Legal Help for the Consumer
Since 1992, our organisation has developed a contract system to ensure a fair and equitable position for all parties throughout the course and beyond the project installation. Whilst we are able to offer advice and utilise the established contract system to customers wishing to use this service, we often help with enquiries where customers are either in contract or have completed a contract with a non-registered company.
Applicable Legislation
There is a side to our legal system which is based on legislation, although much of it is not specifically created for the construction industry and homeowner, parts of it can be used as remedies in an effort to resolve disputes. The following section will give a quick overview of the legislation and sections, which may be used as solutions to problems.
European Communities Act 1972
Section 9 provides that a person who deals with a company in good faith can rely that the work or service is something that the company has capacity to do. That a person does not have to make inquiries of the company's memorandum as to what their company was formed to do. An act outside a company's objects is 'ultra vires' and void. After all you would not expect your gardener to service your car, but if he did and there were problems he could be held liable.
Limitations Act 1980
Section 5 states that an action established on a simple contract (not necessarily in writing) must be brought within six years of the date at which the breach or fault occurred. Section 8 states that if the contract was made by deed (in writing) then action has to be brought within twelve years. If there has been concealment by the defendant the period of limitation begins from the time the concealment is discovered by the plaintiff.
The Latent Damage Act 1986
The act introduced new sections to the Limitations Act 1980.
Section 14 (A) was created to assist the award of damages for negligence, where an action could be bought within three years of a reasonable person being able to conclude that proceeding could be instituted and Section 14 (B) which allows for a long stop period of fifteen years added to the initial action for further negligent claims that may occur from the initial fault or defect.
Section 2 provides that an action of tort will not be brought after six years from the date on which the event occurred, and Section 11 states that, if the claim involves negligence, nuisance or breach of duty resulting in personal injury, the action must be bought within three years of the event taking place.
Sale of Goods Act 1979
As amended by The Sale and Supply of Goods Act 1994 apply to construction contracts, the important sections are as follows:
S.12 (1) In a contract of sale, there is an implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and in the case of an agreement to sell he will have such a right at the time when the property is to pass.
S.13 (1) Where there is a contract for the sale of goods by description, there is an implied condition that the goods will correspond with the description.
S.14 (1,2,6) as amended 1994 That where the seller sells goods in the course of a business, that they are of 'satisfactory quality' and fit for the particular use.
S.15 That the bulk will correspond with the sample. (It should be noted that these sections apply to the goods or materials supplied and not the workmanship on site).
S.17 (i) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
S.17 (ii) For the purpose of ascertaining the intention of the parties, regard shall be taken as to the terms of the contract, the conduct of the parties and the circumstances of the case.
Section 18: Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.
Supply of Goods and Services Act 1982
There are some important sections of this Act that apply to construction contracts, they are contained within sections 13, 14 and 15 and are specifically aimed at ordinary building contracts between the 'builder' and the ordinary 'citizen'. They provide that contracts are subject to implied terms that "the supplier will carry out service with reasonable care and skill, in the absence of agreement, and the service will be carried out within a reasonable time and for a reasonable cost". This is only effective if homeowners are aware of this legislation, and the rights inferred by it to them.
Unfair Contract Terms Act 1977
Lastly, this legislation is aimed at clauses excluding or restricting the implied rights of a buyer, as to their description, quality, fitness, in the main, aimed at the consumer sale, but also applicable to building contracts Section 7. Section 2(1) provides that liability of death or personal injury may not be excluded where it results from negligence and Section 2 (2) extends this further to allow for loss from negligence, limited by that considered to be fair and reasonable. Section 3 applies to written standard terms and makes them enforceable, so far as is fair and reasonable, this will apply to a private individual who contracts with a builder using his normal commercial standard form of contract, the JCT contract.
All of these points of law, if required, can be found in any good business or contract law book at a local library.
Conclusion
By far the best way to prevent problems arising when taking up the services of a builder or installer has to be by putting any agreement in writing. A written contract is much easier to work with when things go wrong in comparison with a verbal agreement, which often results in one party's word against the others.
Trading Standards Departments, contactable through your Local Council Offices, provide invaluable assistance with all issues surrounding Consumer Laws. Online help can be found via their main website at www.direct.gov.uk
