UK: Customer Satisfaction In The UK Housebuilding Industry

Last Updated: 11 November 2008
Article by Gerard Khoshnaw

A Response To The OFT From Nabarro

Introduction

We refer to the OFT's market study into the Housebuilding Industry in the UK and, in particular, the factors influencing the OFT's decision to carry out the market study, one of which is the view that customer satisfaction has not improved substantially since the Barker Review of Housing Supply in March 2004.

The scope of the study and the "issues which the OFT wish to work with the industry to examine" include the level of consumer protection and redress. This is to consider "consumer legislation and investigate whether new home warranties adequately insure home buyers against poor quality housing".

About Nabarro

We act for numerous UK Housebuilders and we advise them on Customer care and support issues.

Our paper is submitted independently as an "interest party." We are the 23rd largest law firm in the UK with offices in London and Sheffield. We have a great deal of experience in the property sector, (both commercial and residential). In the residential sector, we currently act for numerous Housebuilders (both major plcs and smaller Housebuilders). We advise them on customer related issues and have a team of lawyers who understand the industry and deal with such work on a daily basis. We are, therefore, in a position to be able to provide an independent perspective and comment from outside the industry.

Background

In relation to 'new build' properties the following factors need to be recognised:

  • Only 10% of houses bought in the UK are "new build" with 90% being second hand or previously owned. The protection afforded to customers buying 'new build' properties far exceeds the protection available to consumers who purchase previously owned properties. Their main legal protection is 'caveat emptor' (ie let the buyer beware).
  • Complaints are very few in number when compared with the number of houses built annually in the UK;
  • Most new home buyers are reasonable and sensible and work with Housebuilders to resolve any issues which arise.
  • By far, the vast majority of customer queries and complaints are dealt with directly by Housebuilders and their 'customer care' teams, to the customers' full satisfaction.
  • Of the small number of complaints that grow into disputes, the question to be addressed is why these disputes arise. This submission will seek to address that issue based on our (substantial) experience;
  • A small but growing number of customer complaints are unreasonable, unjustified and vexatious. The motivation and key driver for these customers is to obtain financial compensation grossly exceeding that to which they may be legally entitled. Sometimes compensation is claimed and pursued as a priority over providing access to the property for the Housebuilder to remedy any snag or problem.
  • Frequently, customers fail to utilise the Housebuilders own Complaints Procedures, the NHBC, Zurich or Premier Warranty protection, or the NHBC Resolution Service (all of which are available at no cost to the customer).
  • NHBC 'Buildmark' warranties are recognised worldwide as one of the most extensive warranties provided to customers in any industry sector.

Customer Protection

Customers have the benefit of a raft of measures and procedures (which offer them more protection than any other industry) at the pre-contract, exchange of contract, completion and post completion stages. These include:

  • The opportunity for customers to visit show homes.
  • Building Control Protection during the building phase.
  • Visits to the new property and inspections before exchange of contracts.
  • Final Inspections and 'handover' meetings at the property.
  • 'Snagging' Inspections before completion.
  • Legal advice from their own lawyers throughout the conveyancing transaction.
  • Home Information Packs.
  • Pre-Contract Searches and Enquiries before Contract.
  • A written legal contract for sale (in plain English).
  • Protection provided by legislation including the Property Misdescription Act 1991 and the Unfair Terms in Consumer Contract Regulations 1999 and other consumer legislation.
  • Council of Mortgage Lender Certificates ("CML").
  • Compliance with Planning Permission and Building Regulations.
  • Express and implied terms in the contract for the property to be built to a "good and workmanlike" standard.
  • 10 year NHBC "Buildmark" Warranty or Zurich or Premier Guarantees.
  • NHBC Resolution Service (non-binding upon customer but binding upon Housebuilders).
  • Housebuilder Customer Care Departments.
  • Housebuilder Customer Charters.
  • Availability of information for customers on the internet on rights, obligations and performance.
  • Residents Action Groups.
  • (If Leasehold) Residents Management Company
  • Housebuilder's own Dispute Resolution procedures.
  • Some customers have their own legal expenses insurance.
  • It is relatively easy for customers to pursue claims through the Small Claims Track in their local County Court at little cost.
  • Manufacturers Guarantees and Warranties for white goods, boilers and components.

Snags, Defects And Protection

We are not aware of (or acted for) any UK Housebuilder which does not care for its customers or who is not prepared to resolve issues that arise quickly and proactively.

  • "Snags" almost always occur with "new build" properties. (This is why Housebuilders offer a 2 year guarantee period via the NHBC "Buildmark" warranty or via the Zurich or Premier Guarantees.) "Snags" largely occur because of the materials with which houses are built. There is a high water content in the materials used in Housebuilding and that means that after completion properties have to be given time to "dry out" and settle. All properties when built move to a very small degree. This inevitably creates "snagging" items (some of which are cosmetic and some of which are not). The occurrence of snagging items is to be expected and is normal and unavoidable. Housebuilders (almost without exception) always promise to remedy them free of charge.
  • We often find, however, that customers fail to understand that 'snags' will occur and regard them as 'defects'. A small (but growing) number then claim that the property is defective and believe they are automatically entitled to financial compensation. This is hardly surprising when so many snagging companies exist. These companies offer homeowners a snagging service for a fixed fee. They often 'guarantee' to find a minimum number of 'snags'. They also often disregard the standards to which the majority of properties in the UK are built (i.e. to NHBC standards). Amongst the number of 'snagging' companies that exist are PTG Snagging, Brick-Kickers, Force 10 Surveyors, Survey Homes 2000, TPH Property Services, Inspector Home, NE Surveyors, Snagging.org and New Build Inspections. Some have been known to identify minor cosmetic blemishes and describe them as "defects." This can encourage homeowners to regard the "snags" as "defects" and seek compensation. This creates a wholly unrealistic expectation amongst homeowners that they are entitled to compensation when often they are not.
  • The NHBC booklet and/or DVD entitled "A Guide to your New Home" (handed to all new homeowners when they purchase a property which has the benefit of an NHBC warranty) clearly sets out purchasers' duties in relation to "running-in" and maintaining and decorating their home once they own it and states that the property should be allowed adequate ventilation after completion for it to "dry out" (to avoid cracks occurring in plasterwork etc). Sometimes customers pay no heed to such warnings, and cracks within the plasterwork occur. They then expect the Housebuilder to remedy the cracks free of charge and pay compensation for what they (misguidedly) regard as a defect.
  • Most Housebuilders have a Customer Charter which some customers fail to heed or use. These incorporate a free dispute resolution procedure for the customer and the Housebuilders to follow, to resolve complaints or disputes.
  • We also handle a number of claims from customers demanding work to be carried out by the Housebuilder which is solely their responsibility and which has arisen as a result of the homeowner ignoring his or her duty to carry out maintenance and decoration. Often these claims are made four or five years after the house has been sold and are legally unjustified.
  • There is no doubt that (by far) the majority of customers who buy properties from UK Housebuilders are fair and reasonable and accept that minor problems will occur and simply want "snags" remedying within a reasonable timescale. Those snags are, from our experience, always remedied within a reasonable timescale. There is also, however, a small but growing number of customers who believe that Housebuilders are a "soft touch" and this results in them sometimes exaggerating minor cosmetic snags and claiming that they are defects which not only require remedy but also entitle them to financial compensation. Legally, this is incorrect and misguided.
  • Most Housebuilders state in their contracts for sale that they will build the house in a 'good and workmanlike' manner and comply with planning permission, building regulations and NHBC standards.
  • Most Housebuilders also give customers an extensive NHBC "Buildmark" warranty providing a ten year guarantee or similar warranty from Zurich or Premier. Consequently, customers are given extensive protection (often way beyond that afforded in other industry sectors) from defects. If defects do occur, Housebuilders (in the first two years) or the NHBC (in years three to ten after completion) offer a remedial solution at no cost to the homeowner.
  • Before completion of the purchase, all customers have the benefit of advice and protection from their own lawyers (unlike other supplier-customer situations). In other words, both customers and suppliers operate from a level playing field even before the contract is entered into.
  • Most consumer contracts (in other sectors) have extensive exclusion and limitation clauses but contracts for the sale of properties do not. This demonstrates that Housebuilders do not seek to take advantage of their customers.
  • There are a small but growing number of customers who threaten to report minor issues to the press and media or threaten to stand outside sales offices handing out leaflets to prospective new customers in the hope of blackmailing Housebuilders into paying them large sums of compensation to "keep them quiet." Housebuilders faced with such blackmail often find themselves in a difficult position. They do not want to receive negative publicity as they often still have properties for sale on the same or a nearby site and also wish to avoid any negative publicity that may affect the image of the company. Quite often, wholly unjustified claims have to be "settled" for this reason. This can then generate 'copycat' claims from neighbours, which results in perpetuating the views of some customers that financial compensation can easily be prised from Housebuilders.
  • The majority of Housebuilders for whom we act have their own dispute resolution procedures and policies. These provide various stages through which the complaint can be handled and often bring about a satisfactory settlement.
  • We have handled a growing number of vexatious claims over the last six years, and a sample of those claims are referred to in section 6 below. They are examples which are reflective of a developing and fast growing "compensation culture" in the UK which is well recognised in the US. There is no doubt that that culture is now being replicated in the UK. Indeed, the Government recognised the existence of a compensation culture in the UK in the Compensation Act 2006, which was given royal assent on 25 July 2006.

Genuine Claims

  • Occasionally genuine complaints occur and the vast majority are settled or resolved. When they do occur the Housebuilder offers to visit the property to inspect it, identify the cause and devise a remedial solution. It is extremely rare for any Housebuilder to try to avoid its duties and responsibilities under the contract for sale. Usually remedial works will be carried out as soon as practicable and with as little disturbance or inconvenience being caused as possible. Occasionally, if defects occur which need to be rectified relocation to a 4 or 5 star hotel or nearby new home is provided by the Housebuilder free of charge if the works cannot be carried out with the customer still in occupation.
  • Customers also have the benefit of the NHBC "Buildmark" warranty or Zurich or Premier Warranty which guarantees that genuine defects will be remediated at no cost to the customer.
  • In addition, the NHBC Resolution Service is available. It is a free service which involves an inspection of the property by an experienced NHBC Inspector who provides a written report on his or her findings which are binding upon the Housebuilder but not the consumer.
  • Most Housebuilders also employ their own 'customer care' teams to deal with issues which arise. Most also have their own 'customer care' charters and procedures which aim to resolve reasonable complaints.
  • From our experience, when a genuine complaint or claim arises Housebuilders will "bend over backwards" to try to resolve it as soon as possible to keep their customers happy.

Examples Of Vexatious Claims

Occasionally, unjustified claims are pursued by customer through the Courts.

In Appendix 1 (attached) we have set out details of some of the unreasonable and vexatious claims brought by customers over the last 3 to 4 years. On each occasion the Housebuilder carried out inspections, held meetings with the customers and tried to resolve matters amicably and we only became involved as a last resort when litigation was threatened or pursued by the customer. This section is strictly private and confidential to protect both Claimants and Defendants. The information given is taken from actual court cases.

Conclusion

We are aware of recommendation 32 of the Barker Report dated March 2004 and the requirement for the Industry to demonstrate an increased level of customer satisfaction. Clearly, that is a laudable aim and target. In addition, however, the OFT should recognize the growth of the claims culture and increasing demands (often unreasonable) from some customers for compensation.

A balanced view needs to be taken acknowledging the need for the industry to continue to strive to improve customer satisfaction whilst recognising the growth of the compensation culture and the need for the industry to be able to resist such vexatious claims.

Recommendations

  • Extensive protection is afforded to consumers who purchase 'new build' properties (see section 4 above).
  • Customer complaints will continue to be dealt with effectively as long as Housebuilders continue to respond to complaints within a reasonable timeframe in writing and are given access by customers to their properties to inspect and carry out works (if necessary) to deal with issues that arise. This involves the cooperation of customers.
  • The benefits of the NHBC "Buildmark", Zurich and Premier Warranties are extensive. Customers need to use the protection and support these warranties provide and the NHBC Resolution procedure (where appropriate). In addition, greater emphasis by Housebuilders on explaining the benefits of the NHBC "Buildmark", Zurich or Premier Warranties to customers before completion may also assist.
  • Customers also need to understand the difference between a 'snag' and a 'defect' and that financial compensation is not an automatic entitlement if problems occur and as a matter of public policy damages for inconvenience are to be kept to a minimum (see Watts v Morrow (1991)).
  • The greater use of mediation before litigation may help to prevent litigation, however, mediation is only possible when both parties agree to its use.
  • The regular review and revision by Housebuilders of their customer dispute resolution policies may also be of assistance.

Appendix 1

We set out below some of the unreasonable and vexatious claims brought by customers over the last 3 to 4 years.

Example One

The customer filed a court claim through 'Money Claims Online' for £50,000. The Particulars of claim ran to five words - 'Property Misdescriptions Act' and 'Age Discrimination.'

The customer paid a 5% deposit (the balance to be paid upon completion) but failed to complete the purchase. It became apparent that the he could not afford the property and was looking for an excuse not to complete. The 'Property Misdescriptions' element came from the fact the Claimant believed the fireplace to be in the wrong part of the room so he could not hang his flat screen TV in the middle of the wall. The 'Age Discrimination' element came from the fact he felt he "had been talked down to as he looked young". The customer also threatened to "put the Housebuilder's legal adviser in hospital" when the claim was resisted. The Housebuilder spent considerable sums defending the claim and eventually the Court struck out the claim. The Housebuilder pursued a claim for recovery of the remaining 5% of the deposit which the customer had not paid following completion and obtained Summary Judgment for £15,000.

Example Two

The customer complained about numerous snagging issues. The NHBC were called in by the customer to produce a definitive list of snags.

The Housebuilder carried out remedial work on some minor issues and replaced the cavity loft insulation and 8 radiators in the house as a gesture of goodwill.

After completion of the work, the homeowner claimed £20,000 in total (£8,098 of which was allegedly for utility bills and the cost of cleaning). The cleaning costs themselves equated to £1403 for himself (over £35 per hour!) and £3920 for his wife. He claimed his wife cleaned for 8 hours a day, 7 days a week and for 7 weeks at £10 per hour. The fact that the Housebuilder carried out the insulation works from outside of the house to minimise disruption and dirt, at an extra cost to themselves, was ignored. The customer claimed an extra £11,902 for "distress and inconvenience." This added up to £20,000. He then instructed solicitors, who requested an offer of compensation which was wholly unjustified legally.

Example Three

A customer brought a Court claim for the cost of (allegedly) rebuilding external brickwork due to the non-alignment of joints (no structural defect was found upon inspection and only minor cosmetic blemishes). The claim was for £111,000 (made up of £70,000 for remedial works, £11,000 for the cost of allegedly having to use alternative accommodation and £30,000 for compensation). The homeowner would not allow the NHBC to be involved. The claim was investigated and was found to be a bogus claim. It settled for £2,000 but only after the Housebuilder had incurred £18,000 in legal costs.

Example Four

A Court claim for the cost of replacing facing stones on a property due to weathering, plus other minor issues was brought by a customer seeking £35,000. The customer would not allow the NHBC to be involved. It eventually settled for £2,500, with the Housebuilder incurring costs of £10k.

Example Five

An unjustified demand for works to be carried out was made. The customer then started picketing the site and Sales Office and disrupting the ongoing development and tried to put prospective purchasers off buying new properties on the site. The customer would not allow the NHBC to be involved. The Housebuilder agreed to carry out some works and also paid £25k "compensation" if no more picketing occurred. Upon completion of the works the Claimant wanted £35k more for alleged disruption caused by those works. He then threatened to defame the company on the internet and wrote to his local MP making various unfounded allegations.

Example Six

A customer insisted that a Housebuilder buy back his property for £50,000 more than its true value because of the existence of some "snags." His only justification for the amount he was seeking was that this would help him afford another house which he wanted to buy. The customer would not allow the NHBC to be involved. When he didn't get what he wanted he rang the Chairman on his home telephone number and spoke to his wife threatening to visit them unless the Chairman agreed to meet with him.

Example Seven

A customer instigated litigation claiming damages for loss of profits etc (circa £3million) on the basis that he had contracted a disease from his property being (allegedly) built above a top-secret nuclear power station. The customer would not allow the NHBC to be involved. His claim was struck out by the Court and further applications and appeals after the claim was struck out were also dismissed.

Example Eight

The customer alleged that there were defects in the external brickwork of the property, in particular, with the quality of the pointing. The NHBC recommended some remedial works and the Housebuilder offered to carry out those works. The customer stated (on more than one occasion) that they did not want the remedial works to be carried out, but were only interested in "compensation".

Example Nine

The customer wished to purchase a home and signed a reservation form. The reservation form he signed made it clear that either party may withdraw at any time prior to exchange of contracts. The Housebuilder repeatedly asked him when he would be in a position to exchange contracts and why there were delays in exchanging contracts. A satisfactory explanation for the delay was never received from him. The reservation was cancelled by the Housebuilder on 30 May 2006 and they then returned the reservation fee of £99 to him.

He then commenced litigation asking for his solicitors' fees of £100 and requesting the Court to "uphold the sale". This would, of course, be impossible as no contracts were ever exchanged. Throughout the correspondence with him, he claimed to be a "Barrister" and "Queen's Counsel." He subsequently claimed to be a "solicitor" and also "the Law [sic] Chief Justice". Neither the Bar Council nor The Law Society had records of him being either a practicing solicitor or having been called to the Bar.

The matter moved to Court with a Case Management Conference before the District Judge on 15 January 2007. He was not able to justify his claims to either be a solicitor, a Barrister or the Lord Chief Justice. The District Judge Ordered the claim to be struck out as disclosing "no reasonable cause of action" and recorded that this claim was without merit.

Example Ten

The customer commenced litigation seeking a discount of £38,000 on the purchase price of a property in addition to a claim for loss of income of £2,500. At no stage did the customer particularise his loss of income despite frequent requests and provided no evidence. He also claimed legal costs. The Housebuilder sought to settle the claim but all attempts failed. At the trial at the County Court he was awarded £2,041, however, he was ordered to pay the Housebuilder's costs which exceeded his award for his unreasonable behaviour.

Example Eleven

Spurious claims were brought by a customer for the cost of replacing windows and replastering internal walls. He had originally pursued a claim under the NHBC Dispute Resolution Procedure but the NHBC had found against him. He then referred the matter to the NHBC Arbitration Scheme. The customer claimed that the standard of finish should be higher than the NHBC standard.

The claim had been quantified at £40,000 by a home snagging service provider. They provided an inspector who had no professional or building industry related experience or qualifications, and whose report listed no less than 231 items which were all declared by the author of the report to be "defects", although the observations contained in the reports were completely devoid of any qualitative commentary, and no regard had been paid to the Housebuilders specification or legal contractual standards that applied.

During the course of the NHBC arbitration, the customer had, in without prejudice correspondence, stated that he would be prepared to settle the claim for £5,000, on the basis that this was an amount of compensation that he had heard had been paid by the Housebuilder to one of the other residents on the development. He also made it clear in the same letter that if his demands were not met, he would continue with the arbitration simply to cause the Housebuilder to incur costs – the implication being obvious (i.e. he hoped that the Housebuilder would alter its position and pay him compensation in order to avoid incurring legal costs in defending his meritless and unsustainable claim).

Example Twelve

A customer brought a Court claim for the costs of replacing an alleged faulty boiler five and a half years after buying the property. The claim was for approximately £4,800. The customer would not allow the NHBC to be involved. All attempts to settle were rejected. The boiler was disposed of before it could be inspected and no maintenance records existed. Only one day before the final Court hearing the Court claim was withdrawn by the customer without explanation. This was because his spurious claim had not been met with an offer of compensation. The Housebuilder incurred £5,000 in legal costs.

Example Thirteen

A customer complained of snags. He would not allow the NHBC to be involved. The Housebuilder offered to carry out work to remedy them and arranged to inspect, however on each occasion the contractors arrived (by prior agreement), they were refused access with no explanation. This occurred on five occasions. On the sixth visit they were allowed in and as they worked, they were filmed on a camcorder by the customer. They returned later by agreement and carried out the necessary works to his satisfaction and he then commenced litigation seeking compensation. At trial the Court struck out his claim and ordered him to pay £15,000 costs to the Housebuilder for his unreasonable, vexatious behaviour.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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