Insurers refusing subsidence claim - please help!

[CaptainMorgansMistress]

If anyone might be able to give any advice, I would be so grateful.

The basic issue is as follows:

• a couple of years after we bought our house, we noticed cracking which has been confirmed as being caused by subsidence as a result of a nearby willow tree.
• the insurers commissioned a loss adjuster to investigate and it turns out that when the builder calculated the required depth of the foundations (taking into account the proximity of the willow), they wrongly calculated them based on the actual height of the tree, rather than the possible eventual full height (which is what your supposed to do apparently).
• building regs signed off and certified the work, including the foundation depth (obviously wrongly?)
• when we purchased the house, all required certificates were there and our solicitor was satisfied all was fine.
• the willow tree has subsequently been cut down by our neighbour.
• the insurers say they won't cover our claim because it is as a result of poor original construction.

So we'll appeal the decision and then I suppose contact the ombudsman. Does anyone think we have a good case? And any advice for how to push through it?
It all feels a bit overwhelming and stressful at the moment

Also, I'm anxious that it will look as though there is an ongoing subsidence issue on our record, making it harder to sell in future, even though the tree that was causing it is now gone. Should I be pushing for something that says it's all been resolved?

I am no expert but bumping for you. And what did your surveyor say?

I think you have a better claim against the builder for negligence. What you have to check is whether the builder owes you (rather than the previous owners) a duty of care. I would also look into your rights against the council

Check if your home insurance has legal cover for claims like this

I'm not an expert either but that doesn't sound right. Surely you claim on your insurance and they claim off builder's insurance?? Isn't that how insurance works?! Fingers crossed the obudsman sees sense. If not and you have legal cover as part of your insurance, you could sue the builders yourself.

special thanks! On our original homebuyers survey, they noted some movement between the old house and the extension (which is where the problem is) but it wasn't a big deal and everyone was happy because all the paperwork indicated the building work was fine.

Gobbolino - I don't think we do have legal cover but will check, thanks. Hadn't thought about a direct claim against the builder.

monsieur - thanks! I don't know if the insurers will back down if we push on with it. It does seem that we bought in good faith and did all the due diligence - short of digging down the side of the house to measure the foundation depth and reading the building guidelines, we'd never have known they weren't quite deep enough! They are fine foundations, just based on a tree 2m shorter than it could have been!

I think liability in this sort of case will be almost impossible to prove.

The builder should excavate the foundations according to the depths set out in NHBC Chapter 4.2, Building Near Trees - however, unless the soil was analysed at the time, the soil type ascertained is subjective. The depths required differ significantly according to whether the ground is high, medium or low shrinkability.

Also, if a structural engineer was involved in the project and designed the foundations, the builder and BCO would have built to these depths as the structural engineer's liability insurance should cover any comeback.

Did the contract incorporate building to NHBC standards? The builder could be liable under breach of contract, but obv that depends on the contract. Is it a new house still under warranty?

Also, don't forget that removing a mature tree can lead to ground heave.

When the tree is growing the ground in the vicinity is dried out. If the tree is removed the moisture in the soil increases and will cause the ground to swell. Damage caused by heave, is usually much more severe than damage caused by subsidence.

I was going to suggest this might be heave. However it has been dry so if the willow has just been cut down I doubt if heave has had time to occur whereas subsidence has. Having cracks where one building moves and another one doesn't is fairly common. It could be the house moving and the extension is ok perhaps?

The most important thing to realise is that you need a structural engineer to progress this. One that really knows their stuff! My DH got an insurance company to pay up on a 2 year old house that had to be demolished due to severe heave. You could stand in the lounge and see up the cracks into the bedrooms. The insurance company paid for the family to rent elsewhere during demolition and rebuilding.

You need an engineer who is used to dealing with insurance companies who fob off customers with rubbish! Get one with balls who will fight for you! Everyone who claims for heave/subsidence has incorrect foundations! If they had correct ones there wouldn't be a problem!!! Houses that are repaired by underpinning are better then ever so do not worry about that. You should be covered for this and it is not your job to get money from builders, the council or anyone else. It is the job of the insurer to meet the claim and recover their losses if they can.

Hope this helps.

This is really helpful, thank you both.

The old part of the house (1850s semi detached cottage) seems absolutely fine, the main cracking runs along the join of the old bit to the new (well 2005) extension.

It wasn't us that built the extension but looking at the paperwork that we received on it, the plans just say foundations built to NHBC guidelines and building reg certificate doesn't mention the foundation depth.

It's been a bit of a saga, the original loss adjuster company mid-measured the foundations and claimed they were concrete raft and shallow rather than the proper trench-fill ones that they actually are. We knew this wasn't correct and we had to get a structural engineers report to prove this before the insurers would proceed with their investigating the claim.

Should I get the structural engineer back onto it now? Or go through the ombudsman first?

And the tree was removed at the end of December 2016. Would we have seen the heave happen now?

My big concern is that even if we were to get the repairs done ourselves, the property might still be labelled as having a subsidence issue with no way of showing that it's actually gone now!

Do you know (a) how tall the tree was when the house was built (b) how tall the tree was when felled (c) how far away the tree was from the foundations (d) your soil type (clay, loam, sandy etc) and (e) how deep the foundations are?

Willows have a high water demand, but heave after they have been felled can be a real problem. Did the builder include any heave precautions on the footings? Hopefully should be shown on original plans?

Just seen that you don't know how deep the footings are - might be worth getting a hand dug trial pit done to determine this.

Sorry I wasn't clear - we do know how deep the footings are (1.2m concrete trench fill) as the loss adjuster has had full investigations done including soil samples, root analysis and 3 trial holes.

I do have the tree height and distance but can't get hold of them at the mo, will post them tomorrow

The original plans that we received in the bundle of paperwork when we purchased are very basic, don't detail foundation depth and mention nothing about heave protection

Yes to getting the Structural Engineer back. Or another one. A terrier one like DH will fight this with the loss adjuster to get the claim settled for you. Loss adjusters are frequently not qualified regarding structures. They just want to stop you getting money!

There is something that has gone wrong. You are insured. There hasn't been much rain since Dec 2016 but unless the soil is tested you will not know if it is saturated or not. Is there any possibility of a water leak? Have the walls been pushed outwards (heave) or is it cracks where a wall is sinking (subsidence)?

We are on clay close to an oak tree and we have 2m foundations for an extension.

Another possible explanation: Is the extension tied into the existing house or not? What is the dynamics between the new and old building? Has the "join" been constructed properly bearing in mind ground conditions and differing foundations for each part of the house?

Did the Structural Engineer offer to fight this for you? Are they up to it? If not, instruct another one. You will have to pay for this extra service but it's worth it. Where are you in the country?

You may be able to bring a claim against the owners of the tree but I would push your insurers.

What does the exclusion actually say?

In my experience as a solicitor, loss adjusters are often qualified engineers - especially with building damage claims. It would be in your best interest to contact all possible parties, the owner of the tree and the builder and advise them to notify their insurers. Any delay in notification may entitle their insurers to decline cover and given the potential cost of dealing with a subsidence case, you need insurers (even third party insurers) in the background.

Loss adjustors work for the Insurance companies, not for the client. Very many are Surveyors, but some are not, that is correct. You need a Structural Engineer who will fight this for you and really knows their stuff and will not be put off by a loss adjustor. There is no logical reason why the claim has not been agreed. Damage is what you are insured for. Normally if there is damage, the insurance pays up and gets their losses covered by other parties if appropriate. It is not up to the policy holder to do all the work for them.

If insurers decline cover it would be very much in the OPs interest to protect her position with third parties until the insurance position is resolved. Given that you don't know the wording of the policy, it is impossible to determine whether cover has been correctly declined. I deal with coverage issues and work with insurers and policyholders daily.

So am I better off contacting a construction solicitor or a structural engineer to help us fight our case?

The person who worked on our case at the loss adjuster was a chartered engineer.

Do you have the tree height and distance from the extension? It would then be easy to check how deep the foundations should be.

If the tree height used in working out the depth of the foundation was only 2m lower than the mature height then it wouldn't have resulted in a massively deeper foundation - you're talking an extra 200mm maybe. But it is then an opinion on whether they would have been OK at the correctly designed depth. I would perhaps try and get an engineer involved to confirm what the loss adjuster's engineer has said, because they are looking for ways to refute the claim.

If they are correct though it then comes down to whether you should be covered for the damage or not, and an engineer won't be able to help with that, but you'd need a solicitor or the ombudsman.

Count, we'd also need to know the particular type of tree, shrinkability of the soil and whereabouts in the country the house is.

Well you know that a willow will be high moisture demand and what the likely mature height will be, and in the absence of soil plasticity index data you could take a worse case and assume high plasticity / high shrinkage potential, as well as look at the medium and low shrinkage potential cases.

PS I am a geotechnical engineer by training, and spent far too many years analysing lab samples and designing foundations.

There are different type of willows with significantly different mature heights; the shrinkability has a significant effect; and the depth in London is 350mm deeper than if it was in Glasgow. We could make conservative assumptions for everything but that is hardly going to help the OP.

PS I've spent today designing foundations for a house extension in clay soil with trees nearby.