Protecting the House Buyer Legal Aspects Introduction It is a - - PDF document

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Protecting the House Buyer – Legal Aspects

Introduction It is a privilege to have been invited to speak at the 10th Annual Conference of IOWA. The topics I have been asked to address include:

• Expressing an expert opinion
• Protecting the house buyer
• The liability of the expert

Expressing an Expert Opinion

What is an expert? On the 18th January 2017 the Law Reform Commission published its report on the Consolidation and Reform of Aspects of the Law of Evidence (LRC 117-2016).1 The report made several recommendations including the recommendation that the recommendations in the report be incorporated into an Evidence Bill which should also include a consolidation

• f existing Evidence Acts. A draft Evidence Bill was appended to the report.

The Draft Evidence (Consolidation and Reform) Bill defined the “expert” as “a person who appears to the court to possess the appropriate qualifications, skills or experience about the matter to which the person’s evidence relates (whether the evidence is of fact or of

• pinion), and who may be called upon by the court to give independent and unbiased

testimony on a matter outside the knowledge and experience of the court, and the terms “expert evidence” and “expertise” shall be interpreted accordingly”. Without prejudice to the above, “a person may be regarded by a court as being qualified to give evidence as an expert in civil or criminal proceedings by virtue of his or her knowledge

• r experience in the matter to which the person’s evidence relates”.

“When assessing whether a witness is to be considered an expert, a court shall take account

• f the length of time the person has spent studying or practising in the particular area and,

in the case of a retired person or any person no longer studying or practising in that area, the length of time he or she has spent away from the particular area”.

1 http://www.lawreform.ie/_fileupload/Evidence%20Report%20Completed%20Revised%2018%20Jan.pdf

2 I bring your attention back to the title of this presentation and the fact that the sub-title is “legal aspects”. I have not been introduced as a barrister or a solicitor because I am not

• ne. I have however spent a considerable amount of time giving expert evidence in court

cases and arbitrations within areas of my expertise as an engineer. I have learned a lot from experience and therefore consider myself entitled to make this presentation as an expert. I will leave you to be the judge. Decide whether you want to accept what I have to say and why. In civil and criminal proceedings, an expert witness has “an overriding duty to the court to provide truthful, independent and impartial evidence, irrespective of any duty owed to the instructing party”. There is a duty to state the facts and assumptions (and, where relevant, any underlying scientific methodology) on which his or her evidence is based and to fully inform himself or herself of any and all surrounding facts, including those which could detract from his or her evidence and, where relevant, his or her expressed opinion. There is a duty on the expert to confine his or her evidence (whether of fact or opinion) to matter that is within the scope of his or her expertise, to state clearly when a matter falls

• utside the scope of his or her expertise and to distinguish clearly between matters of fact

and matters of opinion when giving his or her expert evidence, whether given orally or in the form of a written report. There is a duty to his or her instructing party to act with due care, skill and diligence, including a duty to take reasonable care in the drafting any written report. A court may determine that the evidence of any witness who fails to comply with any of the duties of an expert witness is inadmissible. The Draft Bill goes on to address the civil liability of the expert witness as follows: “To the extent (if any) that the common law immunity of an expert witness from civil liability in respect of the testimony he or she gives in court has survived, it is hereby abolished” and “an expert witness shall not be personally liable for breach of any duty in contract or breach in any duty in tort, except where it is established that the expert acted with gross negligence in giving his or her evidence in court in civil or criminal proceedings or in preparing a report, including a report prepared in contemplation of civil or criminal proceedings”. The Draft Bill goes on to say that “a solicitor who instructs any person to appear as an expert witness in civil or criminal proceedings shall be under a duty to inform both that person and the solicitor’s client of the consequences, including the possible consequences in civil liability, of the failure of the person to obtain indemnity insurance”. In summary each of us attending today’s conference has expertise, whether that expertise has been acquired by training or experience. We need to apply that expertise carefully.

3 Expert Opinions In providing an expert opinion “what really matters in most cases are the reasons given for the opinion. As a practical matter a well-constructed expert’s report containing opinion evidence sets out the opinion and the reasons for it. If the reasons stand up the opinion does, if not, not”.2 The skills of the expert witness in court can and should be applied in our normal day’s work in providing expert advice to our clients. When you provide an opinion to a client and give expert advice, have good, well thought out and well researched reasons for the opinion that informs the basis for the advice you give. Use good references whether they be recognised Standards, Technical Guidance Documents, Codes of Practice, etc. A slideshow for a presentation entitled “The Engineer as an Expert Witness” gives further detail in the link below for viewing. This is based on a presentation which was shortlisted by Engineers Ireland for an Excellence Award in the Best Presentation Category in 2016. https://www.dropbox.com/s/no21ktcelpf826d/IOWA%202018%20The%20Engineer%20as% 20an%20expert%20witness.pptx?dl=0

Protecting the House Buyer

The National Planning Framework3 has a National Policy Objective (No. 32) to target the delivery of 550,000 additional households to 2040. There will be an increased need for engineers and related professionals to provide an excellent service to house buyers as they embark on what for many will be the biggest investment of their lives. To create awareness and support the sustainable development of Limerick, Clare and North Tipperary the Thomond Region held a public event during Engineers Week 2018. The aim of the event was to share knowledge. Those that attended included first time buyers and those trading up or trading down. Architects, surveyors and solicitors were also in attendance. The presentation can be replicated in all regions throughout the country. The presentation served to ensure that house buyers would know what to look out for, ask the right questions, take good advice, avoid costly pitfalls and enjoy insofar as possible the process of acquiring their new home. They were invited to take time to visualise and attend an imaginary inspection of their future home. Safety

2 Jacob LJ in Routestone .v. Minories Finance (1997) BCC 180 3 http://npf.ie/wp-content/uploads/Project-Ireland-2040-NPF.pdf

4 A safe place to live is a basic human need. Many questions must be asked. Is glass in windows and doors safe having regard to location? Are there smoke, heat and carbon monoxide detection and alarm systems? Are they in working order? Are there windows in bedrooms that will facilitate escape or rescue in the event of fire? Are balustrades on landings and handrails on the stairs the right height? Can children get caught between spindles or other gaps? Is there adequate headroom over the stairs? Is the gradient of the stairs too steep? Is there dampness in the house? Is there adequate ventilation? Is there mould on walls or ceilings? If there is a septic tank is it securely covered? Are there any rusty covers on manholes or

• ther service chambers? Are there lights in the garden? Are the cables serving these

suitable and safely protected? Are there overhead cables? Are they insulated or uninsulated? Are cables concealed in trees or other plants? Are boundary walls properly constructed and in good structural condition? Are precast caps

• n walls secure? Are steps, ramps and paved areas safe?

Is there a risk of lights, antennae, guttering or other things falling from a height? Did you know that home owners have responsibility for safety when having construction work carried out on their home? The owner of a domestic waste water treatment system shall (inter alia) be responsible for its maintenance and renewal and shall ensure that its parts and components are fit for purpose, operational where appropriate and kept in good order and repair so as to prevent a risk to human health or the environment.4 Has protection from Radon gas been considered? In Ireland up to 250 cases of lung cancer are linked to Radon each year. So many questions and so many more? Be safety aware! The Site

4 S.I. No. 223/2012 - Water Services Acts 2007 and 2012 (Domestic Waste Water Treatment Systems) Regulations 2012.

http://www.irishstatutebook.ie/eli/2012/si/223/made/en/print

5 How often have you heard the saying “LOCATION, LOCATION, LOCATION” verbalised to emphasise the vital importance of location? Is the house in a location where you want to live? What is the occupancy of the neighbourhood? Is it mainly owner occupied or is there a proliferation of rented accommodation? Will there be frequent student parties and resultant noise? What will resale ability of the house be like in the event of a sudden change

• f your life circumstances? A poor house in a good location can often be considerably more

expensive than a good house in an undesirable location. This is just one area where local knowledge can play an important part in informing your decision to buy or not buy. Be prepared to “walk the walk” and visit local shops, pubs and other landmarks to get a feel for the area. This can be especially important if you are from out of town. Check out the schools, churches, shopping centres, sporting and leisure facilities, bus routes and anything else that is important to you. How long will it take you to get to work? Is there a history of flooding in the area – fluvial, pluvial, coastal or reservoir? Is there any evidence of sand bags on or near the site? Are there any streams or rivers close by? What is the gradient in the road fronting the property like? Are there road gullies? In the event of blockages in roadside rainwater gullies is there a risk of water running into the site? If this does happen, is the gradient of the site such that water can escape without harming the house or any outbuildings or services? Is there an oil tank? Is it located near the house or adjacent to a neighbouring boundary or river? Bearing in mind that even small oil leaks can cause serious ground contamination on sites, rivers and streams, in boiler houses or in the houses themselves, great care needs to be taken in their siting and condition. This contamination requires specialist excavation, disposal and decontamination works. This also applies to oil fired boilers and ranges. What is the condition of the drive, paths and patio areas? Is there a good view as you drive into and out of the site? Is there evidence of Japanese Knotweed on or surrounding the site? Services Installations In modern housing developments there are normally separate drainage systems for surface water and foul sewage disposal. They should not be cross connected. Services should go directly to the mains drainage systems without traversing other properties unless there is a formal wayleave agreement in place. In older developments there were sometimes combined systems. If this is the situation with the property you are considering there should be confirmation from the local authority that such is the case. Check and ensure that there is a good clean water supply to the dwelling. Consider having the water tested by a laboratory, especially if the dwelling is served by a

• well. Ultra violet treatment and a water softener may be required.

The Outside of the House

6 Many roofs are finished with concrete roof tiles or artificial or natural slates. Old, artificial slates can contain asbestos and specialist advice may be required. Sometimes there are flat roofs which can be particularly prone to leaks. Insurance companies often ask what the percentage of the floor area is covered by a flat roof. Are there cracks in walls? There are many causes or combination of causes for these. Leaking drains impacting the formation beneath foundations, tree roots, pyrite, poor quality blockwork, badly constructed foundations, foundations constructed on poor quality fill, poor structural design or construction, corrosion of steel window or door heads, rotten timber or excessive heat through chimneys to name but a few. The Roof Space What does your surveyor think of the structure of the roof? Is it constructed with prefabricated timber trusses or is it of “cut roof” construction where roof timbers are individually fitted? Are internal walls supporting the roof? What internal alterations can be made to the layout of the house without negatively impacting the roof structure? Is there roofing felt. Is it in good condition? What is the chimney like? Is there evidence of soot leeching through the chimney brickwork or blockwork? Is there any evidence of moisture ingress down the chimney or through valley rafters? Is there any evidence of woodworm or wet, dozed or rotten timber? Is there attic insulation? Should you be thinking about having timber treated and increasing the amount

• f insulation? What additional ventilation do you need to provide? Is there a water storage

tank and expansion tank? Do they need to be replaced? Are they insulated? Is pipework adequately insulated? Are electrics safe? Do they need to be inspected by an electrician? Is insulation material kept well away from recessed light fittings? Tightly fitted insulation around these that can represent a significant risk of fire. What are outside walls made of, blockwork, mass concrete, timber framed or other proprietary systems? Do they appear in good condition? Is there evidence of insulation in the walls? Is there a proper fire wall between this and any adjoining property? Is there evidence of fire stopping in appropriate locations? The Habitable Areas of the House Are the ceilings cracked? What is causing this? Is load being applied from the roof? Are the ceilings of plasterboard or of an old type lath and plaster where significant sections of damaged plaster can fall without warning? Are walls built of concrete blockwork or stud partitions finished with plasterboard? In three storey houses is the stairwell protected in the event of fire? Are floors flat? Are there gaps under skirting boards suggesting shrinkage in timber or the settlement of ground floor slabs? Do doors open and close with ease? Are door heads level? Are there cracks on the inside of the building similar to those evident on the outside? Are ceilings fire rated where they need to be?

7 Is the chimney properly constructed? It would be advisable to see a fire lighting to ensure that this works well so the buyer is not left with a “smoky chimney” problem. This should

• nly be done with the consent of the owner after the chimney has been cleaned.

Moisture Readings Your engineer or surveyor should have in his or her possession a moisture meter to check for rising dampness or other moisture ingress. The Site Map

An accurate map prepared for transfer purposes should be provided and a Declaration of Identity should be prepared. This confirms that the dwelling and entire premises are entirely within the property on sale and that there is proper access to the property. It also confirms that the dwelling is provided with all services necessary for the proper use and enjoyment of the property. The map should be checked on behalf of the purchaser to ensure it is accurate.

Planning Permission and Building Regulations The planning system was introduced in this country on 1st October 1964. It was not until the 1980s that building regulations were proposed and drafted. They were introduced on 1st June 1992. Prior to that some parts of the country had building bye-laws. A suite of Technical Guidance Documents (TGDs) was prepared. Compliance with the TGDs is considered prima facie evidence of compliance with the building regulations. Major changes in planning and building regulation legislation have taken place in recent years including the introduction of the Building Control (Amendment) Regulations 2014. It is important that the property you are buying complies with requirements applicable at the time of construction including, if applicable, any extension or alteration. Appropriate certification should be provided. Remember, the day you buy is the day you sell, and all certification will have to stand up to scrutiny when you may want to dispose of the property. Next Steps Now that you have viewed the house with the one entrusted to look after your interests, what have you learned? Have you been surprised at some of the things that have been brought to your attention? Do you need further specialist advice from a plumber, electrician, about asbestos, timber treatment or dampness eradication? Do the drains need to be cleaned and inspected by CCTV and hydrostatic test? Wouldn’t a list of useful contacts be helpful? The Slideshow for this presentation can be viewed

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the link below.

https://www.dropbox.com/s/pn5h8rlrpajbktr/Cork%20The%20Engineer%20as%20an%20expert%20 witness.pptx?dl=0

The Presentation can be viewed in its entirety on the YOUTUBE link below.

https://www.youtube.com/watch?v=qBV4EfR-8Hc&feature=youtu.be

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The Liability of the Expert

There is a duty on us to work in a professional and ethical manner. Those of us associated with professional organisations are required to have professional indemnity insurance. Stick to what you are good at. Work within the requirements of your Professional Indemnity insurance policy. Where additional expert advice is required, ensure that your client is aware of the need to take that advice. Those of you who carry out pre-purchase inspections for example, should and must outline to your clients the limits of your expertise. Explain clearly at the outset of any engagement the limits of what you can or can’t do. Ensure that the first page of your report puts this beyond any doubt. Clients will listen to the opinions you express. Make sure that the reasons for your opinions are sound. Your advice will be used to inform a client’s decision to buy or not buy. Take your time carrying out all inspections. Never let it be said you rushed a job. The statute of limitations for negligence is addressed in the case referred to in links below.

Statute of Limitations in property damage claims ... - Engineers Journal

www.engineersjournal.ie/.../statute-limitations-property-damage-claims-implications/

Limitation in Ireland – Supreme Court decision in Brandley v Deane ...

https://www.dwf.law/en/Legal.../2017/.../Supreme-Court-decision-in-Brandley-v-Dean...

Supreme Court Guidance on Statute of Limitations in Property ...

https://www.lexology.com/library/detail.aspx?g=53c927fb-36d6-44cf-9ec5...

Insights - Supreme Court Guidance on Statute of Limitations in ...

https://www.rdj.ie/.../supreme-court-guidance-on-statute-of-limitations-in-property-da...

[PDF]Irish Supreme Court Provides Clarity on the Statute of ... - LK Shields

https://www.lkshields.ie/?...supreme-court...supreme-court...

[PDF]Irish Court of Appeal Overturns Decision Relating to ... - LK Shields

https://www.lkshields.ie/?...court...appeal...to...court...appeal...to...

Construction claims in Ireland: how much time do you have? | Kennedys

www.kennedyslaw.com/casereview/construction-claims-in-ireland/

Negligent Construction Update - Keating Connolly Sellors Solicitors

sellors.ie/negligent-construction-update/

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Thank you

Thank you for listening. I hope this presentation has been helpful. I will be happy to answer your questions. John Garrett John T. Garrett & Associates www.johntgarrett.ie 19th April 2018