by the builders.

My flat was formerly rented under the "rent to buy" scheme; therefore I am not the first occupant and I have no information of what was reported as defect, if any (not that it makes any difference to what the current status of the floor is).
I will contact the builders so that I have feedback from all parties, but I am not in the position to pretend them to resolve the problems the floor of my flat.

One of the options would be to sue the builders if there is an allegation that the floor was not installed properly by the builders. I understand that I need to seek specialist legal advice on whether I can sue my freeholder or if I have a case under any piece of legislation such as the Defective Premises Act 1972.

Thank you for your time. As always, I very much welcome your feedback and suggestions.

Kind regards.

Peter

Philofacts

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Re: Dealing with internal defects and the NHBC insurance cover
« Reply #3 on: January 10, 2013, 08:48:35 am »
If the warranty as it is began three years before you bought it, was it sold, that is described, with a 10-year NHBC Buildmark Choice Warranty?
If this is the case you have clearly been mis-sold and should sue your house builder, HA  or whoever sold you the property.

Complaining about a solicitor to the LAW SOCIETY should be just a matter of sending them a letter.

The Housing Association should be more interested in this issue, they do own a proportion of the properties affected by this defect! 
"sold as seen" refers to what you can see, you were sold the property with a warranty.

It would appear that floor screeds (if that is what is uneven) is covered by the warranty in years 3 - 10 so you should make a claim under the warranty. You could suggest that if the NHBC deal with this 'sympathetically', you will use your 'best endeavours' to keep the outcome confidential.

The problem does not appear to be structural, although it would appear that without taking up the floor and screed for an inspection, this cannot be completely ruled out.

As you are a second occupant/owner, you should ask the builder and Housing Association for details of any defects that became apparent before you bought the flat. 
If they refuse, make a Subject Access Request under the Data Protection Act.  Click on the link for more and template letter.

Gather this information and if you cannot get the NHBC to visit your flat and inspect the floor, legal action I am afraid is your only option, apart from paying for the work yourself. 
Do you have Legal Protection expenses cover as part of your home insurance?  If not, it may be worth paying a bit extra for this to potentially cover any legal costs.

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Peter_P

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Re: Dealing with internal defects and the NHBC insurance cover
« Reply #4 on: February 04, 2013, 06:53:46 pm »
First I would like to apologise for the delay in getting back to your last post, some sudden and unexpected health related issues have put me out of action over the past 3 weeks.
The Buildmark Choice Cover start date is 02-JUN-2008 and (I quote) "expires 10 years after the date of the Insurance Certificate unless otherwise specified overleaf."  The cover end date is therefore 01-JUN-2020.

In regards to the Endorsements, this is what the policy states:

Any Endorsements are listed below:
None
Buildmark Choice Home Damage Cover Excess (£650.00)
Summary of cover
Contractor insolvency cover
Additional 2 years cover
(Options not listed are excluded from the warranty)"

 
I totally agree the Housing Association should be more responsible, or at least should show more consideration and cooperation. As a Committee Member of the Residents Association, I have noticed their refusal of accountability has been adopted across different matters as their preferred way to deal with resident's complaints about defects or repairs.

When I reported the defect to the Housing Association back in January 2012, their position had been made very clear in 2 emails I received from the Building Surveyor:

"Unfortunately the Association would not be responsible for floor coverings to the property. The Association is responsible for communal and structural components only. The building is also out of defects so you would not be able to claim through the NHBC on this item (Although you are more than welcome to try).

Floor covering is the responsibility of the leaseholder
."
And:
"The Association is not responsible for attending to this item. Laminated flooring is categorised as a floor covering and outside the defects period, this then becomes the responsibility of the leaseholder.

This is also stated within your lease.
You would need to contact a local carpenter/tradesman in order to address this issue
"

I hear a similar behaviour has been the one adopted by the building company; they seem be reluctant to revisit the building and unwilling to commit themselves to a programme detailing the faults, even when requested by the H.A. (this also explains why I have not contacted them).

I appreciate your suggestion for the alternative approach I could use with the NHBC, however I don't feel comfortable with it simply because after months of emails, phone calls, detailed explanations of the issue and evidence provided, they have reached their final decision (my claim has not been progressed).

Their statement had been:
"we are currently under section 3 of the policy where floor coverings are not covered with the NHBC.
From the evidence provided and as stated below, this does not appear to be a structural issue therefore there would be nothing more NHBC could assist with. If you have a local builder out to look at this and from there findings it shows a structural problem then please come back to us with a report and costing."


The NHBC will only investigate a claim where they believe they would be able to provide assistance in resolving the defect, which is not my case. While I understand their policy, I am sure that, upon receiving a report obtained from an independent builder, the NHBC would not take its content for granted and would carry out their own investigation.
I could perhaps make a complaint about the way the NHBC have handed my claim, but simply with the purpose of having my case re-assessed.

I will request details of any defects that became apparent before I bought the flat and I thank you for the suggestion. Would their response be required on a formal document? I wouldn't want having to accept an email with the words "no defects" as an answer because my lack of knowledge on this subject.

I feel the only solution is to appoint a solicitor and see if there is ground for legal action (a solution that worries me as I would find myself to dispute with either a large Housing Association or an experienced building company. My hope is to involve the other residents who had similar problems at their flat).

In July 2012 The Leasehold Advisory Service wrote that if I am alleging that the floor was not installed properly by the builders, I could seek specialist legal advice on whether I can sue the freeholder or if I have a case under any piece of legislation such as the Defective Premises Act 1972. This was at the same time I submitted my claim to the NHBC and thought that would have been my last option.

I would like to thank you ever so much for the assistance you've offered , the time you've dedicated to matter and for being an invaluable source of advice and information in a time when all parties seem to have run away - as you quite rightly said in your first response.
The opportunity given by this forum is exceptional and I thank all people involved and for their contribution in making this possible.

Peter

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Re: Dealing with internal defects and the NHBC insurance cover
« Reply #5 on: February 05, 2013, 09:43:34 am »
Regarding requests for information on defects, you should make a formal application as a Subject Access Request as outlined in the link and template letters asking for everything that appertains to your property.  The reply you will get will be a copy of everything they have regarding your home - letters sent to the house builder and letters they have sent.  This also includes e mails. This is normally called a "Plot File".

Once you have the evidence and have considered it, you should go to a solicitor and see what case you have. 
Don't worry about the size of the company or Housing Association.
This just means they have deeper pockets for paying you a settlement and their legal expenses mean they WILL settle.

The advice you received from the Leasehold Advisory Service is good and you may be able to claim under the Defective Premises Act, but this should be your last resort as it could take a lot of time and expense.

Thank you for your kind comments regarding this forum. Perhaps you would like to "social network" the website to your friends. 

May I ask that you try and keep your future posts a bit briefer and to the point.
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