Seller did not disclose chimney removal, now unsafe

MakPak

Hi all, I'm looking for some advice please, hopefully this is the correct place.

We bought a house a couple of years ago which had had a large extension built by the seller (a builder) in 2011. I had a home buyer's report rather than full survey. During conveyancing we got the building control completion certificate for the extension (as well as planning permissions, plans etc.)

Last week, I went into the loft and noticed a 1/2 inch wide crack along a line of bricks about three foot long, underneath the chimney. The rear chimney breast of the property had been removed (but never disclosed to us by the seller) and I now noticed that the support for the remaining chimney stack fitted in the loft looks like a bit of a bodge. There are two steel structural beams underneath the chimney, but they are resting on wood which is placed directly on three loft joists. There are also a few wooden ties holding the beams to the roof timbers too but they show signs of warping.

I called a structural engineer and he said the support fitted is inadequate and while he determined it's not in imminent danger of collapse it is unsafe and needs to be replaced by an RSJ beam between the outer wall and front chimney brickwork. With applications to the council to get the appropriate building control notification and approval it's going to be approx £2300.

I am aware of caveat emptor, but on the Property Information (TA6) Form the seller says the only building work done was the extension. The chimney removal is not part of the extension and the chimney breasts can be seen in the plans for the extension submitted to the council so I am sure they did not sign it off. The building control completion certificate is quite vague and only says that the extension has been inspected and appears to meet the regs as far as can be ascertained (actually the completion certificate is from just before we bought the house). Since the TA6 did not disclose the seller removing the chimney breast, my solicitor did not request the necessary documentation which would have avoided this.

My question is how best to proceed and would I have a decent case for misrepresentation?

Obviously I'm going to have to get the work done asap. I tried contacting my conveyancing solicitor but was told that it would now fall under dispute resolution.

Would going through the small claims court be best (with an initial letter before action) or should I hire a solicitor?

GDB2222

On a purely practical basis, it may be cheaper to remove the chimney.

I think you have a reasonable claim for misrepresentation, but a solicitor will charge as much as your claim. As it will be in the small claims track of the court system, you would not get your legal costs back. It's therefore only worth pursuing as a litigant in person.

da_rule

Problem you may have is the amount of time that has elapsed.

You have 6 years generally to bring a claim for breach of contract. The starts from when you became aware of or reasonably should have become aware of the breach. Therefore they could argue that it is unreasonable that it has taken you so long to find the fault, especially when the onus is on the buyer of a property to carry out proper surveys etc.

Also, how do you know the seller did the work or even knew it had been done? They could argue that it was a previous owner and they were not aware.

MakPak

Thanks for the quick replies.

GDB2222 - I did not mention that it is a semidetached, and so removal of the chimney stack would require approval of next door, which is rented and I get the impression the owner would say no.

da_rule - I think I made the dates a little difficult to keep track of in my post. I bought the house two years ago and last week is the first I was aware of the problem. The previous owner bought the house in 2010 and did the extension in 2011.

The reason I know the owner did the work is that I have the planning permission documents he submitted (from 2011) for the extension and they show the intact chimney breasts so they were supposed to be left according to those plans. Also, rightmove shows the pictures from when the house was last sold and the chimney breasts are there.

GDB2222

da_rule wrote: »

Problem you may have is the amount of time that has elapsed.

You have 6 years generally to bring a claim for breach of contract. The starts from when you became aware of or reasonably should have become aware of the breach. Therefore they could argue that it is unreasonable that it has taken you so long to find the fault, especially when the onus is on the buyer of a property to carry out proper surveys etc.

Also, how do you know the seller did the work or even knew it had been done? They could argue that it was a previous owner and they were not aware.

The op bought the house 2 years ago.

sgun

da_rule wrote: »

Also, how do you know the seller did the work or even knew it had been done? They could argue that it was a previous owner and they were not aware.

This exactly. In my last house I uncovered something every year that had been bodged by the previous owners. I had the house 18 years but if I had sold it on after a few years there would still have been lots of things I hadn't uncovered. I have just sold and the homebuyers survey my buyer had done came back perfectly fine but I bet there are loads of things that I don't know about that the new owner will discover.

da_rule

GDB2222 wrote: »

The op bought the house 2 years ago.

My bad. I misread the second paragraph as they had purchased the property in 2011.

SmashedAvacado

do you think you will be able to unequivocally prove that this element of the works was done during the previous owners ownership ? It might be the case that he says, it was like that and he'd never been in the loft! You had a surveyor go in the loft presumably. How are you going to prove that this is down to his failure to disclose something he knew about....do you "know" he "knew"?

I'd be perhaps asking the surveyor why they didnt pick it up - even a homebuyer report should pick up something like this. They will be easier to go after as they will have PI insurance. What did your survey say about the loft? chimney? etc

MakPak

SmashedAvacado wrote: »

do you think you will be able to unequivocally prove that this element of the works was done during the previous owners ownership ? It might be the case that he says, it was like that and he'd never been in the loft! You had a surveyor go in the loft presumably. How are you going to prove that this is down to his failure to disclose something he knew about....do you "know" he "knew"?

I'd be perhaps asking the surveyor why they didnt pick it up - even a homebuyer report should pick up something like this. They will be easier to go after as they will have PI insurance. What did your survey say about the loft? chimney? etc

Thanks for the comments - I too thought of this possibility. However, I have the dated formal plans for the extension which the seller had done in 2011. The plans show the front and rear chimney breasts, i.e. you can see the relevant upstairs and downstairs rooms and they show a clear indentation where the chimneys are located in each room. I can also see on the RightMove pictures from when he bought the house that the chimney breast was there.

The home buyer's report mentions that the chimney breast was removed, structural support was partially visible but that there was no signs of distress (meaning the crack appeared in the last two years). This was in a section rated "1" (i.e. green) on the report and it's not mentioned under "Issues for your legal advisor". He does say that we should have it checked if no building reg approval was granted for it though.

Given that the property information form (TA6) said no building work other than the extension was carried out, I assumed it was either done a long time ago or else it was part of the extension works and had been checked by building control. If the TA6 form correctly stated this was a recent building work we would have clearly requested the necessary documents.

GDB2222

MakPak wrote: »

Thanks for the comments - I too thought of this possibility. However, I have the dated formal plans for the extension which the seller had done in 2011. The plans show the front and rear chimney breasts, i.e. you can see the relevant upstairs and downstairs rooms and they show a clear indentation where the chimneys are located in each room. I can also see on the RightMove pictures from when he bought the house that the chimney breast was there.

The home buyer's report mentions that the chimney breast was removed, structural support was partially visible but that there was no signs of distress (meaning the crack appeared in the last two years). This was in a section rated "1" (i.e. green) on the report and it's not mentioned under "Issues for your legal advisor". He does say that we should have it checked if no building reg approval was granted for it though.

Given that the property information form (TA6) said no building work other than the extension was carried out, I assumed it was either done a long time ago or else it was part of the extension works and had been checked by building control. If the TA6 form correctly stated this was a recent building work we would have clearly requested the necessary documents.

Bear in mind that the standard of proof for civil proceedings is different from criminal trials. For civil proceedings, you just need to provide evidence that is better than 50:50. What you have outlined here sounds perfectly adequate.

The next stage is to send a letter before action. In that, you outline what you are claiming, and why. You should explain what proof you have that he removed the chimney breasts. He can always write back to you explaining why you're wrong.

da_rule

MakPak wrote: »

I assumed it was either done a long time ago or else it was part of the extension works and had been checked by building control. If the TA6 form correctly stated this was a recent building work we would have clearly requested the necessary documents.

At the point you made the assumption you’ve probably lost the case. You potentially had enough evidence before completing to limit your loss. The works were identified on your survey yet it seems that you did not ask your solicitor to question it (and they didn’t do so off of their own back).

Also, as you’ve said, there are pictures from previous sales and the planning plans available, and these would have been available at the time of purchase.

Which question in the TA6 is it that you want to rely on, is it 4.1?

There are 2 issues you are going to face in my opinion. Firstly, that, given the above it was reasonable for you to rely solely on the representation made in the TA6. Secondly, if it is 4.1 of the TA6 you are looking at then the seller could argue that he did not believe he needed to disclose it as it does not fall within the examples of works given as part of the question. In order to get misrepresentation over the line, you have to prove that they either knew they were making a false statement or were reckless in making the statement.