October-19-2016 in Property

Fire safety was not traditionally something that would concern a purchaser when buying an apartment. Most purchasers would have taken the view that a development could not have been built nor occupied if there were any fire safety issues to be concerned about.

Unfortunately, this has turned out not to be the case in many developments. This big issue however is who is responsible when a purchaser’s dreams “go up in smoke”.

This very issue was discussed in the case of Hill v. Wall [2016] IEHC 367, where the High Court dismissed a claim of deceit (fraud) against two property developers arising from the sale of an apartment, where the property was in breach of fire safety regulations and an attic space was not habitable, on the grounds that there was no false representation and that the situation as regards the attic had been made clear.

Conveyancing process

Ms Hill (the plaintiff) bought an apartment in 2006 and rented it out to a private tenant until March 2010. She then decided to let it out to a local authority tenant but before she could do so the property had to be vetted by the fire authority. The fire inspector found that the apartment had been constructed in breach of the fire safety certificate applicable to Ms Hill’s apartment and directed that the stairs to the attic space be sealed off, removing any possibility of it being used as a habitable room.

Ms. Hill filed a claim for deceit (fraud) against the two developers she purchased the apartment from alleging that they knowingly sold it without disclosing that they had not complied with fire safety measures, thus making the apartment unsaleable and uninhabitable and causing her to suffer a loss.

To determine if there was an act of deceit or fraud by the developers, the court examined the conveyancing process in detail. Mr Justice Barrett quoted the replies to the specific planning queries on title raised by the solicitor engaged by Ms Hill to do the conveyancing of the apartment, and the replies given by the solicitor for the developers.

The replies to planning queries referred to an Opinion on Compliance of David Whelan, a civil engineer. In his opinion Mr Whelan expressly stated that compliance with Part B of the Building Regulations (ie fire safety) was dealt with in a separate certificate of another civil engineer, Mr O’Connell.

Mr O’Connell’s certificate dated 4 May 2006 stated that “the attic space from apartment No 3 cannot be used as habitable space and is only permitted as storage”.

Professional opinion

On the evidence, the court found that the fire safety issue was in fact expressly identified to her solicitor as early as 2006, and on this simple fact Ms Hill’s claim of deceit (fraud) arising from some purportedly false representation regarding fire safety compliance collapsed.

Ms Hill further complained that:

(a) the developers, after they engaged the engineer Mr Whelan, handed certain planning documents to him and that he gave his opinion by reference to these, rather than consulting the planning file at the local planning authority offices

(b) the developers knew themselves to have departed from the planning permission in the course of their development works and hid this fact.

After hearing evidence from the developers, the court found that the developers did give some planning documents to Mr Whelan but only in a bid to assist him and no more. It was up to Mr Whelan to do his job properly after that, and there was no evidence that the developers sought to influence Mr Whelan in how he did his job.

As to complaint (b), even if the developers knew themselves to have departed from the planning permission, the court was of the opinion that the developers were entitled to take the same comfort from the opinion on compliance of Mr Whelan as Ms Hill and her solicitor took when they received the opinion. Again, it was up to Mr Whelan to do his job correctly.

Above board

The court expressed sympathy for Ms Hill but it ultimately held that there was no basis for finding any deceit (fraud) on the part of the developers. They sought at all times to do right by the planning permission, right by law and right by Ms Hill. This was shown by the fact that the developers engaged professional advisors in order to ensure that everything was done ‘above board’ and this, the court held, was the very antithesis of the tort of deceit (fraud).

The timing of the case of Hill v Wall is particularly appropriate given the recent fire safety issues that have come to light in apartment complexes. The decision emphasises the important role that the conveyancing process and professional advisors play when it comes to fire safety compliance. Vendors and purchasers rely on their solicitors and professional advisers to do their job correctly. It highlights the importance of purchasers engaging their own professional advisors to conduct their own fire safety investigation rather than relying exclusively on what they are given.

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