My Rights- 3 & a half years after purchasing a new build Flat?

Hairymonster

Hi All,

I have been staying in my flat for past 3.5 years and it is in my fathers name; I couldn't get the mortgage. So I moved in at the start of summer.

The problem I am having is that I have had a leak 3 years running in the flat and each year the builders have came out and fixed it but again this year as the rain came in; sure thing the leak(maybe not the same one but same area) is back.

Bit of info on the flat: I stay on 5th floor of 7; but flats above are not completely above; In the bathroom, 1x bedroom and the hall there is a flat roof above- I know this is a pretty poor design but I'm at my wits end on what right's I have against the builders fixing this problem properly and completely.

for the 1st 2 years I had warranty on the flat for general wear and tear.

Am I correct in thinking that under some house builders association I have rights for up to 10 years to make sure that anything built incorrectly has to be rectified?

Where do I stand legally on the fact that they have 3 times fixed a leak but has never properly been fixed. I only ever notice when heavy rain is in but it may be leaking onto but not through the plaster with lighter rain. I am worried about dampness because of this also.

I don't really want to go down the legal route and threaten legal action(I dont even know my right) because I can't afford to but I am frustrated in they havent fixed this leak properly in the time I have been in the flat .

I am also wondering when I come to sell (i'm estimating another 3 years) do I have to advise any potential buyers of this leak? do the builders still have a legal obligation to fix if it is still not rectified?

Any info on what I should do and what rights I have welcome

chris_m

Surely the roof is part of the fabric & structure of the building and, therefore, the responsibility of the freeholder and/or management company? Have you been dealing with them or directly with the builders? If the latter, maybe a better course of action would be to complain to the management company - the builders might take a bit more notice of them than of you?

Fire_Fox

Which country are you in, England and Wales or Scotland? What do you mean by the flat is in your father's name, does he rent or own it? If your father is the leaseholder he needs to be the one writing a letter of complaint not you as tenant. What do you mean he had a warranty, are you referring to the back end of the ten year NHBC guarantee or something else? If it is a new build when was it built?

Not really sure what you want us to say if your father want to enforce his rights yet he is totally unwilling to take any legal action. You as tenant have no contract with the builder or with the freeholder so no rights to enforce with them.

propertyman

The NHBC warranty will cover defects however the excess on the policy is normally applied to all the flats in the building so it's unlikely any small scale works will apply under the warranty.

You can file a claim online here
http://www.nhbc.co.uk/Warrantiesandcover/Homeowners/Problemswithyourhome/Claimsenquiryform/

it's a no cost thing.

Now your father still has a contractual remedy with the builder, but the low cost option is follow the pre action protocol on disrepair with the" person in control", be that a head leaseholder or the freeholder, For that you will need your lease as that establishes under the lease who is responsible for roof repairs.

It matters not that it is covered by an NHBC warranty, they are primarily responsible.

If you father refuses then there is the option of calling in the local authority who can inspect and require that person to effect repairs.

I would however say that as its unlikely you haven't formalised your arrangement, you will indemnify fully your father for any legal costs , and through a variety of ways can take this up as the primary claimant.

http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_hou

Hairymonster

Fire_Fox wrote: »

Which country are you in, England and Wales or Scotland? What do you mean by the flat is in your father's name, does he rent or own it? If your father is the leaseholder he needs to be the one writing a letter of complaint not you as tenant. What do you mean he had a warranty, are you referring to the back end of the ten year NHBC guarantee or something else? If it is a new build when was it built?

Not really sure what you want us to say if your father want to enforce his rights yet he is totally unwilling to take any legal action. You as tenant have no contract with the builder or with the freeholder so no rights to enforce with them.

I am in Scotland. I mean my father owns the flat; I understand if we go down the legal route it will be my father that has to deal with them as it is in his name. But I work with him and see him every day so it is very easy for me to liaise with him and the building company; when I have got them out for repairs in the past I have dealt with the builders(lets just say on my fathers behalf)

Thew flat was built probably 4.5 years ago as the whole block lay empty for a good while before they lowered prices. so Mines was empty for about a year.

There was a 2 year warranty on general fixings, boiler and such before it was handed over to a factor to look after.

I understand I have no "legal" footing as you put it; lets just say my I am in my fathers position when asking questions as will make things easier to understand.

I simply wanted to know what I(sorry my father for you to understand) can enforce the builders to do if they have built the property with a leaky roof under the notion it is in full working order. and have never fixed this leak.

Hairymonster

propertyman wrote: »

The NHBC warranty will cover defects however the excess on the policy is normally applied to all the flats in the building so it's unlikely any small scale works will apply under the warranty.

You can file a claim online here
http://www.nhbc.co.uk/Warrantiesandcover/Homeowners/Problemswithyourhome/Claimsenquiryform/

it's a no cost thing.

Now your father still has a contractual remedy with the builder, but the low cost option is follow the pre action protocol on disrepair with the" person in control", be that a head leaseholder or the freeholder, For that you will need your lease as that establishes under the lease who is responsible for roof repairs.

It matters not that it is covered by an NHBC warranty, they are primarily responsible.

If you father refuses then there is the option of calling in the local authority who can inspect and require that person to effect repairs.

I would however say that as its unlikely you haven't formalised your arrangement, you will indemnify fully your father for any legal costs , and through a variety of ways can take this up as the primary claimant.

http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_hou

Thanks for your helpful reply propertyman.

I'm a newbie this is my 1st flat(think most people starting out need parents help to get them on the ladder) so this is why it is in his name as I couldn't get a mortgage.

Sorry but what do you mean by freeholder and leaseholder; I'm a newbie so don't understand the jargon. It is owned by my father who has a mortgage on it. With the hope of soon either getting it into my name or if we sell me getting the equity for a deposit on a new flat.

This time I will probably just call the builders to get them out to repair but just can't handle the thought of every year this happening and wanted to know my legal standing; what I can say the builders must do(legally); do they have an obligation to make sure its fixed properly? if so what if they never properly fix it and the 10 year elapses? do I have any comeback

It's such a pain because its not only the leak they have to fix, they need to fix the leak, cut away roof plaster, refill the roof & re-plaster 3 rooms. It's a lot of work

xoAmyox

In my experience, complaining etc is not a resolution.

I sincerely hope your management company are better than my HA. I had a leak for over 2 years, that re-occurred randomly from the roof. The original builders took responsibility, and attended to repair on no less than a dozen occasions.

But to no avail, they just keep scratching their heads and saying they don't know.

So now I just leave the lovely leak, because I have no time or patience left with the HA/builders. They closed my complaint, and the management company refuse to allow the builders access. I can't take any more time off work/lose any more pay either.

chris_m

Hairymonster wrote: »

Sorry but what do you mean by freeholder and leaseholder;

In all probability (*), the freeholder is the person or company who actually owns the whole building, whilst the leaseholder (in this case your father) is the person who has bought the right to occupy a part of the building (the flat) for the period of the lease.
In effect you are your father's tenant, since he is not actually resident in the flat.

That is why any dealings "legally" need to be between your father and the freeholder or builder rather than you. Although there is no reason why you can't act on his behalf with his permission, there may be cases where his signature/authority may be required.

(*) there are some flats which are freehold, but they are very much the exception.

Hairymonster

chris_m wrote: »

whilst the leaseholder (in this case your father) is the person who has bought the right to occupy a part of the building (the flat) for the period of the lease.

Thanks Chris for your reply; that makes more sense but the flat is bought and mortgaged so I thought ownership would be indefinitely rather than leased years?

My flat was bought for £190k? surely if there were leased terms I would not own the flat indefinitely and this would depreciate? where as I(sorry my father) purchased with a view to sell in a few years

Hairymonster

Thanks Amy, what you talk about is my worst nightmare scenario.

I love my flat in that it is in a prime location in Glasgow city centre. I also do not want to sell at this moment in time because there is a lot of regeneration in Glasgow for the commonwealth games and also very close to my flat there are plans for a new complex with bars, restaurants and cafes so there is a perceived increase in value over the next 2-3 years.

I am just worried this never gets fixed properly which would be a serious issue for resale I think

Fire_Fox

You need to establish if the flat is on a long lease or owned outright/ freehold. In Scotland freehold flats are more common, they are very rare in England and Wales. Leasehold flats are still mortgaged, and only depreciate in value when the term is less than 80 years and not by that much until they are quite a lot less; long leases can be extended to prevent this. The reason for leasehold is so that all repairs and maintenance and insurance are organised communally, you don't have the roof caving in and flooding the whole building because the top flat doesn't repair it.

Stop telephoning, start writing. Sorry if I sounded pedantic about it being your father's flat but this is highly relevant, you cannot act on your father's behalf unless you have some legal standing. If you go the legal route your father will need to present supporting documents like letters between himself and the builder/ freeholder/ factor. They could be very awkward indeed and point out that the owner has never once reported a problem.

You still haven't explained what the warranty is, a warranty from whom - the builder or NHBC? Was it checked over by your conveyancer, is it insurance backed? What does the contract with the factor say about the roof, what has been reported to the factor in writing?