Badly fitted and leaking windows-legal stance advice please?

Discussion in 'Finance, Property, Law' started by gloworm, Oct 27, 2008.

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  1. Hi All,
    apologies if this is a duplicate post, I don't start many.
    I purchased a flat in June 2007, the windows in the place had been replaced in the February by the previous owners. In short, the windows have no structural support, they are a three bay flat window that faces directly onto the sea, the winds howl in off the West coast and they get the full force.
    The bay flexes around the two vertical axis ans across the top which has no lintle.
    The things leak like seives and have bowed visibly inwards with striations appearing in the roof above as the thing settles and cracks.
    The firm claim I have no warranty with them as this was with the previous owner.

    I wrote

    Without Prejudice

    Dear Mr xxxx,
    in our dealings with Allerdale Windows/BB Glass we have always maintained that the original problem was that the windows leak significantly which Allerdale/BB Glass conveniently seem to have tried to avoid recently. Your e mail of the 23/10/2008, a copy of which I have attached below is therefore incorrect in its content I am afraid.

    The leaks manifests themselves under wind loadings which cause the window structures to flex around the three axis on the marked up photograph. this causes weak points which open to allow water to enter the building structure. The problem was due to the inadequate structural support during installation.

    Despite clear and concise instructions from your Clients designer for additional sealing measures (written onto the original spec sheet) the windows were never adequately sealed from outside (this was apparently due to lack of scaffold) and this lack of sealant to the frames also exacerbates the leaks which can not be adequately sealed from the inside as has been proven over the eight times that Allerdale have been out to try to rectify the problem. If Allerdale could not carry out a fit for purpose installation using these methods they are duty bound to point this out to their client and to refuse to do a substandard installation.

    We have entered into discussions with Allerdale/BB Glass over the last eighteen months trying to resolve this matter amicably. After such a long period of time and despite promises and assurances from your client, nothing had materialised and we had to take matters further.

    The structure is weak due to the lack of an overhead brace/support/lintel. UPVC windows are not load bearing unlike the wooden windows pre 1930 which were designed to transmit loads around and into the structure. this is well documented and appears in numerous articles in the Glazing federation publications.

    With Winter coming and the first of the storms arriving I need these windows (there are two which leak both supplied and 'fitted' by Allerdale/BB Glass) rectified which will unfortunately require Allerdale to carry out works which they should have done in the first instance.

    Please also note that water damage to carpets, plaster and paintwork will also require remedial works.

    Since the leaks manifested themselves the window in the main bedroom has bowed in by 1.5" from the centre to the outer edges, the structure above on the right hand side has started to show striations and cracks to paintwork and plaster showing settlement.

    Allerdale as 'Subject Matter Experts' were employed to provide a fit for purpose installation which they as designers and manufacturers are obliged to supply.

    The lack of structural strength in the replacement frames supplied by Allerdale is an issue I am afraid as is born out by the photographs and physical evidence. The frames are not attached adequately to the existing structure to tie the two together.

    When our surveyor made his report the problems arising from the lack of support which the new windows are not providing did not at that time manifest itself in the now progressive failure of the structure - it can take a time for this to happen hence this was not apparent to the surveyor at the time of inspection. Settlement occurs gradually and in this case is compounded under wind loadings, the recent inspection has since confirmed our concerns.

    The structural problem now appears to be showing itself above the 'new window' hence the 'new windows' are not offering the longevity of support which they should be. Removal of the existing window has obviously degraded the structural integrity of the installation- Support is obviously required which the 'new windows' are failing to provide with the structure above settling on the window assembly which is not able to withstand these forces.

    If you look at the marked up photograph you will see the axis that the wind loadings are causing bending moments around with weak points at the joins.

    This being the case, then the new windows should be considered as being not fit-for-purpose, and if a lintel was not observed by the installers, then they should have designed their windows to carry any structure/loading from above it - Allerdale undertook a survey also and as Subject Matter Experts, therefore have a duty of care, that they do not design / install /leave any installation in such a situation that it will degrade shortly after they leave site.

    Regards,

    Their Solicitor wrote the following.

    We acknowledge receipt of your without prejudice email dated 23rd October.

    Our client’s position both legally and factually are set out in this Firm’s open letter to you.

    With the greatest of respect you are missing the point.

    1. Our Client Company has no legal contract or relationship with you and is not liable to you in any respect. You have no cause of action against our Client Company even if they were at fault.

    2. As you point out PVCu windows are not structural items and are not designed to be load bearing. The windows installed for your predecessor in title were of course not, by definition, load bearing.

    3. The problem is clearly that the structural integrity of your property was compromised years ago when one of the previous owners removed the existing wooden windows and who can say what else and arranged for PVCu windows to be installed.

    4. We repeat that our clients have simply replaced one set of PVCu windows with another.


    5. The problems that you describe are clearly due to the inadequate structure of your own property, which has clearly existed for some time. Our Client Company is not responsible for rectifying the structural defects with your property which were caused years ago by some third party. We can only repeat our suggestion that you should seek legal advice.

    Your proposed claim against our Client Company is based on a misconception and our Client Company has no offer to make. We are instructed not to engage in any further correspondence. How you proceed from this point is entirely a matter for you.

    Yours faithfully

    Question now is, do I bite the bullet or have I got enough to go to court with?

    I have obtained three quotes for replacement, all agree the things are rubbish but then they want the rework job. I have also had a structural surveyor out, he has rubbished the work too.

    Any advice welcomed as I have never had to go the whole legal hog before.
     
  2. Sympathetic_Reaction

    Sympathetic_Reaction LE Book Reviewer

    I would suggest the first port of call being FENSA....I asusme the glazing company was FENSA registered as they would have had to supply a certificate to show that the windows were installed correctly in accordance with building regs.

    If there is no structural support for the window bay then this probably (looking at the FENSA site, almost definitely) breaks building regs and the company installing them are at fault for not meeting them.

    I assume as part of your buyers pack you had a FENSA certificate issued by the glazing firm when they installed the windows. If so I would either ring FENSA directly quoting the info on the certificate and ask them to come and inspect....or get in touch with the company and threaten to do so.

    S_R
     
  3. no lintel above a window? You should be sueing your surveyor for not spotting it when you bought the place. If your property is indeed old and the wooden windows acted as a lintel the surveyor should have been aware of this, that is why he has Chartered status (you did get a survey before you bought the place?). The previous owner may also be at fault but a court may find that he/she had no knowledge of construction and was only partly to blame. Replacement window companies do not provide structural support for windows unless that is part of their package (normally firms on large commercial projects). The winow company should have mentioned the lack of lintel but the previous owner may have ignored their advise and told them to carry on regardless.

    Write a letter to the surveyor and cc it to the RICS (http://www.rics.org)

    Retro fitting a lintel isn't hard but a bay window is a different matter. You will need a steel frame to which you build the windows around.
     
  4. Unless the windows were installed with the benefit of a warranty assignable to future owners of the property (which ought to have been pointed out ot you at time of sale), the only liability the company had was under their contract with the previous owner. On the basis of 'privity of contract', they have no contractual relationship with, or responsibility to you.

    Your opportunity for rectification was at the time of purchase, when you had the opportunity (at least in theory) to inspect the windows and either not buy the place or negotiate a discount with the seller (with whom you have/had a contractual relationship). Otherwise it is 'buyer beware'. The lawyers might have some further thoughts, however, this is a well established principle in construction law (hence why people spend so much time and money on collateral warranties to get round this principle, and why the Contracts (Rights of Third Parties) Act was passed in 1999. Unfortunately, that Act does not automatically give rights to third parties, it just allows those rights to be expressed in the contract, rather than a separate document, so it does not go that far.

    Sorry, but I think you are onto a loser.
     
  5. Thanks to all, I have contacted FENSA and have taken legal advice, as the place is a flat in a building managed by a maintanance company with building insurance, the insurers seem keen that the structure is not compromised and as such are taking a very keen interest.

    Much appreciated
     
  6. As a follow up Gents I have had a positive from Fensa

    Dear xxxx, if a lintel was needed then the installer should have put
    it in. We would like you to send us the structural engineer's report
    once completed by post and please also send the print out of the
    pictures. The address to send it to is 44-48 Borough High Street London
    SE1 1Xb.

    Regards,

    FENSA Adminstration NS
    Tel: 0870 780 2028
    Fax: 0870 780 2029
    Website: www.fensa.co.uk

    Thank you again for your help and advice
     
  7. 1. Your solicitor should have checked, when you bought the flat, that the new windows came with an assignable warranty. If they did not he should have told you, if he did not go and bite his arrse.

    2 If the windows were incorrectly fitted and the double glazing company are hiding behind a privity of contract point, sue them in tort. They, arguable, have a duty of care to not only the current owners of the flat but also future owners (within a reasonable timeframe) as it is clearly forseeable that the flat may be sold on.

    3. Keep on at FENSA if you can achieve some sort on settlement / compensation through them it maybe your easiest and cheapest option
     
  8. sorry to hear of your woes.

    just to clarify for future reference as you seem to have the mater in hand:

    a) FENSA is obligatory for all double glazing

    b) the FENSA certificate is assignable to a new property owner (thats the whole point of it!)

    c) flats always have building and contents insurance built into the management fee (well it is rare for it not to be) - so that is awlays a useful first port of call.


    NB you should be able to claim for the secondary damage that has been done too. but be warned, some damage is structural and so will come from the builsings insurance and some is contents, (eg carpets) which will come on your own personal home insurance if you had it.

    Glad to see you have this now sorted almost.
     
  9. There may be a professional claim against both the surveyor (if you had one) and your solicitors who acted for you in the conveyancing transaction. The fat that new windows had been inserted would have come up in all those lovely forms that the Sellers had to complete, being a flat they would have required the Landlords permission to change them which would mean yet more paperwork and then there should be a FENSA certificate or some type of paperwork from the Sellers, if there was then it should have been the job of your solicitor to tell you that the guarantee was not transferable to you. Most of these things are they just require a letter and a bit of form filling in.

    I suggest that you go back to your solicitor and surveyor to get them to clarify why these issues were not raised by them. You may be able to get any money back that you have spent in connection with getting the problem solved.
     
  10. I am not saying this because I am a Solicitor but I think this is the long way round of resolving things and I am not sure a Solicitor has done anything wrong. He cannot warrant that the windows are of good quality but only protect your back (and theat of the mortgage company) by checking that there was a FENSA cetificate.

    If that was the case then every Solicitor would be legally responsible for any defects in a property! And that is definately not the case.

    As for the surveyor, that is different kettle of fish but again, if you just got a "normal" survey done, the surveyor only looks for patent defects, ie those that are visible to the naked eye.

    If you paid extra for a formal valuation then you would have a better claim.

    the right course of action is FENSA and your building insurnace me thinks!