Category Archives: conceyancing

Liability of an Approved building inspector under s1 of the Defective Premises Act 1972

The recent case of Heron’s Court v Heronslea & others [2018] EWHC 3309 (TCC) has highlighted the extent to which an approved building inspector can be liable for breach of duty under s.1 of the Defective Premises Act 1972 (“the Act”). In short, they are not liable, however, a more detailed consideration of the judgment reveals the reasons why.

The case facts

The Claimants were the Lessees and Management Company of Heron’s Court, a block of flats in Shenley Hill, Radlett. They brought a claim against the developer, main building contractor, the National House Building Council (“NHBC”) and NHBC Building Control Services (“BCS”). It is the claim against the BCS which is of concern to us here.

Under s1 of the Act ‘A person taking on work for or in connection with the provision of a dwelling owes a duty to see that the work which he undertakes is done in a workmanlike or professional manner, with proper materials so that the dwelling will be fit for habitation when completed’.

The alleged breaches

The Claimants alleged that there were 101 individual breaches of building regulations and that BCS was in part liable for them as it had taken on work ‘for or in connection with the provision of a dwelling’ which gave rise to a duty on them to ensure that the work done was done in a workmanlike or professional manner.

BCS applied to strike this claim out on the basis that the claim either disclosed no reasonable grounds for bringing the claim and/or that the claim was devoid of particulars to the extent that it amounted to an abuse of process.

The central point in dispute was whether an approved inspector fell within the scope of s1 of the Act as someone who was undertaking work ‘for or in connection with the provision of a dwelling’.

The Judge’s view

The Judge considered the role of an approved inspector as introduced by the Building Act 1984 and subsequent regulations. He then considered the specific wording of s.1 of the Act and the Law Commission report that was commissioned prior to the enactment of the Act. Having considered the pertinent paragraphs of that report the Judge went on to state at 31:

“It is, in my judgment, abundantly clear from the fair reading of those parts of the report, that the Law Commission considered that those who could fall within clause 1, other than builders, would be architects, designers, and those supervising the construction of the works on behalf of one of the building or designing parties. That is quite different from an inspector, whose essential function is not to contribute in any meaningful way to the design or construction of the building, but rather to certify simply whether that design or construction is lawful in a building sense, and that is the extent of the role.”

Review of Judgment

Of particular persuasiveness to the Judge’s conclusion was the decision of the House of Lords (as it then was) in Murphy v Brentwood District Council [1991] UKHL 2 in which their Lordships stated that the creation of a new area of responsibilities for local authorities (they were the only providers of building inspection at that time) was not a proper exercise of judicial power (i.e. it was a matter for Parliament to create such a new area of responsibility).

This case, therefore, clarifies the position that approved building inspectors do not fall within the scope of the Act and are therefore are not liable where work has not been carried out in a workmanlike or professional manner. Such a claim must be brought against the actual parties who carried out the work.

Robert Blair – Cohen Cramer 17/07/19

Potential problems with a POCA conveyance

As part of POCA proceedings, you will often look to the sale of a property to satisfy your confiscation order. If, as part of your order you are required to dispose of residential or commercial property we strive to complete the sale within the required and appropriate timeframe as set out in POCA 2002.  This is a maximum of three months and this can be extended to up to six months on application by your POCA solicitors. You do however need to be aware that there are many different issues that can arise throughout the life of a POCA property sale once solicitors have been instructed. In this short blog, I am going to look at a couple of the more common problems that can arise and how we can help as specialist POCA conveyancers.

How long will my sale take?

We are frequently asked how long it will take for the sale to complete. The average timeframe to sell a property is between 4-12 weeks from the acceptance of an offer to the completion of the sale. The transaction length can vary from this though depending on issues outside of your control, particularly when the property is restrained by the Prosecution.  Our POCA department, led by Lauren Bowkett, can assist you if the time runs over to obtain an extension of time to pay by a maximum of six months if necessary.  If you do not apply for the extension you may get a custodial sentence.

Varying the Restraint Order

If you are going to sell your property to pay your confiscation order you need POCA solicitors to first vary the Restraint Order, if one has been served on you.  The Restraint Order is an order from the Court stopping you from disposing of your assets and protecting them whilst the proceedings against you are ongoing.

Once you are ready to sell your property to pay your confiscation order and you have found a buyer our POCA team can apply to vary your Restraint Order to allow your property to be sold with consent from the Court.  If you do not instruct POCA solicitors to do this, you are in breach of the Restraint Order and there will be consequences.

Restrictions on title

If the balance of the proceeds of the sale (after the mortgage is paid off) is to be used to pay a confiscation order, then this is usually noted on the title deeds. A restriction is placed on the Title deeds to the property at the time the seller’s assets are restrained by the Prosecution.  If you are in possession of a restraint order and your property is listed on it then it is likely that there will be a restriction on the Title Deeds.  Most conveyancers will not feel comfortable dealing with this type of work as they do not have the experience of dealing with properties restrained under POCA 2002.  But our POCA conveyancing department knows exactly how to help.

The purchaser’s solicitor may request an undertaking from us to remove this restriction to allow the purchase to proceed. However, this is not how the restriction is dealt with.  The removal of such a restriction can only be removed by the Prosecution on an application, made by them, to the Land Registry.  As we are specialists in this area we can assist in ensuring that this application is made by corresponding with the Prosecution in respect of the sale. We will make arrangements with them to pay the proceeds of sale towards your confiscation order, which allows the restriction to be removed and the sale completed.

Redemption Statements

The restriction placed on the title by the Prosecution can also lead to difficulties obtaining redemption statements from mortgage providers. A redemption statement is a document provided by the mortgage provider that confirms the exact amount, including any applicable fees and interest due, to fully repay your mortgage on that date.

It may seem strange that a mortgage provider would refuse to provide a redemption statement for the sale however, it is not uncommon.

If such a situation does arise then delays can occur. Mortgage providers timeframes for dealing with queries are generally a lot longer than conveyancers. Substantial delays, in some cases over a month, can arise despite them having no basis for refusing to provide a final statement.  It is therefore extremely important that you have POCA solicitors and a POCA conveyancing solicitor instructed who have the knowledge, experience and expertise to ensure the smoothest and shortest sale of your property.

Be prepared for delays

Regardless of the purpose of the conveyance, delays are inevitable, and you need to recognise this from the outset particularly if the property forms part of POCA proceedings.

The above examples are just a couple of the many ways that a conveyance can be delayed beyond the average 4-12 weeks.  Each sale is different and there is no definitive timescale that can be given for the completion of a property sale.  However what we do know from our experience is that delays can arise on properties which form part of confiscation proceedings by no fault of your own and that is why it is so important to get the right solicitors to help you to make sure you do not get a custodial sentence for not paying your confiscation order in time.

Get the help you need

To speak to someone who can help get in touch today:

  • call: Fiza Ditta on 0113 2440597
  • email: poca@cohencramer.co.uk
  • book a callback using the form at the bottom of this page

The above information relates to freehold property only.

Information correct as of May 2019