Tuesday, 18 August 2015

Construction, Design and Management Regulations 2015 - Practical Implications for Conveyancers

Conveyancers should be alert to the Construction, Design and Management Regulations 2015 (became law on 6th April of 2015) when considering recent alterations to both freehold and leasehold property.

If your client owns, uses or manages a building and undertake maintenance or minor building work associated with the business premises, your client has a legal obligation to ensure that all work is carried out safely without damaging anyone’s health. The law covers the all aspects of the building project from start to finish such as how it is planned, organised, managed, project time-scales and phases, the contractor, the designer, welfare of the workers and others on site and health and safety record keeping.

It’s a piece of legislation that uses good design and planning to reduce the number of accidents on site. The latest update means that, for the first time, regulations will apply to construction work commissioned by home-owners. Of the 43 fatalities on construction sites last year, three-quarters were on smaller sites, so the change is being implemented to recognise that the risk is not only on larger sites.

If regulations are not adhered to, construction work may have to be stopped, financial charges may be incurred if the HSE has to spend time resolving the issue. For serious breaches your client could be prosecuted.

From a conveyancing perspective the sale of property could be affected if there is any renovation or other work carried out by a builder who does not comply with the rules.

Under the new rules all builders, whatever their size, working in the domestic sector will have to create a construction phase safety plan for all building projects and all domestic projects will have to meet the same basic standards for the provision of welfare facilities as commercial projects.
For the domestic residential market this means that any construction projects finishing after the 6th April need to have a ‘handover pack’ including ‘built drawings or specifications of components that have been installed.

The responsibility of the home-owner to be clear on who is responsible for site health and safety, and chase the relevant documents at the end of the project.

Clients should be aware that their exposure to claims in negligence has potentially been raised as a result of these Regulations.  In many cases breach of statutory duty is no longer a cause of action itself (Enterprise and Regulatory Reform Act s69), however statutory duties may still influence the existence of a duty (or the reasonableness of behaviour) in negligence claims. The imposition of a number of positive duties via these Regulations may result in a higher expectation of ‘reasonableness’ in the common law context and may therefore lead to personal injury claims against domestic clients that would not have arisen in the past

Practical Implications

If acting for a seller then you should be alert to building works which have commenced but are in still in progress or which have finished after 6th April 2015 and to ask you client to provide evidence of compliance with these regulations.   You should be ready to receive and respond to a request for a health and safety pack.

If acting for a purchaser then an enquiry along these lines about any recent works should be raised especially if purchasing a new build property.  Equally those who manage a leasehold property should also be asked for these details if recent works have been carried out to a block of flats, for example.  Perhaps the LE1 form should be amended to include such question.

In the case of a multi-let building where the landlord retains repairing obligations in respect of parts of the building it may be appropriate to check that the landlord has been given the health and safety file on completion of the tenant’s project.   Landlord’s when giving consent for works under a lease should make a condition of a license to require the tenant to produce the health and safety pack.

Sorry but yet another regulatory obligation to add to an ever growing list for the underpaid and over worked conveyancer!

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk

Friday, 14 August 2015

Additional Enquiries - A Room 101 Opportunity

Do conveyancers  agree that the type of reply shown below should be sent in a concerted effort to bring an early end the growing practice adopted by many conveyancers out there who take great delight in raising copious and unnecessary additional enquiries?:

'Dear Sirs 

Thank you for your long list of additional enquiries. 

We do understand the principle of caveat emptor and the need for due diligence. However the Protocol as you know has made it very clear that solicitors should resist the urge of raising unnecessary enquires.  

Paragraph 32 of the Law Society Conveyancing Protocol states as you know that the buyer's solicitor should: 

'Resist raising any additional enquiries, including those about the state and condition of the building, that have answers which are capable of being ascertained by the buyer's own enquiries, survey or personal inspection. Such enquiries should not usually be raised. Indiscriminate use of 'standard' additional enquiries may constitute a breach of this Protocol. If such enquiries are submitted, the seller's solicitor is under no obligation to deal with them. Nor does the seller's solicitor need to obtain the seller's answers to any enquiries seeking opinion rather than fact'

Noting than many of the enquiries you have raised fall within the category mentioned above could we please ask you to review the enquiries raised and send back to us only those which could be objectively considered as necessary. 

Please keep in mind that we are keen to assist and do not wish to do anything which could delay the progression of the transaction. Indeed it because of this that our request for a smaller but more relevant list of additional enquiries is produced. 

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk