Last month David Cameron announced plans to reform or abolish 3,000 regulations currently in force in England and Wales. The includes cutting red tape in housing and there are plans to slim down the Housing and Construction regulations and this, it is claimed, will save business at least £88m per year.

Sixty-four such regulations will be scrapped and 31 will be improved.

The Government claims that, by making life easier for house builders, the reforms will lead to more homes being built. However, critics say they will allow builders to sell lower quality housing with worse energy efficiency.

It remains to be seen who is right. However, faults in new build properties are not uncommon so it’s perhaps understandable that any change to house building regulations could cause concern.

What legal protection do house buyers currently have?

• House builders owe the following duties to their buyers:

• To build in a good and workmanlike manner;

• To use proper materials, and;

• To ensure the property is fit for habitation at the moment of sale.

If those duties are breached, the original buyer can bring a claim in damages against the builder for breach of contract, for up to six years after sale. Subsequent owners are in a more difficult position, as they cannot bring claims for breach of contract.

Recent case law suggests that house builders cannot draft the sale contract to exclude their usual contractual duties. However, they can limit their liability to reflect that offered by the NHBC Buildmark Scheme, where the NHBC Scheme applies.

Under the NHBC Scheme, the builder must remedy any defects arising and notified to him during the first 2 years after completion. Any defects arising during the next eight years are covered by the Scheme, which benefits both the original buyer and also subsequent owners.

Therefore, anyone buying a house built within the last 10 years should check whether there is NHBC or equivalent cover.

WHAT ABOUT FLATS?

In England and Wales flat owners acquire a long lease, with the freehold of the building being owned by someone else.

The lease typically requires the flat owner to contribute to the cost of maintaining and repairing the building through a service charge, usually calculated annually.

Where routine maintenance is concerned, this is rarely a problem. But what if the building requires major repairs that haven’t been budgeted for?

An award-winning canalside development in Manchester urgently needs a new flat roof, despite the building being just over 10 years old. The cost is estimated at over £1m, which has been demanded from the 181 flat owners, an average of over £5,000 each. Although the flats were sold with NHBC cover, the owners are advised the cover may not apply to flat roofs.

Therefore, as well as looking for NHBC or equivalent cover (and checking its exclusions and limitations), anyone buying a recently built flat should check who is liable under the lease for damage caused by a latent defect, i.e. a fault in the construction or design of a building.

Ideally the freeholder (not the leaseholders) would be liable for latent defects. If the development was properly documented, the freeholder should be able to claim against the professionals and contractors who were involved in the design and construction of the building under collateral warranties, which usually allow claims to be brought within 12 years of completion.

A recent case suggests that claims under collateral warranties can be brought using construction adjudication, which is much quicker and potentially cheaper than going to court.

WHAT IF I’M RENTING?

Where a property is let under an Assured Shorthold Tenancy (AST) the landlord is liable to repair the boiler and the exterior and structure of the property including the roof and gutters. If the landlord is in breach of his obligations, the tenant can bring a claim.

Claims can be brought for disrepair but not for inherent defects. So, in a case where damp was caused by condensation arising from poor design (an inherent defect) the tenant’s claim failed.

Furthermore, the landlord’s repairing obligations are limited to the parts of the building in which he has an interest. So, in the case of a flat, where the landlord does not own the building, he cannot be held liable for exterior disrepair such as a leaking roof.

In a recent case however it was held that interior plasterwork can be considered part of the structure of the property. As such, the landlord can be held liable for it being damp, regardless of the ultimate cause.

Claims for property disrepair can be difficult, so it pays to take appropriate legal advice.

Peter Hall, Associate, Manchester Property Litigation, Weightmans