Please help - our first home has subsidence and insurer refusing to cover claim

[sugarandspite]

Hi folks,

I'd be really grateful if anyone could advise me of the next steps. We are totally overwhelmed and not sure where to start.

Early this year we noticed that significant cracks had developed between the original part of our property (semi detached cottage 1850s) and the 10year old 2 floored side extension. We contacted our insurers who sent out a claim service to investigate - they say it is moderate subsidence caused by a large willow tree on a neighbouring property.

But they say that the foundations for the extension were built too shallow so they won't cover the costs of dealing with the subsidence but that we may have a claim agains the original builder.

I've been through all the paperwork we got from the sale (3yrs ago) and no builder is named. Building regs give approval to the plans but the section for foundations says 'new foundations to be to the satisfaction of local authority. Depths to be determined by ground conditions on site'.

I have no idea what to do next and just totally overwhelmed by it. Please someone give us some advice!!

[Northernlurker]

What sort of survey did you get on the property when you bought it?

[sugarandspite]

We got the home buyers survey through the bank mortgage provider. It was the standard one (so didn't expose any foundations) but says that it assumes all foundations have been carried out to current standards and passed by building regs.

It also noted that there was some movement between the original house and the extension - but it all got noticeably worse with last summer which was so dry.

[joanofarchitrave]

It sounds as if you need advice - I certainly would in those circumstances .

Do you have a credit card, or a bank account you pay fees for? It's possible that you have legal advice services as a 'freebie' with one of those?

[sugarandspite]

Joan - that's an idea, I hadn't thought of that and we do have an advantage gold account. Will check it out.

I think we may have legal cover on the house insurance but not sure I want to go through them in case there's a bit of a conflict of interest, eg whether we should push harder with the insurers.

[sugarandspite]

Joan - that's an idea, I hadn't thought of that and we do have an advantage gold account. Will check it out.

I think we may have legal cover on the house insurance but not sure I want to go through them in case there's a bit of a conflict of interest, eg whether we should push harder with the insurers.

[sugarandspite]

Sorry double post!

[Northernlurker]

I think you're going to have to push harder with the insurers. Is it reasonable for them to do this - did they ask about foundations when you took out the insurance? Did they cover the vendors too?

[sugarandspite]

Don't think they covered the vendors - no record of it and I don't remember there being any specific questions about foundations when we applied for the insurance.

Do you think if I can demonstrate that the foundations met building regs then I have a case to argue with the insurers? I suppose the difficulty is they could meet building regs but not take into account the massive willow tree at the end of next doors garden.

[startlife]

The foundations depth should have been checked by the building inspector so hopefully there will be a record of this.

Did the insurance company send out a surveyor and do you a report from this? Did he determine foundation depth by digging (or was it an assumption?).
I just wonder if it's worth you getting a 2nd opinion through a specialist surveyor.

[tricot39]

Nhbc guidelines give depths of footings for houses on shrinkage soil near trees. If you have to you can maybe show by records and/or digging a trial pit that the foundations were built to those standards and they should cover the claim.

But i agree it seems a shabby trick for them to say that you should pursue the builder. You have no contract with them so i don't fancy your chances . No - the insurers didn't raise this as an exclusion when you bought this cover theand presumably you can produce a building regs certificate? So threaten them with the ombudsman and hopefully they will come good. ...

However, just in case, tell me how far the willow tree is to the nearest wall of the extension. Also what sort of soil the house is built on.

If you phone building control they might be able to tell you about the soil type and they may have file notes in their records saying how deep the foundations were agreed to be during their site visits.

However it might be best not to find this out initially in case the result doesn't go your way and you would have to declare it!

Good luck.

[sugarandspite]

Oh you guys are amazing - I knew mumsnet would come through! Already feeling a little less panicy.

The insurers sent out a professional claims service who paid 3 visits:

1. To measure the cracks and determine it probably was subsidence.
   
2. Dug bore holes to check out soil type and vegetation roots (and apparently check out foundation depth too).
   
3. Put little plastic dots for monitoring on the rear wall of house.
   

The claims service then sent us a report which said the following (will summarise!):

• substantial vegetation (willow tree) approx 6m away
  
• extension foundations are constructed at 'very shallow depths of 300-350mm bearing onto clay subsoil which is suceptible to changes in volume'
  
• results confirm clay subsoil shrinkage from 3rd party vegetation roots
  
• 'we would expect the foundations to be seated significantly deeper to avoid such an event occurring'
  
• 'we can see you are insured for events of subsidence, but this specifically excludes damage arising as a result of inadequate design and/or workmanship'

[sugarandspite]

Tricot - in the pack of paperwork we got from the sale, there is a building regs approval cert that looks like it was prior to the work but not the cert of completion. If I get in touch with building control might they still have a copy do you think (extension built 2003). Would this help?

[Northernlurker]

So was the work not signed off by the council when finished? Your solicitor should have spotted that I would have thought.

[sugarandspite]

Well looking through the paperwork there is no evidence that it was. We did go through a v reputable firm of solicitors who were recommend by lots of people but they didn't flag it up. And we didn't think to ask about it.

[sugarandspite]

I only have a copy of the 'full plans conditional approval notice' but as I say, it doesn't detail foundation depths, just says they will be to the satisfaction of the local authority, depths to be determined by ground conditions on site.

[Northernlurker]

I think you need to talk to building regs and find out what should be there or what is meant by what is there - iyswim. Then you'll be armed to go back to the insurers or if your solicitors missed it and so have allowed you to buy a pig in a poke then you should take advice about that.

[sugarandspite]

Good plan, thanks.

Will give them a call tomorrow and see if they have any records of the build.

[sugarandspite]

But will just ask for completion cert at this stage, not about any notes on foundation depths - thanks tricot!

[golemmings]

It's not quite the same but work to our house in the past resulted in the removal of a wall and the installation of an rsj.

That rsj is now deflecting and we have been advised by a building consultant that we have a case againt either building control if they signed off an inappropriate beam or the solicitors because their searches were incomplete.
We're not pursuing it for various reasons but I'm not how the solicitor should have known work had been done.

In your case, however, I think its really clear that the solicitors hadn't done their job properly in seeking a completion certificate, or at least highlighting the absence of one.

On a related note, I knew someone who was desperate to live on the poshest road in town. One day a house came up that they could afford. The reason it was cheap was subsidence from the surrounding trees. I assume that subsidence was excluded on the insurance or possibly there was subterfuge or lots and lots of luck but by making a bloody nuisance of herself over best part of a decade, the owner managed to get it underpinned and repaired all paid for by the insurers.

I suspect you may need to be prepared to fight hard on this op, but I hope you get it resolved as quickly as possible.

[sugarandspite]

Oh thats interesting golemmings, thanks! It is really helpful to hear that we're not alone.

I hadn't even thought about the solicitors before this thread but they do seem to have missed a significant piece of evidence and will think more about this when I know if building control signed off on the extension.

[sugarandspite]

Update: building control confirmed that there is a cert of completion and they have put it in the post for me.

So as the extension meets building regs, is the next step to argue our case with the insurers or the claims service or do something else?

[tricot39]

Hi.

Thanks for the extra information about the insurer's loss adjustor's report.

It seems that the foundations are indeed rather too shallow if the report is to be believed. For a willow 6m away, NHBC would suggest foundations 2.5-3m deep depending on the particular subsoil!! Obviously 300-350mm is not enough to get below the zone of influence of the roots - which is presumably why your house is now moving. In fact 750-1000mm is normally the minimum required by NHBC/Building Regulations in a shrinkable soil so the builder has fallen some way short of that too.

So firstly, the report maybe warrants some questioning:
"Boring holes" is a particularly rubbish way of establishing the depth of existing foundations. You actually need a proper trial pit - at least 1mx1m in plan, taken down to 200mm below the underside of the existing footing and taken slightly underneath to confirm that it is genuinely the foundation base. My first line of attack would be to go back to the insurers and put this to them. Say that if they are refusing cover they need to prove their claims conclusively by sight - not hints from an unreliable borehole. You also want root samples to be taken and sent to Richardsons (at Reading Uni) for identification to prove which tree is responsible. Sadly this does mean that someone will need to dig a big hole in your garden though.

Secondly to prove subsidence you need to monitor the cracks for at least 12 months so that you can show a cycle of shrinking and swelling through the seasons. Ask that they do this now that they have installed the measuring tags. What type of thing has been installed? You say "dots" - are these little metal studs with dimples in the centre? These are DMec studs and if they are either side of the cracks you can buy a device to read them monthly yourself - if it comes to that! It might be that the movement is not tree related (although it sounds like it might be).

Thirdly in relation to the inferior workmanship - My first thought on this is that it is a failure of design/specification rather than workmanship - ie choosing the wrong depth for the foundation, rather than constructing it badly. So to claim against someone you would need to find out who was responsible for the decision and then find out if they have professional indemnity (PI) insurance. It all sounds like a complete nightmare and I don't rate your chances of success in this regard. I am not 100% sure that you would be able to initiate a claim on them (if you can find them) because they only have a contractual link with the original owner and not you. I think this link can be transfered via a collateral warranty but the chances are that you don't have one. So this is another question for the solicitor probably.

Fourth - If the tree has to stay, is there any chance you can find out from the neighbours when they planted their tree? Because a tree can grow considerably in 10 years and there is a chance that it was not there or too small to see over the fence when the extension was built. This would show that the original builder/designer had acted reasonably (although to be honest this can only be said if the foundations are 750-1000mm deep) and it is actually the neighbours who have created the problem by planting the tree. This is a bit of a get out clause for your insurer as I think it means that they can claim against the neighbour's policy - although I suspect that your neighbours would not end up too happy about this and it would affect their premiums etc.

Fifth - I agree that it is worth looking into the completion certificates and whether the checks were carried out properly - either to show the insurance company that you did proper due diligence or to start an argument with the solicitor for compensation....

All of the above will result in a good deal of angst and trouble, and may not result in the insurance cover being reinstated to the level where you can underpin the house. However an alternative would be to speak to your neighbours. Would they consider cutting the tree down if it can be proved by monitoring and samples that it is their tree causing the problems? I normally hate suggesting this option, but if you have no insurance cover it is probably the quickest (and only surefire) way of making the problem go away. I suppose that this will entirely depend on how well you get on with your neighbours and what if anything you can do for them to encourage them to remove the tree.....

Good luck and let us know how you get on!