New Home Owners And Snagging Forum
Advice on buying a brand new home => Snagging and defects => Topic started by: NeilW on May 19, 2021, 08:27:26 am
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I'm the 'proud' owner of a Taylor Wimpey home in the wilds of the North East that was built in 2019, heavily delayed and ended up with over 200 faults with it - as highlighted by a HomeSnag survey, which I booked in thanks to the advice on these boards and webpages.
The faults ranged from minor, to entirely taking down the master bedroom ceiling and installing a metal suspension because the walls supporting the roof are not level. One is two inches higher than the other.
The disruption of the last year not withstanding this has been whittled down to the final two big ones - a creaky ceiling between the master bedroom and the lounge (yes that old chestnut again) and poorly installed insulation in the walls and ceilings (as demonstrated by a Thermal and Boroscope survey).
Taylor Wimpey have rejected both of them, and are now playing the runaround with me. I've raised the issues with the NHBC back in October last year and they have been unable to respond. The standard line is now:
We normally aim to respond to contacts within 10 working days but have now extended our response times to 20 working days.
We would politely ask that you don't call or email us to chase a response unless it has been more than 4 weeks since you contacted us.
The extended turnaround time is beyond a joke, and I have got nowhere with them in six months. It took the NHBC over two months to write to the builder.
I have tried to raise the issue with the group company at Taylor Wimpey and they forward it back to the North East contingent. After consulting lawyers I am now at the state where I'm about to issue a Letter Before Action.
Since the NHBC don't appear to be able to get their act together, I'm going to need to hire independent inspectors. Does anybody have any experience of this, and how it should be done?
NeilW
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What's the view of the Cura solution to the 'micro cracking' issue in ceilings?
lift up the existing carpet and underlay, set aside and cut access panels in the chipboard flooring to enable the installation of ‘1 inch x 1 inch’ triangular shaped timber extrusions alongside the bottom of each of the joists at the plasterboard/timber junction within the floor void.
This extrusion is glued with D4 wood glue and pinned in place.
The panels are then re fitted with again, D4 glued and screwed ‘kiln dried’ timber noggins to ensure that these panels in turn do not cause any creaks.
This ‘extended landing’ for the plasterboard is now 2 inches of additional timber ‘extrusion’ plus the original base of the joist bound together with D4 glue and pins.
The results are miraculous and compared to the work involved with the other solutions listed above is quick, relatively clean and can be completed in 1 day so that the homeowner is not inconvenienced for too long.
https://www.cura-home-care.co.uk/portfolio-item/micro-cracking/ (https://www.cura-home-care.co.uk/portfolio-item/micro-cracking/)
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First of all the Cura "solution" looks like it is installed from the top by taking up the flooring. This itself could mean the floor creaks more due to the added joints, unless they glue noggins to the joists at the new cuts.
I am pleased you are not giving up due to the inaction by Taylor Wimpey and the NHBC.
Quite frankly, from what you have stated they are both not doing the very things they claim on their websites.
The housebuilding industry is rotten to the core and the government needs to act and set up the statutory New Homes Ombudsman it announced as long ago as 1 October 2018. It has been mentioned in the last tow Queen's speeches too.
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Update on the progress so far. The NHBC attended on the 29th July to 'mediate' and as expected the ceilings were suffering from micro cracking, the insulation is indeed missing and badly installed and the back door repair was bodged - not only was the doorset bowed but it wasn't put in square, meaning the door doesn't pull tight against the seals.
Despite these faults being raised last September, the NHBC have given Taylor Wimpey until the middle of November to sort them out.
I'm not hopeful. I was assured the Borescope holes left by the NHBC would be filled in that afternoon. A week later I'm still waiting.
I'm not at all happy with the timescales. At what point do I give Taylor Wimpey 14 days to provide firm dates for repair, or start getting my own people in?
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You should write to Taylor Wimpey and ask for a firm date.
Whether it is next week or 31 October is of no matter.
But you need certainty now, having received a positive outcome from the NHBC after being messed about by Taylor Wimpey for the last 11 months.
You could add in your letter that if the works are not 100% completed to the required standard by the date given or November 2021, you will appoint contractors and hold Taylor Wimpey liable for the full costs plus a 20% management fee for your time!
That should get them into action. Send your letter to the CEO Pete Redfern!
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The solution to the back door is to order precisely the same door and do exactly the same repair as last time - while expecting a different result. Yet I had a conversation with the Taylor Wimpey rep during the NHBC visit and he suggested that the doorway had been built a fraction too wide and that's why the door frame had bowed. They are not even talking to each other.
So after receiving the same "this will be chased up with the contractor the task has been deployed to and we will ask them to provide an update as soon as possible." as the "I will let our Coordinator know to chase up the contractor for this to be resolved as soon as possible." I got on June 9th, I've given written to them in the manner suggested requesting firm dates for completion of all outstanding issues.
Given they are putting doors in and fences up all around me, it's pretty clear where the priority lies and it isn't fulfilling the repair obligations to me.
On the plus side after three or four chases I've managed to get the borescope holes filled in. It only took ten days. I decided to clear the mortar splats they left on the drive myself...
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Another update.
Taylor Woodrow booked a contractor to come to the house to look at the creaky ceiling/floor. Obviously they didn't bother to ask me whether the date was OK first - they just booked them. I only found out when the Customer Service Agent mentioned it in a reply to one of the other issues. Only after I pointed it out did I get a call from the contractor asking if it was OK if they came on the date they had already been booked to come!
When the contractor rang on the day it was clear they they thought they were talking to the Taylor Wimpey representative. I had to explain that I was the end customer. It turns out this contractor is new to Taylor Wimpey and apparently hasn't worked for them before. Not only that, but the individual, although a very pleasant person and clearly a reasonably experience joiner, stated they weren't that familiar with new build constructions and tended to work mostly on houses with traditional floor construction.
As we went around as well as the cracking noise from the ceiling he spotted a clear V shape in the ceiling boarding, and that the deflection and bounce from the first floor was rather more than he would expect. Also the issues extend into the kitchen ceiling and the bedrooms above.
The contractor wasn't familiar with the issues from the Joint Statement, and said that he would recommend further investigation to start with. I'm awaiting a response from Taylor Wimpey.
I would have thought Taylor Wimpey should have sent around a specialist microcracking contractor to sort out the floor. It's such a common issue surely there must be firms that specialise in sorting it out by now.
My thoughts are that this may be a much bigger issue than just bad boarding on the ceiling and may extend to a faulty installation of the joists.
Would this now warrant a specific structural survey by a suitably qualified engineer/surveyor? Would that help?
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First observation is the contractor isn't familiar with new build construction. The floor you have is a traditional joist with chipboard over and plasterboard under and has been used for decades! OK TJI type joists have only been around for 20 years but.......
I agree, you may well have a damaged joist(s) which is making deflection must worse.
Moreover, I am surprised that no one from Taylor Wimpey was there during the visit especially as they claim to "know a thing about building new homes"
It is now borescope survey by the structural engineer and joist manufacturer.
The inspection findings could have implications for other houses on your development too.
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There is a new update that has been issued on this:
https://gpda.com/wp-content/uploads/2021/06/GPDA-Guidance-cracking-noises-from-residential-timber-floor-structures.pdf
We are still struggling to find a specialist structural engineer to help us with this issue. Everyone we speak to claims not to know about the problem and our latent defects insurer has said that they consider it not structural so won't help. At least NHBC are making your developer do something about it. Good luck!
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I'm looking at multiple approaches to the issue - with the NHBC being the least likely option to lead to anything since they aren't actually very much use. They like to use the language of insurance (claims) and are definitely operating as the loss adjuster for the builder in the resolution procedure.
Build contracts are subject to the Consumer Rights Act 2015 for anything concluded after October 2016, which means that the provisions of that act can be used. And they have a fair amount of heft.
s49 states that the service must be performed with reasonable care and skill. Almost certainly reasonable care and skill for anybody who calls themselves a plasterer on a new build would involve knowing about the Joint statement. Therefore if there are any dabs in contact with the ceiling boarding on your walls reasonable care and skill has not been taken and the fault definitely was there at the time the contract was formed (dabs don't appear by themselves over time).
You can then demand that whoever did this fix the fault (s55), and if they refuse you have a right to a price reduction (s56) or can use the common law damages option to give the builder 14 days notice to correct, and then hire somebody to sort it out then recover the cost from the builder.
Rather than messing around with insurance policies from warranty providers, it's likely more productive to do it old school using good old Consumer Rights law.
In my case I'm having to get the floor surveyed first to see if there is a wider issue (In the language of insurance I'm hiring a building surveyor to act as my loss assessor - and produce a specific structural defect expert report). Hopefully there isn't and it just requires the walls and ceiling reboarding to eliminate the noise.
I'm really glad I paid that bit extra to get Legal cover on my home insurance. The advice line has been very instructive. Although I've yet to see if they are correct or not.
All above AIUI, IANAL, etc.
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Thanks NeilW, I do feel a bit relieved it is not just us having this problem although that isn't good for you!!
My warranty holder has also been acting in a similar manner for my builder. They said although they aren't structural engineers and haven't visited the property, on the information they have, they've decided it isn't a structural issue - which is in a way good news - but doesn't help us very much.
It has taken us a while to find anyone but we have found a structural engineer that may be able help and is coming out next week for a first visit. We are just worried about the cost and disruption of a specific structural report but we really need to get to the bottom of the issue.
I am glad your legal Homecover has been so helpful, we have this too but hadn't thought of using it as it such a specialist area and I didn't think the Consumer Rights Act covered New Builds but I am not a lawyer, so the advice they have given is really interesting.
Hopefully the surveyor we have coming will be be able to help, but if you are in the East of England recommendations would be appreciated!
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Yes the building industry likes to give the impression that the Consumer Rights Act doesn't apply to new homes. However I'm informed that it does apply to off plan new homes where you get the option to alter things because the essence of the contract is a contract of building services. How else could they tailor things to your specification if there was no contract?
It may not if you buy a pre-built home where the completed building is transferred as a land transfer, and the experience is more like buying a pre-owned house.
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Thank you for posting the link. We bought the house completed from a local developer so yes the Consumer Rights Regulations don't look like they apply to us.
Unfortunately we fall down an even bigger crack than a lot of homebuyers, where it was a small warranty company and small developer so have even less protection.
I work in a highly regulated industry and like to think I am reasonably savvy, but admit this whole new build buying has been a real shock. From the blatant Estate Agent lies to the Developer not caring now they have our money! Oh well, expensive lesson learnt!!
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Top man thanks for the heads up on the update which hopefully now demonstrates that the industry as a whole should know why it occurs and do something to prevent new home buyers suffering this defect in the future.
First port of call are the warranty inspectors as the prevention via inspection and educating those on site is clearly in their hands.
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I flagged up the CRA to the Consumer Code for Home Builders to see what they say
They disagree
we are aware of the information which the Home Owners Alliance have on their website and advised them a number of years ago that we do not hold the same view. The Consumer Rights Act (Section 2(8)) defines goods as 'tangible moveable items' and we believe it cannot apply to the sale of a home, whether off-plan or complete. Our view is that the basis of their argument appears to be that the home buyer is buying goods and services. We do not agree that a consumer is contracting for a service when buying off plan, they buy the finished home under a contract, it would be like arguing that every good that we buy off the shelf includes similar duties.
The trouble is that is self-contradictory. It isn't an off the shelf home. It's one that has been modified to the customers requirements, which they did under a contract of service, if a house isn't a good.
It's amazing that something as important as this isn't 100% crystal clear.
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On the substantive issues, I've managed to get the insulation in the walls sorted out, and the fences fixed. Almost there with the door.
But on the floor, nothing sensible. They just keep pushing the original contractor they sent out, who sent a joiner to look at a boarding job, wasn't familiar with i-joists and who weren't aware of the joint statement.
How do you deal with a builder who simply refuses to address the concerns in your emails?
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The Consumer Code for HomeBuilders is a waste of your time.
They will hardly ever agree with the new homebuyer.
However, the Home Owners Alliance is wrong and a new home is "Property" not goods or services so the CRA does not apply with the majority of CRA criteria. That said, any specific goods or services carried out within the home, after legal completion, could be covered by the CRA.
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The Consumer Code for HomeBuilders is a waste of your time.
They will hardly ever agree with the new homebuyer.
However, the Home Owners Alliance is wrong and a new home is "Property" not goods or services so the CRA does not apply with the majority of CRA criteria. That said, any specific goods or services carried out within the home, after legal completion, could be covered by the CRA.
This twists and turns and gets deep into law.
Turns out the Home Owners Alliance is correct, and I have the legal authority upon which that is based now.
The matter turns on the authority of Harrison & Ors v Shepherd Homes Ltd & Ors [2011] EWHC 1811 (TCC) (11 July 2011), which is was appealed and the contractual points not taken at Harrison & Ors v Shepherd Homes Ltd & Ors [2012] EWCA Civ 904 (05 July 2012)
The decisions in that at paragraph 50 states:
If, contrary to my view, the existing express term at Clause 7.1 did not include the obligations in respect of design and fitness for habitation, then subject to the entire agreement clause, I consider that the usual terms as to the design being carried out with reasonable skill and care and as to fitness for habitation, would be implied under section 13 of the Supply of Goods and Services Act 1982 and at common law as part of the terms set out by Diplock LJ in Hancock v Brazier (Anerley) Ltd [1966] 1 WLR 1317 at 1327C to D.
Section 13 of the Supply and Goods and Service Act 1982 provides that, in a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.
Since Section 13 of the Supply of Goods Act refers to the supply of a service, and the judge has determined that clause applies to a build contract, then that build contract is a contract for the supply of a service. The whole judgment decision is that the liabilities of that contract survive merger on conveyance.
The law has determined that building a house 'off plan' is a contract for the supply of a service. Section 48(1) of the Consumer Rights Act states "This Chapter applies to a contract for a trader to supply a service to a consumer.".
Therefore the Consumer Rights Act 2015 applies to the building of an off plan home - by decided law.
The Consumer Code is wrong in its interpretation.
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The main judgment is here https://www.bailii.org/ew/cases/EWHC/TCC/2011/1811.html (https://www.bailii.org/ew/cases/EWHC/TCC/2011/1811.html)
It's worth a read in full, paragraph 50, 65 and 66 particularly.
The link to the Supply of Goods and Service Act 1982 make it crystal clear that the judge considered the contract of sale to be a contract for the supply of a service. He could not have applied it otherwise. And that leads by force of logic that s48(1) of the Consumer Rights Act 2015 applies to such a contract of sale, and that the obligations arising from that survive merger.
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I agree the Consumer Code is a waste of time. There's not even a mechanism on the NHBC website by which you can initiate a complaint - even if you can find a head in the Consumer Code that addresses the issue complained about. From what I can tell post completion the Code doesn't even require the builder to follow the procedures they have published, just to publish some.
Taylor Wimpey have refused to engage with my emails highlighting that the individual they sent around didn't know about the joint statement, the new detailing within the updated guidance and wasn't even familiar with the construction if I-joist floors. I haven't had the courtesy of a substantive reply. Instead they have decided unilaterally this person is fine ("we are in the process of arranging and fulfilling these remedial works with an approved contractor who meets our commercial requirements.") and they have been booked to attend on the Thursday 7th October - all without reference to me ("Taylor Wimpey are committed to resolving this issue within the timescale and requirements set out by the NHBC, an appointment is in place for 7/10/2021").
I then got a call from the guy at quarter to five on Friday telling me that he was booked to come on Monday (today - 4th October) and if that was ok. Apparently even though they can't get the basic like dates correct I'm supposed to let them take down my ceiling and accept that.
I've referred the issue back to the NHBC under the NHBC Warranty to see if they will take over the issue, purely to complete that process.
I still can't quite believe they've tried to strong arm me in this way. Quite incredible.
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The Home Owners Alliance is wrong.
Get legal advice and don't rely on cases that appear to fit your circumstances.
If there was existing consumer protection for new home buyers, there would be no need for the imminent New Homes Ombudsman!
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They're not wrong - after all the opinion comes from a professor of construction law at King College so it's as right as anything else - it's more that it doesn't really help very much in getting anything sorted.
And I've had legal advice, and they say s48(1) applies under the contract for sale, because the contract for sale in the case of an off plan build is a contract for the supply of a service according to Harrison and the liabilities survive merger under conveyance.
I've had quite a few people say that it is wrong, but they can't then explain why the Harrison authority doesn't apply. Do you know why? The Consumer Code can't tell me. Nobody can. They can't quote any legal authority that is any better.
The problem, however, is that rights imputed by the Consumer Rights Act under the services clause don't get you any further forward than what you always had under the common law anyway. You can't easily force the builder to repair anything and you can't get compensation up front because s56 of the Consumer Rights Act works on diminution in value - and there isn't any of that in a buoyant property market. Therefore, in the case of the property market, it doesn't work as Parliament intended - to provide a quick way to get your money back up front.
So you're then looking at damages under the common law in the traditional way if the builder won't play. Which means paying out first to fix the problem, and then the long tortuous process of getting it back via the courts.
The job of the NHQB is to try and force builders to build things properly in the first place, and the job of the ombudsman is to provide a less tortuous alternative to the courts that has teeth and can award compensation up front to people who are stitched up by builders. Hopefully we can get those in place so that ordinary people have a simple way of holding builders to account.
Given the nightmare I've had over the last year, it would have been faster just to get the problem fixed and claim damages.
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This is all really interesting.
So is it the case that the new build housing industry powerful lobbying and influence has meant any effective Consumer Protection hasn't been enshrined in law. Or as most law develops via case law, has there just not been a legal challenge under the 2015 Regulations?
The structural engineer that visited us feels we need a resilient layer, they are familiar with microcracking and said it is not the issue in our case. The joists had too much moisture in them and it means now they have dried the floorboards can't lie flat. This ties in with something the builder told us too. Costs due to the increases in materials is £££. So we are going to write to the Developer one more time, which we are not hopeful of and take some legal advice. Interestingly a Chippie I spoke with said some of the high end builders are now putting in resilient layers as a matter of course!
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From the discussions I've had there are no reported cases *at all* regarding the Services provisions in the Consumer Rights Act, which probably means they are as much use as a chocolate fireguard in practice.
The other comment made to me is that the building contract precedents we have so far are TCC/High Court level or below and wouldn't necessarily bind the Court of Appeal or Supreme Court, although as I note above the contractual points were not taken at the Court of Appeal.
The case law covers the dual nature of the building contract in the case of an off-plan purchase. The quote I've been given is from Hancock v Brazier (Anerley) Ltd [1966] 1 WLR 1317 at 1324, which is also referenced in Harrison above:
“But when the contract is of a dual nature, as is the case with building contracts of this kind — and they are very common — namely, a contract to do two things, one to convey the land and the other to build a house, it is in my view quite clear that there can have been no intention on the part of the parties that the contract to build a house should disappear because the contract to convey the land is merged in the actual conveyance of it.
It's clear that a straightforward transfer of land and property, as would be the case with a home that was complete when sold, is not covered by a claim under the contract of sale - and therefore the CRA cannot apply in that case.
From the Harrison judgement
Eight of the ten lead Claimants claim against SHL in contract because they entered into a contract for sale with SHL. Those claims are made under the express or implied terms of the contract for sale. Two of the lead Claimants, the Knights (Plot 15) and the Frostwicks (Plot 34), are subsequent purchasers and do not have a contractual claim against SHL under an original contract for sale.
For the reasons set out above I find that SHL are liable to each of the Claimants for the breaches of Section 2 of the Buildmark Cover and the Defective Premises Act 1972 and in the case of each of the Claimants, except for Mr and Mrs Knight (Plot 15) and Mr and Mrs Frostwick (Plot 34), SHL is also liable under the relevant sales contracts.
A subsequent purchaser only has Buildmark cover (and the defective premises act if the problem is that bad) to rely upon.
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Thanks Neil, although it is interesting because our contract of sale with the builder has clauses they can come in to finish outstanding work, so in theory the building can be sold before being 'complete'.
We also asked for a copy of the inspection report the warranty holder carried out and we were told that we couldn't have it as it is their/Developers IP. They said they would write to the Developer asking if we could have a copy of this and they never got back to us. Have you been able to get a copy of this report at all?
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My 'resolution report' came directly to me from the NHBC, and Taylor Wimpey accepted all points within it. Therefore the existence of a workmanship issue in the lounge, and which must have been there at the time the building was constructed, is already common ground.
The disagreement is now about the existence of the same fault in the kitchen, and I'm not going through another year to get another NHBC to report on that (the NHBC are seeing it as a separate claim. For me it's just the same problem either side of a wall). I'll just gather evidence it is the same problem and then put that in the final claim for damages against the builder
As the NHBC keep reminding me, it is the builder that is responsible for the warranty in the first two years, but they are liable under the common law for six years for damages anyway for faults that arise as a result of their - if you have a build contract with them rather than just a transfer of property.
After going through all this rigmarole it seems to me that the best approach is just a good old 'claim for damages' under the common law if the builder refuses to play ball.
Until we get the New Homes Ombudsman that can award damages and force a builder to do work, that looks like the easiest option. Everything else has been a colossal waste of time.
This last weekend was a year since I opened the case with my legal cover provider over this. I'm not that much further forward.
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Most of the plc housebuilders contracts state that work will be carried out in a workmanlike manner and to building regulations and warranty standards. Any defect that arises may be due to non compliance or bodging which would then be a breach of contract.
As I said previously the Consumer Rights Act 2015 does not and will never, apply to new homes.
Whilst there has been some notable cases (Harrison & Ors v Shepherd Homes Ltd being the most quoted) this does not mean legally that the CRA will apply. The argument will only serve to make those within th legal profession involved with any claim more wealthy.
It should also be noted that plc housebuilders have deep pockets when it comes to defending homebuyer's legal action regarding expensive to fix defective new homes as this will have repercussions throughout a development perhaps nationally as was the case with Persimmon lake of cavity fire barriers.
The NHB C should not be calling each claim for the same defect but in a different room a separate claim. This really does smack at collusion with the housebuilder.
Finally the New Homes Ombudsman is probably the best and easiest route to get justice for new homebuyers with defective homes. However, the Conservative government has "consulted with stakeholders" aka "asked the housebuilders what they can live with" and what is currently on the table will not be retrospective that is use of the NHO will only be available to those buying after it has been set up. Even then the upper claim limit is just £50,000 and most of the judgements will be based on a Code of Practice drawn up with discussion and input with the housebuilders and their representatives.
Even now, over three years since a statutory New Homes Ombudsman was announced by the then housing minister, the late James Brokenshire (on 1/10/18) even the proposed voluntary new homes ombudsman is still not in operation.
On a positive note, the requirement for a New Homes Ombudsman is about to be enshrined in law as part of the Building Safety Bill, which gives the secretary of state for Housing the power to intervene if it is found the new homes ombudsman (as currently proposed) is not working for new home buyers.
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My 'resolution report' came directly to me from the NHBC, and Taylor Wimpey accepted all points within it. Therefore the existence of a workmanship issue in the lounge, and which must have been there at the time the building was constructed, is already common ground.
The disagreement is now about the existence of the same fault in the kitchen, and I'm not going through another year to get another NHBC to report on that (the NHBC are seeing it as a separate claim. For me it's just the same problem either side of a wall). I'll just gather evidence it is the same problem and then put that in the final claim for damages against the builder
As the NHBC keep reminding me, it is the builder that is responsible for the warranty in the first two years, but they are liable under the common law for six years for damages anyway for faults that arise as a result of their - if you have a build contract with them rather than just a transfer of property.
After going through all this rigmarole it seems to me that the best approach is just a good old 'claim for damages' under the common law if the builder refuses to play ball.
Until we get the New Homes Ombudsman that can award damages and force a builder to do work, that looks like the easiest option. Everything else has been a colossal waste of time.
This last weekend was a year since I opened the case with my legal cover provider over this. I'm not that much further forward.
Hi Neil,
Have you got anywhere with your creaking ceiling? I have been having a similar issue and already had four different investigations and my builder has no idea what is causing the creaking. It absolutely drives me crazy now and I am so determined to have it resolved.