Seller did not disclose chimney removal, now unsafe

GDB2222

da_rule wrote: »

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.

With due respect, the examples in para 4.1 are just examples. I would not anticipate a judge accepting that this work is not included.

Removal of chimney breasts is pretty major structural work, and a builder ought to know that the remaining brickwork is very heavy and needs proper support.

The seller is either an entirely incompetent builder or he has lied when answering 4.4. This work required approval from Building Control.

Personally, if I were the OP, I would sue. Even if he loses, it's only going to cost him the court fees.

SmashedAvacado

The OP has already acknowledged that he was aware that someone had done the work when he bought - so it comes down to who did the work. That isn't really relevant is it - he bought the property regardless of the representation (if there was a representation) - and its hard to think of a scenario, given that he was aware of the work at the time of purchase, where knowing who had done the work would have made a difference to him.

In essence, the misrep, if there was one, did not induce him into entering into the contract.

G_M

On the face of it you appear to have a case.


* make the claim yourself as legal costs can't be re-claimed even if you win.

* you could probably get half an hour free with a solicitor to review things. I'd not mention that you would not be using them though for the claim (though they might advise this!). Make sure you have allyour paperwork ready and focus that half an hour to get the best advice before time runs out......
* you'll probably need an expert report eg written report from your structural engineer

* nothing is guaranted- you might win you might not
* make sure you understand the history, have all the paperwork needed, and do not rely on 'assumptions'.
* send a Letter before Action.

silvercar

Playing devil's advocate:

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.

You had a report that said there was no signs of distress.
You were told to check if building regs approval was granted and you failed to do so.

Even if the seller had declared it, chances are you would have asked the seller to pay for an indemnity policy over the fact that there were no building regs and then relied on your report that said there were no signs of distress.

That's what I would have done in your circumstances.

silvercar

Could you claim on your house insurance? You have evidence that there was no problem when you moved in and now there is.

SmashedAvacado

lots of half konwledgable people here. but lets break it down

a statement was made
it may or may not have been wrong
but that statement was about who had done works - was it the seller? or someone else?

But you were aware of the works, the works were not hidden from you. The works themselves were not lied about - rather at best just who did them. You had a surveyor look at the works. Your surveyor gave the works a 1.

If the seller had actually done the works, i can't see how you would not have gone ahead. Because you were not relying on who had done the works - that was off the table. And you went ahead.

So in what the seller has told you, you need to show that it made a difference - it at least partially induced you to enter into the contract, and otherwise you wouldn't have done and that is not going to be easy for you. Because you knew the condition, you inspected the condition with a professional. It made no difference who had done the work.

Be careful about wasting your money on court fees. get it fixed instead.

da_rule

GDB2222 wrote: »

With due respect, the examples in para 4.1 are just examples. I would not anticipate a judge accepting that this work is not included.

Removal of chimney breasts is pretty major structural work, and a builder ought to know that the remaining brickwork is very heavy and needs proper support.

The seller is either an entirely incompetent builder or he has lied when answering 4.4. This work required approval from Building Control.

Personally, if I were the OP, I would sue. Even if he loses, it's only going to cost him the court fees.

Would the works have definitely required building control sign off? Simply removing a non-structural fire place in a couple of rooms?

Furthermore, these forms are filled out by lay people, so unless you can also prove that the seller received advice on what to include then it is perfectly reasonable to rely on the examples given, especially if the works were non-structural and did not require any form of consent.

Also your assertion regarding costs is incorrect. Civil Procedure Rule 27.14 makes it clear that the court can also order the losing party to pay the other sides costs in accordance with PD27, which sets out the rates litigants in person can claim. Also, there is no guarantee that the matter will be allocated to the small claims track. Whilst value is a factor in deciding allocation, complexity will also be considered so there is a chance, given that expert witnesses may be required that this will be allocated to the fast track.

GDB2222

da_rule wrote: »

Would the works have definitely required building control sign off? Simply removing a non-structural fire place in a couple of rooms?

Yes. Why not use Google and check that for yourself.

All chimney breasts are 'structural', as they hold up the chimney stack, which weighs tons.

On your other points, this case will not be put in the Fast Track. If it were, that would be even better for the OP, as he could then hire a solicitor and expect to get that cost back. The other costs point you mentioned is tiny.


"Furthermore, these forms are filled out by lay people, so unless you can also prove that the seller received advice on what to include then it is perfectly reasonable to rely on the examples given"

Do you have any cases to support that? Otherwise, on the face of it, it's an odd proposition, given the wording of 4.1. The form also says:
If you do not know the answer to any question, you must say so.
If you are unsure of the meaning of any questions or answers,
please ask your solicitor.

Contrast the wording of 4.1 with 4.4, where the latter does deal with technical matters.

The plain facts are:

1. The builder removed the chimney breasts without BR approval.

2. That's illegal.

3. He did the job incompetently.

4. He failed to mention this in replies to 4.1 or 4.4 of the TA6 form.

MakPak

Many thanks for the replies, that's useful insight.

silvercar wrote: »

Playing devil's advocate:

You had a report that said there was no signs of distress.
You were told to check if building regs approval was granted and you failed to do so.

Even if the seller had declared it, chances are you would have asked the seller to pay for an indemnity policy over the fact that there were no building regs and then relied on your report that said there were no signs of distress.

That's what I would have done in your circumstances.

If the seller had correctly declared the works in question 4.1 and 4.4 (regarding lack of completion certificate) then I would not have proceeded without it having been checked and my solicitor would have picked this up at an early stage for checking. The failure to declare the works meant it was not picked up. I would not have accepted indemnity for a potentially structurally unsafe building work (which is more to stop council enforcement as I understand).

silvercar wrote: »

Could you claim on your house insurance? You have evidence that there was no problem when you moved in and now there is.

I would be happy if this were the case! But I can easily imagine the insurance company saying that the works were not signed off and therefore are not covered.

SmashedAvacado wrote: »

lots of half konwledgable people here. but lets break it down

a statement was made
it may or may not have been wrong
but that statement was about who had done works - was it the seller? or someone else?

But you were aware of the works, the works were not hidden from you. The works themselves were not lied about - rather at best just who did them. You had a surveyor look at the works. Your surveyor gave the works a 1.

If the seller had actually done the works, i can't see how you would not have gone ahead. Because you were not relying on who had done the works - that was off the table. And you went ahead.

So in what the seller has told you, you need to show that it made a difference - it at least partially induced you to enter into the contract, and otherwise you wouldn't have done and that is not going to be easy for you. Because you knew the condition, you inspected the condition with a professional. It made no difference who had done the work.

Be careful about wasting your money on court fees. get it fixed instead.

At no point did the seller or his solicitor mention the removal of the chimney, either verbally or in documentation. The TA6 form specifically asks in question 4.1 what building works were undertaken and the chimney breast removal (a major structural change) were not declared and I relied on this information. If it had been written there then certainly my solicitor would have required completion certificates.

I don't believe the seller can rely on my home buyer's report to pick up works they have neglected to declare (in fact unless my solicitor sent it to them without my knowledge then they've never seen it). When I said previously I assumed something, I'm justifying after the fact since the chimney was not in my mind when we completed (it was a very stressful time). I received the completion certificate for the declared extension works (1 week before completion to my solicitor) and documentation for all "red" rated items in the home buyer's report and therefore proceeded since I believed all issues were dealt with (in hindsight I could have been more careful or have got a full structural survey).

With regards to the statement that no lie was made, only who did the work, I don't believe this is accurate. The seller said no other building work was done requiring regs and I relied on that when making my judgement to proceed. If they stated that the chimney had been removed but neglected to mention who did it then that would be a different matter but it seems a genuine "lie" to me.

I hope this doesnt come across the wrong way, I genuinely appreciate your comments!

pinkshoes

Was the seller even aware that part of the chimney had been removed without sufficient support?

E.g. the builder suggested it during the extension and they agreed, but were not aware they had to declare this as separate building work. So when they said they had an extension done, this included alterations to the chimney?

I think if you sued the seller, their defence will be that they completed the form to the best of their knowledge.