Subsidence issues

[Kirstl]

Hoping someone can help! We bought our house in 2011. It was a new build. Within a year we realised the property has some major issues with huge gaping holes. It took us over a year to get the building firm to fix the house. In the course of it all it turned out that had prior knowledge of the subsidence. We have since tried to sell the house as our little boy has chronic lung disease and mobility issues so the house is not suitable. We can't sell it because of the past history. We have been going through legal proceedings since the beginning and so far we haven't got any where. Can any one advise who we can go to? Many thanks in advance

[Openlaw15]

Re: Subsidence issues

Hoping someone can help! We bought our house in 2011. It was a new build. Within a year we realised the property has some major issues with huge gaping holes. It took us over a year to get the building firm to fix the house. In the course of it all it turned out that had prior knowledge of the subsidence. We have since tried to sell the house as our little boy has chronic lung disease and mobility issues so the house is not suitable. We can't sell it because of the past history. We have been going through legal proceedings since the beginning and so far we haven't got any where. Can any one advise who we can go to? Many thanks in advance

Was it subsidence or ground heave? When buying the land the builders would generally pay for lawyers to do land searches and report back to them. Who are you saying had prior knowledge? If the builders had prior knowledge that the buildings were likely to be affected by subsidence sold the property to you but omitted to tell you these details, it is potentially fraud (ie misrepresentation for another's loss, ie yours), in addition to contract and tort claims. The difference in contract and tort is that contract will relate to the property alone but tort relates to indirect consequences. If your lawyer did not find this information out where you paid for his reasonable services, it is potentially contract and tort damages' claims too.

[Kirstl]

Re: Subsidence issues

We have a report dated prior to us moving in stating there was movement which was abnormal and was suggestive of subsidence. Our Solicitor knew about it but has never done anything about it. We know we need to change solicitors but not sure how to find one as this one came recommended. Any advice would be gratefully received x

[Openlaw15]

Re: Subsidence issues

We have a report dated prior to us moving in stating there was movement which was abnormal and was suggestive of subsidence. Our Solicitor knew about it but has never done anything about it. We know we need to change solicitors but not sure how to find one as this one came recommended. Any advice would be gratefully received x

Have you tried contacting the Law Society? They will give you the names of 3 or 4 solicitors on their register in your area. You can make a complaint to the Legal Ombudsman and report your solicitor to the Solicitor's Regulation Authority, if they're in breach. You say a report, I assume from the surveyor, your surveyor? Is your surveyor liable, did you pay for a structural engineer's report prior to purchase? Is the property purchased by a mortgage or outright? Recommended solicitors are not always a good thing, as not all property issues are the same especially ones that turn out to have had serious subsidence problems which should have been brought to your attention at least before before the change of contracts' stage.

[Ripped-Off]

Re: Subsidence issues

Firstly, devaluation of property (if that is what you are thinking) is classed as pure economic loss and hasn't been recoverable in negligence (tort not contract) since Murphy v Brentwood [1990]. However, before we start to go down the wrong path with this, can you provide more details, particularly in relation to what proof you have that the builder knew of the subsidence. This may all have been 'above board' and the builder should have taken this account when designing the foundations. If the builder has been negligent then you have a contract of sale for the property with the builder, presumably you did buy it from the builder if it was new?

Now, I'm also a little confused... If you bought the house new in 2011, it should still have a good few years remaining on the NHBC warranty. Does it have the warranty and have you contacted NHBC (National House Building Council)?

Also, when you say 'gaping holes' have they affected the structural stability of the property? Where were/are they; in the garden, in the living room (no pun intended, ground floors have been known to collapse), at the side of the house???

[Kirstl]

Re: Subsidence issues

Thanks for replying. The report was actually one they undertook before we moved in. One wall had been rebuilt and this report was commisioned by the builders following this. We found out about the report from neighbours and workers from the builders who had seen the work and insisted on having a copy once the issues started. The report said that subsidence could not be ruled out and that it would be a wait and see sitution. This was done before we bought the house. The cracks were everywhere( every room and in the external walls), the doors didn't shut , the windows were loose and the downstairs sloped. After a long battle where we involved nhbc etc we did get the remedial work done ( full underpinning) where we moved out for 6 months.

The problem we now have is we can't get a buyer and need to move. We had a buyer but when we supplied the buyer with the report from subsidence company they felt it was too ambiguous on cause and as such felt it was too much of a risk. They also felt the building firm were not to be trusted as they have had to fix lots of properties on our development. The issues with those properties were not due to subsidence but an error in distance between floor joists meaning they had to redo the flooring in all these properties.

We had decided to accect the loss in equity( we had accepted an offer £25,000 below asking price and had marketed the property £25,000 below the rate agents valuations to take into account issues) but as it is we really are in a bad sitution as it would seem even when we have been transparent with buyers from the start we can not sell it and the house is not suitable for our little baby.

[wales01man]

Re: Subsidence issues

Was there a NHBC warranty on this property?

[Kirstl]

Re: Subsidence issues

There was an nhbc cert

[Ripped-Off]

Re: Subsidence issues

I think what you are saying is that had you been given a copy of the report before you exchanged contracts, then you would not have gone through with the sale.

It seems to me that the remedy you seek is to recover the difference in market value because you may have to sell your house at a significant loss? This is not generally recoverable under the tort of negligence. However, if you have proof that you were given negligent advice that has or will cause you to suffer loss, then you may be able to recover that loss in the tort of negligence under the Hedley Byrne principle. But, even if you could sue in negligence, the question then is 'Was that loss a foreseeable consequence of the negligent advice?'

The builder has fixed the defects; whether he is responsible for the future loss in value is not an easy question to answer. I would start by looking through your warranty documentation, copies of the transfer deeds and other relevant paperwork. Also check the documents to see if there is any mention of subsidence or lack of which might help? What about the searches, what did they reveal?

Other factors to consider is your home insurance policy, or any other policy that may contain legal cover as well as the obvious subsidence. If so you can let them worry about who to sue and you can concentrate on your family.

Two final points; I'm not certain if you have to actually incur the loss before the cause of action accrues, or when the Limitations Act will prevent you from making a claim. As it stands you may be close to becoming statute barred.

[Openlaw15]

Re: Subsidence issues

Firstly, devaluation of property (if that is what you are thinking) is classed as pure economic loss and hasn't been recoverable in negligence (tort not contract) since Murphy v Brentwood [1990]. However, before we start to go down the wrong path with this, can you provide more details, particularly in relation to what proof you have that the builder knew of the subsidence. This may all have been 'above board' and the builder should have taken this account when designing the foundations. If the builder has been negligent then you have a contract of sale for the property with the builder, presumably you did buy it from the builder if it was new?

Now, I'm also a little confused... If you bought the house new in 2011, it should still have a good few years remaining on the NHBC warranty. Does it have the warranty and have you contacted NHBC (National House Building Council)?

Also, when you say 'gaping holes' have they affected the structural stability of the property? Where were/are they; in the garden, in the living room (no pun intended, ground floors have been known to collapse), at the side of the house???

there are exceptions to the pure economic loss rule

[Openlaw15]

Re: Subsidence issues

I think what you are saying is that had you been given a copy of the report before you exchanged contracts, then you would not have gone through with the sale.

It seems to me that the remedy you seek is to recover the difference in market value because you may have to sell your house at a significant loss? This is not generally recoverable under the tort of negligence. However, if you have proof that you were given negligent advice that has or will cause you to suffer loss, then you may be able to recover that loss in the tort of negligence under the Hedley Byrne principle. But, even if you could sue in negligence, the question then is 'Was that loss a foreseeable consequence of the negligent advice?'

The builder has fixed the defects; whether he is responsible for the future loss in value is not an easy question to answer. I would start by looking through your warranty documentation, copies of the transfer deeds and other relevant paperwork. Also check the documents to see if there is any mention of subsidence or lack of which might help? What about the searches, what did they reveal?

Other factors to consider is your home insurance policy, or any other policy that may contain legal cover as well as the obvious subsidence. If so you can let them worry about who to sue and you can concentrate on your family.

Two final points; I'm not certain if you have to actually incur the loss before the cause of action accrues, or when the Limitations Act will prevent you from making a claim. As it stands you may be close to becoming statute barred.

if the builders sold the property knowing it suffered from subsidence but omitted to tell the owners, it is fraudulent where there then is no limitation period applicable. In general land claims can be made within 12 years.

[Ripped-Off]

Re: Subsidence issues

there are exceptions to the pure economic loss rule

Please educate me on this or point me to the relevant authority.

if the builders sold the property knowing it suffered from subsidence but omitted to tell the owners, it is fraudulent where there then is no limitation period applicable.

Generally, I cannot agree with this statement, though please feel free to expand on your limitation comments. House builders build on mineshafts and waste tips all the time and don't disclose this information unless the prospective buyer specifically asks. That doesn't mean that they are all fraudulent. The conveyancer has a duty to find out what lies beneath the house, that's what you pay them for!

The builder has a duty to exercise reasonable skill and care to ensure that houses built on these sites have adequate foundations to prevent subsidence. In the alternative, was the conveyancer/solicitor negligent in that they failed to appreciate the type of site? Both these suppositions formed the thrust of my argument but with insufficient information it is almost impossible to determine.

In general land claims can be made within 12 years.

Can you expand on this as it is too vague for comment.