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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I bought a property in October 2012 which came with an LABC

Resolved Question:

I bought a property in October 2012 which came with an LABC warranty and all the required documentation meeting building regulations.
Since moving in, the builder failed to resolve the issues we have found with the property, I have therefore had to make a claim against the warranty for a number of these issues.
The claim is being dealt with by MDIS insurance who I believe to be underwriters for LABC. It has taken a year to slowly resolve the majority of the issues. One of the main issues is concerning the soundproofing of the party wall between the houses.
When we purchased the house, there was a sound proofing document that had been signed off as meeting the correct regulations by LABC or the local council, since making the claim MDIS have stated that the provided document was not produced by an approved company for this type of work and have since sent and independent company www.noise.co.uk to perform a new sound test and this has now failed to meet regulations.
MDIS have proposed that the entire internal wall be removed and replaced with the relevant materials; this will include permanent moving of the internal staircase and the loss of approx. 3 inches in dimensions to our internal space.
I would like to understand the following;
1. Is there anything I can do given that LABC signed off the property and certificates in the first place?
2. Is it legal that they alter the dimensions of our property when I actually purchased a property that was effectively a larger size. We are now left with either have it done or suffer the noise problems from the neighbours.
3. If I decide not to go ahead with this work/claim and in the near future sell the property will I
a. Be liable for this in anyway should I sell the property?
b. Have to divulge the fact I made a claim and did not complete it during the sale either if or if not asked by the buyer?
c. Can the LABC/MDIS inform a future claimant that we made this claim previously or is this covered by data protection

It has taken 1 year to resolve minor issues so far and I have concerns about how long this will take to resolve and the fact that my family and I cannot reside in the property whilst this works takes place. They would of course re-locate us whilst this happens but I have 2 3 years old children and none of this is ideal.
All of this has left us wishing to move house sooner rather than later and I feel like we are being penalized for their initial failings with the property and the possible affect it will have on the future value with the loss of space. I appreciate that 3 inches is not a lot in the grand scheme of things but in the hallway this will have a large impact and potentially affect the re-sale value.

Many Thanks
Simon
Submitted: 3 years ago.
Category: Property Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

may I ask if you have ascertained from any third party contractor such as the consultants you mentioned new retained personally whether it is possible to bring the sound proofing up to the required specification using different materials or techniques which albeit maybe more expensive, do not result in your losing any space or at least so much space?

Customer:

Hi Joshua,

Customer:

I have not done this personally, however the contractors MDIS had sent to the property are a 3rd parties themselves, one did suggest there may be an ultra thin option that could be placed behind the wall albeit expensive, the consultants have informed me they have asked 2 independent companies and that they have been advised this is the only option which they have sent back to MDIS insurance. However I do not believe this is the only option

Joshua :

thank you. to understand correctly that they have given no explanation as to why the sinner solution was not proposed to the insurers other than cost?

Customer:

There were 2 sets of 3rd parties that visited the property at the same time, one was a structural engineering company and the other was for other issues we have at the property, it was a discussion between the 2 of them but the main contractors suggested they would look into the option but based on the noise experts advise only the moving of the stairs and walls was an option

Joshua :

thank you

Joshua :

I cannot seem to access the policy document. The closest I can get is the following link. Do you happen to have a link to the actual warranty policy document?:

Joshua :

http://www.labcwarranty.co.uk/warranty/residential/new-homes/summary-of-cover/

Customer:

The Structural Engineering 3rd party advised me they spoke to 2 noise expert companies and both said the same thing

Customer:

im just checking if i have a digital copy

Customer:

I only seem to have section 3.2 which relates to "Section 3.2 of the LABC New Home Warranty policy explained"

Customer:

Shall I upload this and the Certificate I have?

Customer:

that may be all the warranty covers at this time according to the cert

Joshua :

sorry for the delay in reverting to you. I do nothing to publish the warranty policy on their website at least that I can find. It is not absolutely essential but if you do have the text available of any particular document in your possession, and it is possible to easily may be helpful

Customer:

it looks like the site only allows uploading of images not files and these are PDF files i think this may give you what I have https://www.dropbox.com/sh/b5rsgu0i4zpwmwd/AEkfGV9_u_

Joshua :

thank you. that is very helpful. If you could just bear with me for a few minutes while a review...

Customer:

np

Joshua :

thank you for your patience. The warranty cover appears in essence relatively straightforward in so far as it provides that the insurer will where the developer has refused to rectify any defect which does not comply with the requirements of the LABC technical manual subject to the overall financial limits which unfortunately defined elsewhere but I presume are higher than the possible cost of this work and therefore presumably are not relevant. Technical manual in summary provides that sound proofing must meet building regulation requirements and based upon what you say, at present, your property does not meet these requirements and accordingly, the starting point in such circumstances is that the insurer is responsible for ensuring that it is rectified so that it does. this much you already know...

Joshua :

the developer contracted with you to supply a property according to specifications provided. Often developers contracts provide that it can make minor alterations to specifications providing that you are not substantively affected by such alterations. The loss of 3 inches of space could potentially be argued both ways as to whether this is a substantive reduction in space however the moving of the internal staircase was on the face of it appear to be a substantial modification.

Joshua :

In general terms, the insurer must provide for rectification of the work to as close as reasonably possible to the original specifications for the property. This obligation only goes so far as is reasonable. accordingly, if it is impossible to soundproof the wall in any other way than that proposed then on a practical basis there is no alternative; however, if you can identify alternative approach which albeit may be more expensive, but which complies with building regulation requirements that there is no basis for the insurers to refuse to provide for this work providing that the cost is not disproportionate with the benefit - that is to say very substantially higher than the alternative method proposed so as to make the costs and reasonable

Joshua :

*unreasonable

Customer:

ok that makes sense

Joshua :

in the event that you agree to the work being carried out, as proposed, you may wish to consider reserving your rights as against the developer for breach of contract to the extent that the reduction in the size of your property is a material breach as a consequence of them failing to satisfy building regulations and in order for building regulations to be satisfied the property has been materially reduced in size. In principle, if you were to do this, you would have the potential for a claim against the developer for any loss in value to your property as a consequence. Whether this would be worthwhile would be another matter but reserve your position I letter to the insurer copying in the developer leaves the possibility open to you in the future

Joshua :

if you decided not to have the work you carried out ultimately, you would need to consider that you would need to declare the dispute with the builder to any buyer and they therefore would know about the sound proofing issues. This is because the matter would need to be declared of a property information form which is almost universally requested by the buyers solicitor. Failure to disclose the dispute would amount to a misrepresentation which would leave you open to a potential claim from any buyer

Joshua :

accordingly, in my view an appropriate way forward may be to perhaps consult the sound insulation specialists you initially retained or another contractor of your choice and ask that they advise whether there is an alternative approach to that proposed by the warranty provider to rectify the issue which is both cost effective but also minimises loss of space.

Joshua :

If you find that there is an alternative approach which is not exorbitantly expensive which minimises loss of internal space I can see no reason why this should not be put to the insurers and that they should approve the same. Obviously the insurer will look to minimise its liability however it is primary obligation is to rectify and where possible, this should be done as close as possible to the original specification.

Joshua :

ultimately in any event, the insurers are going to be claiming their exposure back from the developer anyway a single developer is not insolvent and social ultimately not make a great deal of difference to the insurer albeit of course this is a matter entirely between the insurer and the developer

Joshua :

is there anything above I can clarify for you any further?

Customer:

thank you for all of the info, yes there is a couple of things...

Customer:

I have never seen a question asked about if a seller has made a claim on insurance or warrenty, assuming this was not asked at a point of sale and therefore not delcared i assume i would not be liable

Customer:

?

Joshua :

www.lawsociety.org.uk/advice/documents/TA6-form-specimen/‎

Customer:

also, if i choose not to have the work done and i sell, the warranty is transferred, if this is within the next 18 months the insurer has said that they would cover the new claimant should they make the same claim, however would they be abel to advice that i made this claim before?

Joshua :

the above is the law society property information form that is required to be completed by the seller as a matter of standard practice. you will note section 3. Failure to disclose correspondence with the developer and insurers under this section would likely amount to a misrepresentation

Joshua :

notwithstanding the above, if you were to sell, and the warranty transferred, the new buyer would have a right to any claims history information in relation to the warranty product albeit without your personal information

Joshua :

is there anything else I can help you with?

Customer:

Ok thank you very much for your help and info it has been most useful - I think you have covered everything I needed

Customer:

many thanks

Joshua :

A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me

Customer:

thanks

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

Customer:

great i will do that

Joshua :

Many thanks

Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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