Court Action in Scotland

[sophiejay1]

Has anyone got any advice on any sucessful court actions raised against a builder in Scotland?
If your property is so defective and you have employed a solicitor to represent you, is the homeowner responsible for paying in excess of £20,000 to make the property "fit for purpose" as required by Building Control, before any court action can be raised.

[Colin Jack]

sophiejay1,

Have you actually spoken to a Solicitor yet?

Do you have a Completion Certificate yet?

Colin.

[sophiejay1]

Yes, they advise they can only raise court action if we employ a third party to do the work, then we can take the builder to court to sue them. Who has an extra £20 -£30,000 kicking about for a house that should have been water tight in the first instance. It would appear lawyers can write out again and again to builders lawyers and they can ignore correspondence to the last minute and use a legal angle "awaiting clients instructions" as a response.

Yes the certificate of completion was issued by the Local Authority last year. Despite the house not being in a fit state for habitation when we took possession for it. Building Control state that the area was deemed low risk by NHBC.

All you want is the house fixed to sit back enjoy your life without stress.

[Colin Jack]

sophiejay1,

It is odd that a solicitor would say the work has to be done first, and then sue. Did they not mention anything about getting quotations for the work from a few other contractors, and then use the quotations as a basis for action?

I believe the arbitration system works the same way - the dispute is investigated on the basis of quotations and reports before any decision is made and before any further work is carried out.

Suggest a second opinion is in order.

You mention the house was not in a fit state when you took possession? Were you aware of the defect when you took possession? Was the builder aware of the defect when you took possession? Strange questions I know but depending on the nature and extent of the defect and when you or the builder became aware of it there may be some recourse via the Building (Scotland) Act. Unfortunately this is very murky water. If you think your builder is giving you the run around now, mention the Building (Scotland) Act and you will be lucky if you ever see them again. There is a very good reason for this and this is why all house builders tie you up with the NHBC. To keep you away from the Building (Scotland) Act.

What do you mean by “Building Control state that the area was deemed low risk by NHBC.”?

I have said many times before, the NHBC have absolutely no jurisdiction in Scotland with regard to Building Standards, Building Warrants or Completion Certificates. If you go to http://www.sbsa.gov.uk/register/Sear...?T=Design&ID=1 and click on “Check Registration of a Firm (Design)” or “Check Registration of a Firm (Construction)” and type NHBC in the Company Name box, you will not find them. This is because the NHBC are not an approved body and have no business making any comment on Building Warrants or Completion Certificates. Sad but most definitely true.

[Tony]

This may be of interest use too. Not 100% whether the Defective Premises Act of 1972 applies in Scotland:

Legal position of owners of defective homes
2.6.When considering the context in which reference services are provided it is obviously important to have regard to the protection that the law affords the purchaser of a new home which turns out to have structural defects.
2.7. The legal position at common law is clearest if the original owner of the defective home has a direct contractual relationship with those responsible for the defect, whether they be builders or architects. The terms of the contract will usually provide adequate protection for the owner although, as with any legal remedy, it will only ultimately be of value if those responsible for the defects are still available to be sued and are not, for example, insolvent. In the absence of express provisions, terms will be implied requiring
the dwelling to be constructed in a good and workmanlike manner and to be fit for human habitation. At common law, however, any subsequent purchaser of the home will only have a contractual remedy if it has been agreed that the original purchaser's rights can be assigned to him.
2.8. The inadequacies of the common law to protect subsequent purchasers of new homes led to the enactment of the Defective Premises Act 1972. Section 1 of the Act imposes a statutory duty on builders, developers, subcontractors, architects and others who take on work providing a dwelling to see that the work is carried out in a workmanlike manner, built with proper materials, and that the dwelling will be fit for habitation when completed. Although the statutory duty of care provided by the Act overlaps the common law duties, it improves the position of the second and subsequent purchasers of the new home,
and cannot be excluded by any exemption clause in the contract. On the other hand, the limitation period of six years for making a claim runs from the date when the home was completed, not from a later date when the defect was discovered.

From the Competition Commission website - http://www.competition-commission.or...text/299c2.pdf

[sophiejay1]

Correspondence from the Planning and Building Standards Services stated that

"The Building Standards Service does not provide a supervisory Clerk of Works role during the construction process. The legal responsibility lying with (your builder) to provide a dwelling in compliance with building standards. The documentation received from the developer confirmed compliance and following an inspection, this was accepted. this development would be treated as low risk as NHBC were providing an independent check."

[Mark D]

Hi

I assume that as you mentioned NHBC the warranty on the property is with NHBC. If that is the case the easiest thing to do is to snag the property and send this off to the builder with a copy to the NHBC. If the builder does not address the items then ask the NHBC for the resolution service. Don't expect to get anything done very quickly. The NHBC would give the builder a month to do the work, they will then arrange for an appointment which may take another month. A report is issued then the builder has 6 weeks (if you argue the NHBC will cut this time limit down). If he does not do it they will write to him a few times before they progress it which will take at least a month. They then get NHBC contractors to do the work and that could easily take another month. So at the minimum it will be 6 months from when you first report the problem and it could easily be 12 months.

Alternative is to employ a solicitor who will not know anything much about construction, which will take a few months and you will need to get a professional report done for him to say all the work you had to have put right needed to be put right. Sorry but there is not an easy route.

Not sure about the reference to NHBC not being able to do anything as their power is virtually the same as in England and Wales. The big difference with Scotland is only Local Authorities can do the Building Control.

Good luck

[SteveF]

I would be delighted to speak with Sophiejay1 if at all possible.

regards

SteveF

[Kris C]

How are you getting on with this problem? I have had much the same problem with a Glasgow builder who did a £50k extensionfor me and has taken the last payment and has not been back. We are now taking him to court but now know he's done this before to others and need to engage an experienced solicitor who can keep up with this slippery builder...

[tabithatabby]

can someone advise me as well then, we have a defective house, signed off by building control (joke), and NHBC (bigger joke), we were taken to court by the builder for not paying in full for an unfinished house, had to finally settle out of court. we lived in it for 2 years unfinished while it churned through the court to the point where the builder had managed to drain us of every penny and we could not fight it any more. in the interim we had to pay £000s to put right emergency repairs and get a building control completion certificate to avoid being evicted. we still have an unfinished house, are seriously out of pocket, and although we have some NHBC 2 year snagging left (they backdated it to when we moved into the unfinished house as we were made homeless in the process of buying the house as it wasn't built on time as well as being total crap, and then the cowboy asks for 40% more than the contract....this builder clearly knows exactly how to work the system).

IF you take them to court, then NHBC will drop it completely till the court case is settled so you get no help from them, we were taken to court by the builder once we qualified as being technically resident, i.e 30 days afterw e first slept in the house, so he knew exactly what he was doing as then NHBC said go away and we either had to pay him in full or defend the case till we finally had to settle. If you win, fine, but if you don't you will end up paying your fees, his fees and it will cost you around £50-60K to go all the way, if our builder is anything to go by so unless you have a very water tight contract and can really prove your case, you are just wasting money and you might as well use it to finish the house.

We are finding that despite settling out of court, NHBC seem to take the view, as we are finding that since it has been in court, they are refusing to honour any snagging. So the best you can do is argue the toss with NHBC to the end of their process, then see if anyone can advise you, or me, what to do next.

Although we had a 'property specialist lawyer' handling our case, they were not exactly great value, and rings were run around them by the lowlife on the other side, who knew exactly how to remove all our rights from us. In fact they tried to draw out the court procedure so that all the 2 year snagging period would be timed out....

Be very careful.