Damp proofing - verbal guarantee not being honoured

michaeljones161

My wife and I own a small terraced house in Eastbourne. About ten years ago, we used a local company to install damp proofing. We were told by the company that the damp proofing would be guaranteed for 30 years. Unfortunately, we did not get the guarantee in writing.
Now, the damp has returned, and we informed the company. They came to look at the problem and apparently the damp course needs to be redone.
They have now decided that there is no guarantee and deny giving a guarantee verbally. They say now that they might not always give a guarantee depending on the circumstances. I don't know what those circumstances could be.
This is not a small cowboy operation but an established company and we are surprised that it has gone back on its word.

Any suggestions?

unholyangel

Unfortunately the only suggestion I can make is to always get guarantees etc in writing. Without a guarantee/proof of a guarantee, you're likely SOL given the statute of limitations is 6 years.

InsideInsurance

unholyangel wrote: »

Unfortunately the only suggestion I can make is to always get guarantees etc in writing. Without a guarantee/proof of a guarantee, you're likely SOL given the statute of limitations is 6 years.

Its 6 years from the breach so if the OP alleges they have a 30 year guarantee and thats been breached "today" the clock starts now.

The issue is proving it, if it goes to court you and the company will have to present your evidence and the judge will decide what is the most likely thing to have happened. With you having nothing in writing to substantiate it or adverts from the time showing they stated it'd come with the warranty or such then you'd be on thin ice if you proceeded with a claim.

Marktheshark

Like anything verbal, including contracts.
Its only worth the paper its written on.

George_Michael

InsideInsurance wrote: »

Its 6 years from the breach so if the OP alleges they have a 30 year guarantee and thats been breached "today" the clock starts now.

I thought that in England it was 6 years from the date of the contract as this would be when the breach happened (not supplying a guarantee as agreed).
Scotland is different where it's 5 years from the date of discovery of the problem but in the UK I think that the OP is out of time.

bod1467

Is the correct answer (per my understanding).

Except that you meant rUK (rest of the UK) not UK ... Scotland is (still, just) in the UK.

InsideInsurance

George_Michael wrote: »

I thought that in England it was 6 years from the date of the contract as this would be when the breach happened (not supplying a guarantee as agreed).

In which case there is no enforceable on any contracts over 6 years old, would cause a major issue for employment, pensions, life insurance and a whole host of things where durations of contracts are routinely over 6 years

Looking at http://www.out-law.com/en/topics/projects--construction/construction-claims/limitation-periods-under-english-law/ it states:

Unless otherwise stipulated, these time periods begin either on the date on which the breach of contract occurred, or the date the negligent act or omission occurred. This is known as the date of accrual. The limitation period does not run from the date of the contract itself.

Now the question is when did the breach actually occur? At the date they said they were selling them a warranty but didnt or the date when they failed to honor the warranty. You'd need to speak to someone with better legal knowledge than I to answer that one with certainty.

bod1467

I guess we're conditioned here to SOGA cases, where date of purchase (or delivery) equals date of contract/breach/accrual, so the 6 years starts then.

George_Michael

InsideInsurance wrote: »

In which case there is no enforceable on any contracts over 6 years old, would cause a major issue for employment, pensions, life insurance and a whole host of things where durations of contracts are routinely over 6 years.

The 6 year time limit I referred to wouldn't have any effect on such things as employment, pensions work contracts etc as under the Limitations act there are different timescales for these sorts of cases.
The 6 year limit is for "simple contracts"

5
An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.

http://www.legislation.gov.uk/ukpga/1980/58

InsideInsurance

Speaking to one of the corporate lawyers here, as I was talking to him anyway, he wasnt sure (helpful) but did feel at there was an additional element on misrepresentations.

Looking at the 1980 Act (as amended) you have Section 32 stating:

(1) Subject to [F1subsection (3)][F1subsections (3) and (4A)] below, where in the case of any action for which a period of limitation is prescribed by this Act, either—

(a)the action is based upon the fraud of the defendant; or
(b)any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or
(c)the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

So if the sales person did deliberately or mistakenly say the warranty was included when it wasnt then there is an argument with the above that the clock doesnt start ticking until the discovery of the issue

unholyangel

InsideInsurance wrote: »

In which case there is no enforceable on any contracts over 6 years old, would cause a major issue for employment, pensions, life insurance and a whole host of things where durations of contracts are routinely over 6 years

Looking at http://www.out-law.com/en/topics/projects--construction/construction-claims/limitation-periods-under-english-law/ it states:



Now the question is when did the breach actually occur? At the date they said they were selling them a warranty but didnt or the date when they failed to honor the warranty. You'd need to speak to someone with better legal knowledge than I to answer that one with certainty.

Contract:
within six years of the date of breach;
the cause of action occurs as soon as the contract is breached - by contrast, in tort, no cause of action arises until all elements of duty, breach and damage are present;
unlike tort, the limitation period cannot be extended on latent damage grounds.

I used to think it would be like scotland and from discovery also but then I read a few judgements and apparently, in contracts, there is no knowledge element required. Its when the breach occurs, not when the other party becomes aware of the breach.

And of course, thats ignoring the fact that OP will have a hard enough time proving the contract has been breached. Without a guarantee or proof of guarantee, the OP has no evidence that a breach of contract even occurred.