Question 1

Faulty Building

Accepted Answer

Q: We have made a claim to NHBC for repairs to correct faulty building of three dormers. Our claim is for £2,880 and is supported by a report from a well-qualified and experienced roofing Company owner, and photographs of the clearly faulty work (on the flashings etc) which led to water damage inside three flats. Due to the minimum claim calculation used by NHBC there is no prospect of any payment to the leaseholders for necessary repairs to the interior of their flats. Also, with twenty-five apartments the cost of this roof repair will, following their method of calculating minimum claim values not lead to any payment. Our concern is that we have fifteen dormers and several velux windows and if the same faulty building work has been repeated, at some stage further major repairs will be necessary. We have therefore added to the claim the cost of a survey of the roof (to be carried out) and any necessary corrective work. Our difficulty is that the apartment block was built some nine years ago. We have asked NHBC to attempt to resolve the claim/dispute with the builder using their Resolution Service which they say is not feasible due to a defects liability period having expired. This seems to be a legal issue which we would wish to explore and challenge if possible. Where please could we discover the relevant information? In which contract? You have our documentation (lease etc.). A further issue we feel is that the NHBC approach to claims, treating even communal claims on an individual basis is outdated and unhelpful with so many more management companies responsible for apartment blocks. They have also been extremely slow and have asked for documents previously sent and acknowledged. We note they claim to be setting standards for building but are unwilling to pursue a builder for faulty work who is hiding behind a legal restriction. We look forward to your comments. Thank you. FPRA Legal Adviser Nick Roberts replies I have had a number of queries over the years involving difficulties with NHBC. About the best that can be said of the scheme is that it is generally more satisfactory than conducting litigation with builders! There have been a number of versions of the NHBC schemes over the years, but I think they have all had the common pattern of offering a short period of two years when nearly all defects are covered, and a period covering years three to 10 when only more serious, structural matters are covered. At an early stage – in the 1970s, I think - a variant of the scheme was introduced to cover blocks of flats, so that both the individual flats and the common parts enjoy similar cover. But a possible complication of this is that the 10 year period may have to run from the date when the first flat in the development was sold off. From a contractual point of view, the contract by which the original purchaser acquires the property normally includes a provision by which the builder/developer irrevocably agrees to offer the purchaser what is now called ‘Buildmark’ cover, and the purchaser signs up to it. The acceptance is sent to the NHBC, who then issue the documentation once the sale has been completed. When I was in practice (prior to 2001) this was always sent to the purchaser’s solicitor. In the early years of the scheme the paperwork would then get placed with the title deeds/registration documents of the property, but that meant that the documents that the owner would need to refer to were generally with his mortgage lender, rather than readily to hand. The documentation was at some time – it may have been in the 1980s - re-formulated, and presented in such a format that the solicitor was clearly requested immediately to pass the detailed Buildmark Booklet and details of the period of cover, etc., on to the purchaser, and to place with the documentation that was sent to the mortgage lender some form of certificate that the cover was in place. Of course, one drawback of this is that if someone subsequently acquired the property from the original purchaser, the original purchaser would have the Buildmark documentation, and would have to hand it on to the new purchaser. This should always happen, but often did not. (There are questions in the pre-contract questionnaire about such things, but if someone says that the documentation is lost or ‘to follow’ there is not a lot that a purchaser can do about it). What I suppose all this comes down to is that someone within your membership must surely have engaged a solicitor on their purchase who did his or her job properly and sent the Buildmark documentation on to their client, including the page which gives details of the relevant dates and period of cover (I seem to recall that at some point this page had to be stapled inside the Booklet, or inserted in a wallet inside the cover). In practical terms someone who is an original purchaser is more likely to have this documentation to hand than someone who is a second or subsequent purchaser. The original purchase contract - if one could be tracked down - is unlikely to be relevant, because it is unlikely to say anything more than that the NHBC Buildmark scheme guarantee will be offered, and that is invariably offered on standard terms. I hope that this does at least give you some idea of where the specific information that you require is likely to be found. There is of course a lot of general information about Buildmark on the NHBC website. [Submitted June 2016]

Question 2

Faulty Building

Accepted Answer

Q: We have made a claim to NHBC for repairs to correct faulty building of three dormers. Our claim is for £2,880 and is supported by a report from a well-qualified and experienced roofing Company owner, and photographs of the clearly faulty work (on the flashings etc) which led to water damage inside three flats. Due to the minimum claim calculation used by NHBC there is no prospect of any payment to the leaseholders for necessary repairs to the interior of their flats. Also, with twenty-five apartments the cost of this roof repair will, following their method of calculating minimum claim values not lead to any payment. Our concern is that we have fifteen dormers and several velux windows and if the same faulty building work has been repeated, at some stage further major repairs will be necessary. We have therefore added to the claim the cost of a survey of the roof (to be carried out) and any necessary corrective work. Our difficulty is that the apartment block was built some nine years ago. We have asked NHBC to attempt to resolve the claim/dispute with the builder using their Resolution Service which they say is not feasible due to a defects liability period having expired. This seems to be a legal issue which we would wish to explore and challenge if possible. Where please could we discover the relevant information? In which contract? You have our documentation (lease etc.). A further issue we feel is that the NHBC approach to claims, treating even communal claims on an individual basis is outdated and unhelpful with so many more management companies responsible for apartment blocks. They have also been extremely slow and have asked for documents previously sent and acknowledged. We note they claim to be setting standards for building but are unwilling to pursue a builder for faulty work who is hiding behind a legal restriction. We look forward to your comments. Thank you. FPRA Legal Adviser Nick Roberts replies I have had a number of queries over the years involving difficulties with NHBC. About the best that can be said of the scheme is that it is generally more satisfactory than conducting litigation with builders! There have been a number of versions of the NHBC schemes over the years, but I think they have all had the common pattern of offering a short period of two years when nearly all defects are covered, and a period covering years three to 10 when only more serious, structural matters are covered. At an early stage – in the 1970s, I think - a variant of the scheme was introduced to cover blocks of flats, so that both the individual flats and the common parts enjoy similar cover. But a possible complication of this is that the 10 year period may have to run from the date when the first flat in the development was sold off. From a contractual point of view, the contract by which the original purchaser acquires the property normally includes a provision by which the builder/developer irrevocably agrees to offer the purchaser what is now called ‘Buildmark’ cover, and the purchaser signs up to it. The acceptance is sent to the NHBC, who then issue the documentation once the sale has been completed. When I was in practice (prior to 2001) this was always sent to the purchaser’s solicitor. In the early years of the scheme the paperwork would then get placed with the title deeds/registration documents of the property, but that meant that the documents that the owner would need to refer to were generally with his mortgage lender, rather than readily to hand. The documentation was at some time – it may have been in the 1980s - re-formulated, and presented in such a format that the solicitor was clearly requested immediately to pass the detailed Buildmark Booklet and details of the period of cover, etc., on to the purchaser, and to place with the documentation that was sent to the mortgage lender some form of certificate that the cover was in place. Of course, one drawback of this is that if someone subsequently acquired the property from the original purchaser, the original purchaser would have the Buildmark documentation, and would have to hand it on to the new purchaser. This should always happen, but often did not. (There are questions in the pre-contract questionnaire about such things, but if someone says that the documentation is lost or ‘to follow’ there is not a lot that a purchaser can do about it). What I suppose all this comes down to is that someone within your membership must surely have engaged a solicitor on their purchase who did his or her job properly and sent the Buildmark documentation on to their client, including the page which gives details of the relevant dates and period of cover (I seem to recall that at some point this page had to be stapled inside the Booklet, or inserted in a wallet inside the cover). In practical terms someone who is an original purchaser is more likely to have this documentation to hand than someone who is a second or subsequent purchaser. The original purchase contract - if one could be tracked down - is unlikely to be relevant, because it is unlikely to say anything more than that the NHBC Buildmark scheme guarantee will be offered, and that is invariably offered on standard terms. I hope that this does at least give you some idea of where the specific information that you require is likely to be found. There is of course a lot of general information about Buildmark on the NHBC website. [Submitted June 2016]

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