Court Action in Scotland

New Build Inspections

sophiejay1

New Member
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.
 

sophiejay1

New Member
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

New Member
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/SearchCo.asp?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

Administrator
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.org.uk/rep_pub/reports/1991/fulltext/299c2.pdf
 

sophiejay1

New Member
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

New Member
NHBC warranty

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
 

Kris C

New Member
Know any aggressive lawyers?

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

New Member
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.
 

marlyn1

New Member
Still going down the court action road

I began this thread a while ago under the previous user name. I just thought i would update those who are still desperately trying to get their houses repaired. Please check your house insurance and any funds you pay into at work that may cover you for legal assistance that will enable you to go for a court action.

It does take a while and most lawyers will want a settlement prior to going to court. It's not an easy route and involves lawyers letters backwards and forwards. You can look on the Scottish Court website to ascertain ongoing actions with your builder.

I think the only way forward is for the builder to be named and shamed and people do deserve the right to have their nightmare exposed in court.

I will be keen to provide anyone with advice on court action (Scotland) based on my experience.

If you have the opportunity raise an action.
 

smcg

New Member
Hi

I have just come across this thread and would be very interested to hear what you did to take action against a builder. I live in Glasgow. Our story is too long to get into and after 2 years, although we have fixed all the problems in our house- costing in excess of £70,000- we have hit a brick wall regarding legal action as it simply costs too much. We have had to settle with helping other victims of the builder and the Project Manager involved (who is currently facing a fraud charge) and making their lives as difficult as possible, we still want to pursue them for at least some of our money back. We built a house and we engaged a PM who brought in a builder - who worked together to basically rip us off. They left without finishing the build and what was done had to be basically taken apart and redone. 2 structural engineers were involved in writing reports on the structural defects of the build so at least we have professional reports to back up what we are saying. The whole thing nearly brought us to bankruptcy and the stress, as you will understand, was at times unbearable. But we came out the other side , but have found no help, nothing is in place to stop these people and we have had to fight every step of the way to get the police involved - and even then they didn't want to touch the builder just the PM. They felt this was a civil case and could be dealt with through trading standards - who felt they couldn't deal with it. Unbelievable. Any advice would be so gratefully received.
 

marlyn1

New Member
Court Action

The update re court action in Scotland. It would appear that most solicitors do not want to exert themselves with property issues. The process is long and i would recommend if sourcing a solicitor to act on your behalf ask them what experience they have in the building arena. The process is slow and remember the builder if a company will have a solicitor who is well versed on the building regulations and legislation and will try to run circles with technicalities such as the correct company name etc.

There are very few solicitors out there who are interested and who have a clue what they are dealing with. They will be keen to take your initial business and advise you that you have reasonable grounds for a case but as the matter progresses and a court date becomes apparent they all of a sudden start back tracking and their performance is poor perhaps due to being out with their comfort zone.

Remember also they are solicitors, they are all members of the law society and although work for independent firms they are working in the same social circles.

Please remember to check any legal fees you have contributed to through your house insurance and employment that may be able to pay for your legal fees which are expensive for not a lot of action.

Please remember cases submitted have to be individual and cannot be raised as a "group". Your starting point is to evidence that you have suffered a loss as a result of the builder, exactly what you have been out of pocket not just mere inconvenience or compensation.

A long road, if you thought waiting for the builder to come back to carry out repairs was long then you will have good experience for the legal battle. However the more people who stand up to them the better.
 

smcg

New Member
Thanks Marlyn1 we have gone through 2 lawyers and the first was less than useless and the other we spent 2k and his advice was to think very carefully before proceeding as both the builder and Project Manager (PM) didn't have much in the way of assets. Not good value for money. He is experienced in construction and building contract disputes. But I agree really pointless. Our household insurance will not cover legal expenses for building work and our employment/union membership only covers legal expenses re accidents, work related issues.

However, the PM's company is 'owned' by the wife who is in full time employment with the NHS (pension) and owns the house (possible small amount of capital). So there may be some assets here. There is little point in pursuing action against anyone unless they have assets and that's what you have to determine first. Neither the PM (wife) nor the builder is a limited company - sole traders so we could go after their assets once we establish what they are. The builder to date has not engaged a lawyer and not sure if he will unitl the lst minute. I have investigated his insurances policies to see if he has liability insurance - he doesn't. Neither does the PM.

I am considering going through the small claims court to have returned the PM fee (15k in 3 installments) so to meet the 5k threshold will try going after each separate installment in separate actions. Also the builder- as our new builder has invoiced us for separate bits of the work- mostly under £5k we could consider doing something similar. I'm not sure if this will work - any ideas how hard the Sheriff court will be on multiple but separate claims?. I want to try and use the system to my advantage for a change and do without solicitors.
 
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