Caveat emptor: protecting against latent defects

Ldavies88

I was in a similar situation as your seller. House had subsidence, claimed on insurance, had all the underpinning done with all the appropriate guarantees etc. (the work was over seen and contractors instructed by insurers), and at the end of the day I had a perfectly good solid house worth considerably more than it had been, so that's when I sold it. It delayed my sale for a couple of years but I was the one to benefit at the end of the day.

My insurance company agreed to continue cover for the new owners (this was a condition of sale for the buyers), so we were all happy.

Do you mind me asking how the subsidence was assessed and what the cost of the work involved was?

maisie_cat

What you want is not going to happen, buy a new house if you want post sale guarantees and get used to the quality standards of new builds today.

Ldavies88

You can't force the seller to repair this property before they sell it to you. If you want to buy it you buy it and then do the work. If you don't want to do the work don't buy it.



You seem to think wrongly that you can get your lawyer to force the seller to do work on his property to make it attractive for you to buy. You can't. You can try to negotiate the price down but the seller doesn't have to give you any money off.



This is all down to you and your choice. Nothing to do with the seller at all.


No seller is going to agree to spend money on a house that they have sold and no longer own. If you suggest this they will just say no and you can't force them.


It sounds as if this isn't the house for you and you need to look for something else.

This notion of ‘forcing’ such and such is a strange one. I really don’t know where you are getting that impression from. This is a negotiation not a fight. Both parties are free to put forward suggestions and at the end of it there will be an outcome.

I know that if a seller makes a statement of fact about the condition of the property through their solicitor that turns out to be wrong that the buyer can sue for damages. But I doubt any solicitor will agree to a form of words which isn’t strictly limited in scope. That’s why if it can be agreed in advance that if ‘x’ then ‘y’ both parties will know exactly where they stand.

AdrianC

Ldavies88 wrote: »

This notion of ‘forcing’ such and such is a strange one. I really don’t know where you are getting that impression from. This is a negotiation not a fight. Both parties are free to put forward suggestions and at the end of it there will be an outcome.

Yes, and if you even contemplate putting this suggestion forward, that outcome will be very predictable.

I know that if a seller makes a statement of fact about the condition of the property through their solicitor that turns out to be wrong that the buyer can sue for damages.

There can be no statements of fact here. You know this, because the expert you have employed has told you this. There can only be opinions, which are not legally enforceable.


It is up to you to carry out sufficient pre-purchase due diligence on the condition of the building to satisfy yourself, within your tolerances of risk. If you cannot do that, then the only way forward is to not buy.

Ldavies88

The seller has already stated that he removed a tree that he says was responsible for the undulations in the tarmac covering the driveway and the cracks to the external walls. He states the cracks have not changed since that work was done. That is not an opinion. The only thing that makes any difference is if it comes through his solicitor.

Ultimately this is a negotiation. I would be surprised if warranties and guarantees have never been enforced in the past on older properties subject to agreement between the two parties.

AdrianC

Ldavies88 wrote: »

The seller has already stated that he removed a tree that he says was responsible for the undulations in the tarmac covering the driveway and the cracks to the external walls. He states the cracks have not changed since that work was done. That is not an opinion.

Is it a fact he has removed the tree? Yes.


Is it a fact that it caused the undulations and cracks? No, it's his opinion. He is not a structural engineer. Your own structural engineer says there's no way to be sure.



Is it a fact that the cracks haven't changed? Almost certainly just opinion, unless he is providing what are claimed to be documented measurements carried out over time - and then it'd be up to you to prove they were deliberately and knowingly fabricated, rather than simply incompetently carried out. Your own structural engineer says there's no way to be sure.

Ultimately this is a negotiation.

Yes, it is. And I would be massively surprised if he will agree to your suggestion, and have it documented in the contract to be exchanged. I very much doubt his solicitor will allow that to happen.

I would be surprised if warranties and guarantees have never been enforced in the past on older properties subject to agreement between the two parties.

Unless and until it's documented in the exchanged contract, there is no warranty or guarantee.
Even if there is, then it would ultimately up to a court to test the validity of it and enforce it.


Can I turn this round a bit... Why are you so fixated on buying THIS house, even though you know of likely structural problems that are clearly way outside your acceptable risk?
Let me guess: It's because you think it's cheap for what it is... But you're in denial about the reason for that.

AnotherJoe

Ldavies88 wrote: »

It would not necessarily be open ended. It could be a clause stipulating that if structural movement is determined by an independent structural engineer to be the cause of the damage that he pays up to a certain amount of the remedial work.

The seller does not deem it necessary to dig up the driveway to check the foundations and has given verbal assurances about the causes of the cracks to structure. He is therefore unlikely to agree to a reduction in price on that basis. It makes sense therefore to make sure that his words actually mean something more than an assurance and to agree in advance something which is legally binding.

It makes sense to you. And you only. With anyone else on the receiving end it makes no sense because it would be you and your contractors deciding what the work was what needed doing to investigate and to fix. It could even be that your ground works to excavate to investigate could cause damage which you woudl then claim was there already.
Even if it was bounded, which is normally done by a retention of fees lets say "maximum of £5k" you might decide "OK well the first £5k is free so I'll get cracking (no pun intended) on some works anyway as they are half price" even if they probably arent needed but at half price you might decide its worth it.

My advice is, take your best shot at knocking off whatever you can. If he wont agree to what you want why on earth would he agree to a larger sum when the odds are thats what you'll decide to spend?

You may of course get lucky but i think anyone with a modicum of sense would take a reduction to a level to sell, and then tell you to jog on, and would want a clean break rather than soemone trying to tie them up in legal agreements and potentially legal issues, post sale.

Ldavies88 wrote: »

Ultimately this is a negotiation. I would be surprised if warranties and guarantees have never been enforced in the past on older properties subject to agreement between the two parties.

I would be very surprised there were such guarantees in a sale unless those guarantees are from third parties eg the professional contractors responsible for underpinning, or a new boiler, or a new roof or whatever. Not Mr Smith of 23 Acacia Avenue.

AnotherJoe

Actually to answer your root question

what it would entail to secure a legally binding agreement from the seller to pay for the cost of the remedial work (or a proportion of it) in the event that either underpinning or other major structural repairs are required.

The answer is, it would take an idiotic seller who went against his solicitors advice.

Ldavies88

In many ways it’s not a matter of opinion; it’s a case of what the law permits and how the negotiations pan out within that context. I will be speaking to my solicitor about the possibility of amending the standard conditions of sale to include a reference to the statements the seller has already made and to explore the options for securing a commitment to any post-completion remedial works.

I know that it’s possible to found an action for damages under the law of misrepresentation and/or breach of contract if the seller makes a misleading or inaccurate statement about the condition of the property which the buyer relies upon.

In stating that the cause of the structural damage to the property was rectified with the removal of the tree the seller has provided a representation about the condition of the property which if incorrect would materially affect the value of the property.

AnotherJoe

Ldavies88 wrote: »

In stating that the cause of the structural damage to the property was rectified with the removal of the tree the seller has provided a representation about the condition of the property which if incorrect would materially affect the value of the property.

IANAL but I doubt the seller would be liable for such "misrepresentation" because if you challenged them in court their lawyer would say that you had no reason to beleive they were qualified to have such a statement relied on, it was just a laypersons opinion, especially if verbal, and if in writing their solicitor would either add a rider to that effect or most probabiy not allow them to make such a statement within the contract.

Do please report back what happens. My prediction is your solicitor will advise against what you want and if you insist then the buyers solicitor will strike it out / the buyer won't accept it.