What Expertise will the New Homes Ombudsman Require?

The function of a New Homes Ombudsman

The proposed New Homes Ombudsman has been described as a new, independent ombudsman to protect homebuyers faced with shoddy building work in their new homes. The intention appears to be for it to have statutory powers to award compensation, ban rogue developers from building and order developers to fix poor building work.

Defects experienced in new build houses

ArchiFACT, in providing expertise in architecture and construction technology, has been commissioned to provide expert advice and testimony to assist both house builders and homeowners resolve construction defects disputes. This is not limited to run-of-the-mill speculative developments. Much of the work relates to multi-million-pound rural bespoke dwellings, speculative prime site luxury homes, social housing, sheltered housing, urban infill and housing formed by changing the use of vacant commercial and industrial buildings. In general, speculative developments have yielded the most numerous defects. The more expensive the speculatively built houses, the more numerous the defects.

Expectations vary. There is no absolute authority. Defects, which cause inconvenience, may be argued to impair habitability. Reference to building regulations is usually inconclusive. The regulations are written as performance standards. Expert judgement is often required to assess whether a supposed defect causes the built work to fall materially below a performance standard.

The Defective Premises Act

Section 1 of the Defective Premises Act 1972 provides as follows:

“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.”

The construction of section 1 of the Defective Premises Act 1972 and the meaning of fitness for habitation has been reviewed in court. Precedents given indicate that the effect of defects on habitability should be considered on the facts and the combined effect of the defects should be considered. (see for example Mr. Justice Edwards-Stuart’s judgement in the case of Rendlesham Estates Plc & Others -v- Barr Limited)

It is not clear whether the ombudsman is to consider complaints of cosmetic flaws. Such flaws may be symptomatic of underlying structural defects requiring expert assessment to evaluate their potential to cause harm.

While historically the commonest complaints include water damage and cracking, modern standards and regulations give rise to ever higher expectations. Increasingly, complaints are made of: noise, poor access (particularly for disabled people), fire safety, environmental and cosmetic issues, etc. It is not yet clear whether the ombudsman will deal with the full range of typical complaints and if it will apply the standards the developer promised to provide when marketing the new houses.

Most recently ArchiFACT was engaged as architect expert witness by first one and then a further 4 households in a dispute over a row of large detached houses. There were some 25 categories of faults per house. These included: breaches of the building regulations, deviations from the design drawings used to market the houses and sell them off plan, poor standards of workmanship and worrying early signs of deterioration.

The houses were covered by NHBC warranties. When a householder complained to the NHBC, they required the builder to remedy some but not all defects. The developer denied certain of the alleged defects were truly defects, made poor repairs to some defects, damaged previously satisfactory finishes while performing repairs and became increasingly uncooperative.

Litigation was started, the builder appointed a building surveyor and a quantity surveyor as its expert witnesses. ArchiFACT’s architect expert prepared an expert’s report and was then directed to draft joint experts’ statements with the building surveyor. When this was completed, the parties met in mediation and a financial settlement was agreed, there being little confidence in the developer’s ability and willingness to remedy the faults.

In contrast, on other housing developments, the developers engaged ArchiFACT’s architectural expertise to determine the causes and significance of suspected defects. These builders preferred to resolve rather than to hide from emerging problems. In such circumstances calling in the New Homes Ombudsman might prove more a bureaucratic impediment than an asset. Where the New Homes Ombudsman has to address building defects the existence or significance of which the developer is disputing, architectural expertise is likely to be essential.