Sudden secret surprises

Property isn’t like a washing machine – it doesn’t come with a warranty or a money back guarantee if it’s faulty, which means that you have to investigate thoroughly before you buy to ensure that you are getting what you want and that there are no nasty surprises lurking under the floorboards that could cause endless headaches.

The wise buyer/developer will have commissioned a full building survey, but even that cannot fully guarantee that everything will be in appropriate working order once everything is signed and sealed. It is often only once a building is inhabited that its quirks and problems are discovered. A wonky floorboard is one thing – but what if you discover something major – such as a problem with the heating system, which could cost hundreds or even thousands of pounds to put right?

The general rule of property transactions is governed by the principle ‘caveat emptor’, which is Latin for ‘let the buyer beware’, meaning that it is the purchaser of a property that bears the risk of any defects. Therefore, unless the previous owners have intentionally misled you about the condition of the property, or have agreed in the contract to undertake liability for the defects, you will have no claim against them.

Making a claim – who is liable?
If you commissioned a survey, you might consider making a claim against the surveyor. However, most surveyors will qualify their report and their liability by stating, for example, that they have not inspected inaccessible parts of the property or tested all the services or appliances. They will suggest that you obtain additional specialist reports from electrical, plumbing/heating, cavity wall tie, damp-proof and other experts. If you didn’t act on that advice, you will be unable to hold the surveyor responsible for any defects which would have been revealed as a result of following their advice in the first place.

Your rights
If something major, such as a heating system is at fault, you may be able to look to the installer for recompense. However, in the infamous case of Murphy v Brentwood District Council (1990), the Court upheld the traditional principle that there cannot be any claim for economic loss, only damage to the property or injury to a person – which limits the point of making a claim.  In addition, as a general rule, repair costs are not usually recoverable.
The Defective Premises Act 1972 Section 1 (1) states:
“A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty –
a) If the dwelling is provided to the order of any person to that person; and
b) Without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling.

To see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed”.

This means that a builder would not be liable under section 1 (1) if the work was carried out according to specifications or an architect’s instructions. But if the specifications or instructions were defective, he could be under a common law duty to warn the employer of that fact.  However, this duty extends only to defects of a structural kind (only dangerous defects and no defects of quality), which means that the costs for items such as heating systems would not be recoverable.

Ultimately, I would always advise taking up professional advice in the form of a survey, but you do need to be fully aware that it cannot guarantee that everything in your property will be in pristine, fully-working order. Be diligent – and always be prepared for the fact that everything may not always be as it seems on the surface.

Michael is managing director of Michael Gerard & Co www.michael-gerard.co.uk