EXPERTS EXPLAIN:Ask our experts for advice on all your property problems
My builder has gone bust and his partner has offered to finish the job
Q WE GOT a builder to construct a home for us two years ago and it’s nearly finished. But the builder has gone out of business and one of his partners has offered to finish the final snag, on the understanding that we will pay him the final retainer amount. It would probably be cheaper to pay someone else to do the snag and not pay the final amount. What should we do?
A IT CERTAINLY sounds frustrating and long-drawn-out and the only consolation I can offer is that you are not alone. Unfortunately, because of extreme competition and below-cost pricing by builders over the past few years, the number of insolvent builders has increased dramatically resulting in numerous unfinished and derelict homes around the country.
While your project has taken an inordinate amount of time so far, it is critical that you now properly assess all your options and take professional advice. I recommend that you record and value all the building works completed by your builder.
Also, it is important to note any problems or defects in the unfinished house. Standard building contracts will also require you to formally terminate the builder’s employment and to follow that up with details of the works completed and your valuation of these. The next stage is to organise the completion of your house and it is crucial that all of the work is scheduled out to ensure everything is covered.
While your former builder’s partner may be interested in finishing off your house, I recommend that you obtain competing quotes or indeed that you negotiate the completion of your house with a reliable, trustworthy builder of which there are still many available. Also, it is preferable to negotiate completion of your electrics and plumbing/heating with the previous subcontractors to ensure that guarantees remain in place.
Once it is completed, handed over and all defects are made good, you must calculate the overall cost of finishing your house. If the overall cost is greater than the amount quoted by your original builder then no monies will be due to the first builder.
Conversely, if the overall cost of finishing your house is less than the original builder’s price then monies would be due to the original builder. At this point the process can become complicated and contractual.
My recommendation is that you contact your local chartered quantity surveyor who will guide you through the procedures seamlessly.
** Andrew Nugent is a chartered quantity surveyor and is chairman of the Quantity Surveying Professional Group of the Society of Chartered Surveyors Ireland, scsi.ie
I want to demolish my garage
Q DO I NEED planning permission to demolish a garage that’s separate from my detached house, so I can make a new driveway to the house?
A UNDER CLASS 50 of the Planning and Development Regulations 2008, the demolition of a building within the curtilage of a house is considered to be exempted development as long as the area of such a structure does not exceed 40sq m.
In this regard, if the area of the garage is less than 40sq m then it is likely that it can be demolished without the need for planning permission. There are restrictions on all exemptions and these would need to be carefully checked in each particular case.
The council can be asked to make declaration on the question through what is known as a Section 5 application.
Under Class 6 of the Planning and Development Regulations 2001, the construction of any path or any landscaping works within the curtilage of a house, including the provision to the front or side of the house of a hard surface for parking not more than two vehicles (used for a purpose incidental to the enjoyment of the house) is exempted development.
However, there is no provision in the regulations regarding the creation of a new entrance. Presumably the new driveway will have a new access to a public street. If this is the case then planning permission is required.
In conclusion, the demolition of the garage is likely to be considered exempted development but permission should be sought for the new driveway if it is from a public road.
** John Spain is a chartered surveyor and member of the Planning and Development Professional Group of the Society of Chartered Surveyors Ireland, scsi.ie
Architect may not be the right person to sue
Q CAN I SUE an architect three years after refurbishment of my house? He was the project manager and since he signed off on the job. I’ve had to spend €8,000 putting things right: sealing the bathroom after it leaked into the kitchen, replacing a leaking radiator and so on. The central heating keeps breaking down and now I face a bill of €1,900 for a new boiler. It’s the last straw.
A THE SHORT ANSWER to your question is “yes” you may be able to sue the architect. The time limit within which you can sue for damages arising out of professional negligence is six years from the date of the cause of action. The time limit for claiming damages for breach of contract is also six years. But before you decide to take your architect to Court, consider:
Is your architect the correct person to sue? It is very important to make sure that you have identified the correct person or company. Presumably the architect managed the refurbishment project while the refurbishment works were carried out by another person or company. Ought this person or company be included in proceedings?
Did you engage the architect under a written contract? If so, then you should ask your legal adviser to review it to check the terms and conditions agreed between you and the architect, particularly the extent of his responsibilities. For example, was the architect engaged to supervise the works, or to inspect the works from time to time until they were completed?
Did you engage any other people involved in the refurbishment, or did the architect engage them? The issue here is whether or not you can show that there is a direct link between the architect’s failure as project manager and the problems that have arisen.
Have you fully identified the extent of the problem? Before taking a claim against possibly multiple parties, you should engage the services of a reputable surveyor to survey your house to make sure that you are aware of the full extent of the problem and to make sure that the issues which have arisen during the last three years are not indicative of worse problems that have not yet emerged. It is also important to retain copies of any correspondence which you may have had with the original architect, particularly if it shows that you gave the original architect the opportunity to inspect the damage and the opportunity to make proposals about how to rectify the problem before you proceeded to fix matters yourself.
Does the architect have professional indemnity insurance in place? Before engaging the services of any professional, whether an architect, surveyor or otherwise, it is important to check that he or she can provide evidence to you that they have appropriate, up-to-date professional indemnity insurance in place. There is no point embarking on court proceedings and successfully obtaining a court award of damages only to discover that the person you sued is unable to compensate you.
** Colin Hayes is a solicitor in the litigation department of WhitneyMoore
Finding true selling prices
Q I WANT to buy a property in Dublin, but I would like to know what houses and apartments are selling for in the neighbourhoods I’m interested in. How can I find out, when agents say they’re not allowed to tell exact prices because of privacy laws?
A THE LACK of transparency in the housing market is a huge issue, brought about by a conflict between consumer protection and data protection legislation, meaning that estate agents (or any other body) are not allowed to publish the actual sale price of a private property, without the prior written consent of both parties to the transaction, which is difficult to obtain.
Properties sold by public auction are not covered by this, and the results are publicly available. But most houses are sold by private treaty.
The Society of Chartered Surveyors Ireland has always been in favour of a national property price register to provide details of the sale price of every property in the country. There is no reason why such a property register cannot be implemented, and the Property Services (Regulation) Bill 2009, due to be tasked with implementing the register, has now passed committee stage in the Dáil.
In the absence of such a register, you must rely on information gleaned from the various websites (which refer only to asking prices and there can be a considerable variance between asking and selling prices depending on location). Your best option is to approach agents selling in your preferred location. Let them know your budget, and ask what you can get at that price. One school of thought says you should not disclose your maximum budget to the agent but the reality is that the more upfront you are with the agent, the better service you will receive.
** Ed Carey is a chartered surveyor and chairman of the Residential Property Professional Group of the Society of Chartered Surveyors Ireland, scsi.ie
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This column is a readers’ service. Advice given is general and individual advice should always be sought
