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Author Topic: Creaky Ceilings and Missing Insulation  (Read 9452 times)

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NeilW

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Re: Creaky Ceilings and Missing Insulation
« Reply #15 on: September 17, 2021, 04:43:37 pm »
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?


New Home Expert

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Re: Creaky Ceilings and Missing Insulation
« Reply #16 on: September 30, 2021, 08:45:49 am »
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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NeilW

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Re: Creaky Ceilings and Missing Insulation
« Reply #17 on: September 30, 2021, 09:39:02 am »
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:

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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.



NeilW

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Re: Creaky Ceilings and Missing Insulation
« Reply #18 on: September 30, 2021, 10:01:07 am »
The main judgment is here 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.


NeilW

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Re: Creaky Ceilings and Missing Insulation
« Reply #19 on: October 04, 2021, 09:26:05 am »
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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Re: Creaky Ceilings and Missing Insulation
« Reply #20 on: October 07, 2021, 09:43:11 am »
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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NeilW

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Re: Creaky Ceilings and Missing Insulation
« Reply #21 on: October 07, 2021, 10:38:01 am »
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.


Kate123

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Re: Creaky Ceilings and Missing Insulation
« Reply #22 on: October 07, 2021, 03:20:29 pm »
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!

NeilW

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Re: Creaky Ceilings and Missing Insulation
« Reply #23 on: October 07, 2021, 04:36:01 pm »
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:

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“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

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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.

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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.

Kate123

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Re: Creaky Ceilings and Missing Insulation
« Reply #24 on: October 18, 2021, 09:55:32 am »
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?

NeilW

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Re: Creaky Ceilings and Missing Insulation
« Reply #25 on: October 18, 2021, 11:38:51 am »
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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Re: Creaky Ceilings and Missing Insulation
« Reply #26 on: October 22, 2021, 12:12:22 pm »
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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michalbuilder

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Re: Creaky Ceilings and Missing Insulation
« Reply #27 on: January 20, 2022, 08:38:10 pm »
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.