Redress for building defects is not working

Consumer protection for the most significant purchase in an individual or family’s life, that of a home, has never been adequately addressed. The current redress process where any of the parties who were involved in the design or construction of the home, and who are still in existence, must be sued is inefficient, costly and results in unnecessary delays.

Imagine the following scenario: you buy a washing machine and a year later, a problem arises and it stops working. You head to a firm of solicitors to identify everyone involved in the making and installing of the washing machine. You then instigate legal proceedings against all the possible targets and the legal meter starts running. Eighteen months, stress, worry, hand-washing of clothes and tens of thousands of euro later you get the cost of a new washing machine and the lawyers get their tens of thousands. Nonsensical? Of course.

Instead, you’d have checked the warranty, and got a new machine as is the standard and acceptable consumer redress if something goes wrong with a product that’s not your fault.

But this apparent far-fetched scenario is how the current system of redress for buildings faults works. And the chances of a serious defect with your washing machine are far less than a significant defect arising in your house.

Washing machines are made in controlled factory environments with layers of product testing.

A house is a prototype built on a muddy site in the middle of winter by workers with varying degrees of skill and attention. Yet this purchase, which you will be paying off for a generation, is not insured against defects.

Instead you are expected to sue everyone who might be in the frame. You hope that if they are a company that they still exist, and if they are a professional, that they carry their own indemnity insurance. Is this an acceptable form of consumer redress for the biggest purchase of your lifetime?

Latent Defects Insurance (LDI) exists in most countries similar to Ireland. Like most insurances, LDI allows the homeowner to use the terms of the policy to fix any defect problems arising from design or construction and lets the insurer identify the parties who might be to blame to recover any subsequent costs.

It is time that real effort was put into providing Latent Defects Insurance in Ireland and for lending institutions to insist that developers take out the cover before they sell a house or apartment. Because right now, LDI is not a central part of our national building regulations strategy.

Our building regulations exist to control standards in construction and are essential in achieving safer, healthier and more sustainable buildings. Enforcing them can have a real impact on saving lives and preventing serious injury. Every year, 150-200 people die of lung cancer related to radon gas; a properly installed radon barrier would prevent that happening. There were 37 fire fatalities in 2014, 26 of which were in houses – did all of them have adequate fire detection and barrier systems in place?

Nearly a quarter of a million people are supplied by private water schemes; ground water contamination by sceptic tanks and badly installed drainage is the Environmental Protection Agency’s first port of call when tracking down problems. Some 250 older people die from falls in their homes each year and a further 7,000 require hospital treatment with an average stay of 12 days.

These could be prevented by adherence to standards regarding properly installed radon barriers, fire detection, and separation, non-slip tiles, support handrails, etc. A recent report found that there was widespread non-compliance with the sustainability requirements of the building regulations resulting in higher than needed energy bills and damage to the environment.

The Building Control (Amendment) Regulations brought in last year are being reviewed and the RIAI Building Regulations Steering Group is involved in that review. A key objective of the regulations is to enforce accountability within design and construction. If something goes wrong, the regulations seek to have a single professional at the top of the pile – most usually an architect or project engineer – have his/her Professional Indemnity Insurance be the source of funding the necessary remedial works (as well as a multiple of that in legal fees).

This is not an appropriate form of recourse for the consumer – it takes far too long, is too costly and the outcomes cannot be guaranteed. Prevention and detection provide much better consumer protection with everyone playing their part.

A home is the single most expensive investment most of us make and is where we spend most of our lives. A culture of compliance with building regulations has to be fostered by all parties involved, starting with the State. Effective local authority policing is needed and is the norm in the developed world. Under-funded building control departments will struggle to meet the low target set of 12 per cent to 15 per cent inspections annually. These limited resources need to be targeted at the higher risk sectors, starting with speculative residential developments.

Professionals will play their part but cannot be the fall-guys for the other players. Ultimately, the builders must build to the correct standards and Latent Defects Insurance must be available if the consumer is to have adequate protection and redress.

Joe Kennedy is a registered architect and member of the Royal Institute of the Architects of Ireland (RIAI) and sits on the RIAI’s Building Regulations Steering Group