Category Archives: property

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

Top Tips for Building Contracts

From a complete build to a new porch whatever your building project there is going to be some measure of hassle and upset; it is the nature of the beast but careful planning and preparation can reduce the aggravation and stress.

One of the more regular problems we encounter is problems and issues with the building contractor so before a sod is turned, a brink laid or a nail hammered you need to drill down in to your agreement with them.

Here are our top tips to make sure you get the build you agreed at the price you agreed.

1.      Put everything in writing. Everything means everything. If you have a meeting with your builder and variations or additions to your contract are agreed, follow this up with an email or text which sets everything out. If a dispute were later to arise and not everything was written down, then it would be the job of the Court to find as a matter of fact who to believe – this is determined by looking at the contemporary evidence, witness statements and cross-examination. Many barristers pride themselves on their ability to successfully undermined another parties case, if you have contemporary written evidence supporting your case, the chances of them being able to do that are greatly diminished.

2.      Check whether the builder has insurance. This will give you reassurance should any issues arise later on.

3.      Be clear on price. Many builders give estimates or quotes for the work. It is important to establish whether the price given is a fixed price or an estimate. If it is an estimate you may want to get the builder to give a more accurate quote or an estimate of what other work they foresee with the project so that you can budget accordingly.

4.      Be clear on the scope of the works. This is easily achievable by having everything set out in a written contract. However, if you do agree things verbally, make sure that it is very clear what you have asked for, otherwise you may get a lot more (and pay a lot more) than you bargained for.

5.      Know your rights. Getting advice early is important. If you are unsure as to your rights, are in dispute with a builder, or are having problems with a new build property, then get in touch at:

7th August 2018

Transferring property as a gift – are you sure????

 

Nicola White of Cohen Cramer Solicitors looks at the pitfalls of being generous without being clever.

As a legal practice with recognised expertise in such matters we are regularly contacted by people considering transferring property to their children.  Their reasons for wishing to do so include a desire to avoid having to sell the property to pay care home fees, as a means of reducing an inheritance tax liability, a token of love and affection or a wish to see their family benefit from their generosity whilst still alive.

If you are considering transferring property, for whatever reason, great care is needed to ensure that you fully understand the implications of the transaction and to make sure that the transfer is the best way to achieve your goals.  For example you may still face an Inheritance tax liability if you transfer your home but continue to live in it.

You also need to be aware that a transfer is just that – you are giving up your rights to your property.  Once transferred the property belongs to the recipient and they can do with it as they wish.

This was the issue faced by Sheena Godden recently who failed in her bid to have a transfer to her son and daughter-in-law over turned.  In 2012 she transferred her estate worth about £1.2 million, to them, after they agreed to move into the property and, at their own expense, renovate it back to its former glory.

Mrs Seddon later claimed that she did not understand the full implications of the transfer and believed she was simply giving the couple a right to live in the property.  The judge did not believe her and accepted that she had known exactly what she was doing but had changed her mind about the gift following a family fall out.  Mrs Godden is now facing legal bills reported to be in the region of £200,000 this is in addition to no longer owning her £1.2 million estate.

Even though ultimately successful her son and daughter-in-law had to endure defending court proceedings issued against them by Mrs Godden; not a pleasant experience for any family.

Whether you are planning to transfer your property, or whether you are the recipient of the property this salutary tale shows the importance of taking independent legal advice and the importance of both parties fully understanding the nature and implications of the transfer.

So if you are either the person transferring or the recipient in such an arrangement speak to us first. It is a lot easier to get sound legal advice before anything is signed than to try and argue against it at a later date.

To get the advice you need contact Nicola White at Cohen Cramer Solicitors on 01132247813 or email at nicola.white@cohencramer.co.uk  for a free initial consultation.