Seller did not declare subsidence

goggatijie

Hi,

I'm after a some advice regarding undisclosed subsidence and if there is anything we can do legally or not.   Apologies in advance for the lengthy post.

We bought our first home in May this year and have since realised the rear extension (built in 1989) appears to have sunk or is sinking.  

We paid for a Level 2 RICS survey which noted that the extension floor slopes away downwards  about 3 to 4 cm and that subsidence was unlikely to be to be the cause due to there being no visible cracks inside or outside to suggest this. Also the roof tiles and lead cladding appeared to be sound an intact where the extension meets the existing building. They added a disclaimer that without exposing the foundations they could not guarantee no subsidence however and that we would need to purchase a L3 survey in addition to the already paid for L2 survey or (as they advised) get a structural engineer out to take a look before making an offer.  Stupidly we did not purchase an additional L3 survey and instead got 2 independent home builders out to take a look, both who suspected the issue wasn't subsidence but simply poor levelling of the concrete slab of the extension which can be repaired pretty easily.

The property was purchased from a developer who bought it from the previous owners as part exchange and there was no mention of subsidence on the TA6 form.  Because the L2 survey also highlighted a potential issue with the roof (sloping rafters, which independent roofers advised were safe) we tried to use this to get a reduction in purchase price but the seller responded through the solicitors that the property was being sold as seen and that they would not be entertaining questions relating to the property as they had not lived in it.  

I guess in hindsight, at this stage we should have walked away :-(

Fast forward 5 months and there are some cracks appearing under window silld and doors on the extension and I can see the lead flashing where the extension roof attaches to the existing building appears to have pulled away from the wall slightly.  I've taken a measurement using the dampcourse level of the existing house to the end of the extension and it's clear that the end of the extension is about half a brick (+- 3cm) lower.  It starts to slope down from the expansion joint.

Neighbours have told us that the property was empty for almost a year prior to us moving in and that there was "loads" of work done on it by the developer prior to the sale including removal of "tonnes" of soil, although they can't say for certain why this was the case but they assume that the developer had underpinned the foundations.  They also repainted and plastered inside walls and replaced entire section of external face brick along the roof line down to the gutter and placed  a new expansion joint where the extension meets the original building.  Now that we've been told this, we can see the brickwork is new as there is a very slight colour difference in the brick and mortar.  

I emailed the conveyancing solicitor to ask if we could be put in touch with the developer to ask questions, but he responded that he is unable to offer assistance because the property was sold as seen.

Clearly the repairs undertaken by the developer were to hide the subsidence and I wondered what recourse we have (if any).  Even just acknowledgment that the subsidence has been repaired would be a relief at this stage, because right now I don't know if this is the case or not.  

My question is this... Does subsidence have been disclosed on the TA6 form?  Is this a legal requirement?  Or can buyers simply get away with anything by using the term "sold as seen"?

Apologies again for the long post and thank you for taking the time to read.  As a first time home owners, we do  feel a bit cheated.  If the onus was on us to walk away and there really is no legal route we can take, then so be it.  I just thought I'd put it out there for comment.

Many thanks in anticipation of your responses!

user1977

Presumably you have a copy of the form? What was the relevant answer(s)? In these circumstances I’d expect a “not known, buyer should rely on their own survey” or similar.

TripleH

The problem is that the previous owner may not have suffered any subsistence so answered truthfully.

They may not have asked either, so didn't lie via omission.

It might be person A did the part exchange but person B sold on to you. Neither ever met so no omission.

Without knowing the paper trail, it can be hard to answer, the only glimmer of light I can see is that as a builder, they should have 'reasonable knowledge' above and beyond what a lay person might have, incompetencey is an explanation but not an excuse.

km1500

the vendor said that property was sold as seen and they would not be answering any questions as they did not live in it - and you accepted that 

I can't see any basis for your claim

EssexHebridean

I'm not sure that subsidence is asked about on the TA6. There is a question about guarantees, and underpinning comes under that, but if for whatever reason there was no guarantee, even had the property been underpinned I don't think there is anything in the TA6 to indicate it should be disclosed. I suppose theoretically the question about high insurance premiums could be a "yes" if there was historical subsidence as that usually carries increased premiums, but had the seller not lived there, they may also not have insured the property, so might not even know about this. 

Even if it is subsiding now, there doesn't seem to be anything to say categorically that the seller would absolutely have known about this. 

goggatijie

user1977 said:

Presumably you have a copy of the form? What was the relevant answer(s)? In these circumstances I’d expect a “not known, buyer should rely on their own survey” or similar.

They said No to everything as follows:

5.1 Does the property benefit from any of the following guarantees or warranties: (o) Underpinning - No

5.2 Have any claims been made under any of these guarantees or warranties? - No

6.4 Has any buildings insurance taken out by the seller ever been:

      a) subject to an abnormal rise in premiums? - No

      b) subject to high excesses? - No

      c) subject to unusual conditions? - No

      d) refused? If Yes, please give details: - No

goggatijie

In my heart I think I already know that I have no recourse.  I just wondered about the subsidence disclosure element - particularly because the neighbours say that they did dig a lot of soil out during the repair work and that they carried out extensive brick repairs, meaning that they must have known even though they never lived here.  Looking back at it, I I was a fool for agreeing to purchase when they came back with the "sold as seen" comment.

user1977

goggatijie said:

user1977 said:

Presumably you have a copy of the form? What was the relevant answer(s)? In these circumstances I’d expect a “not known, buyer should rely on their own survey” or similar.

They said No to everything as follows:

5.1 Does the property benefit from any of the following guarantees or warranties: (o) Underpinning - No

5.2 Have any claims been made under any of these guarantees or warranties? - No

6.4 Has any buildings insurance taken out by the seller ever been:

      a) subject to an abnormal rise in premiums? - No

      b) subject to high excesses? - No

      c) subject to unusual conditions? - No

      d) refused? If Yes, please give details: - No

So which of these answers do you think were incorrect?

goggatijie

user1977 said:

goggatijie said:

user1977 said:

Presumably you have a copy of the form? What was the relevant answer(s)? In these circumstances I’d expect a “not known, buyer should rely on their own survey” or similar.

They said No to everything as follows:

5.1 Does the property benefit from any of the following guarantees or warranties: (o) Underpinning - No

5.2 Have any claims been made under any of these guarantees or warranties? - No

6.4 Has any buildings insurance taken out by the seller ever been:

      a) subject to an abnormal rise in premiums? - No

      b) subject to high excesses? - No

      c) subject to unusual conditions? - No

      d) refused? If Yes, please give details: - No

So which of these answers do you think were incorrect?

None are incorrect as the form doesn't really lend itself to anything outside of what's been asked.  As a first time buyer I was foolish and should have walked away with the "sold as seen" statement.  I get it.  But as the seller had to have known there was subsidence (why would they have undertaken all of that work to carry out the repairs if not), don't they then have an obligation to state as such?  Where & when is a seller supposed to declare subsidence in the process of a sale?  I've learned my lesson - so go easy on me.  I'm just curious as to the "obligation to declare" which I read is a legal requirement.

user1977

There is no general obligation to spontaneously tell the buyer about negative stuff. The only obligation is not to give false answers to questions actually asked.

goggatijie

user1977 said:

There is no general obligation to spontaneously tell the buyer about negative stuff. The only obligation is not to give false answers to questions actually asked.

Thank you for taking the time to explain