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Letter to and from Mr Mark McDermott, Law Society of Ireland
30th April 2014
Dear Mr McCloud
I have passed the documentation you sent me to members of the task force appointed by the Conveyancing Committee to advise solicitors on the new regulations.
The following is the response I have received:
“The members of the task force have sympathy with the situation of people who wish to build their own houses by direct labour and appreciate that many people who wish to self-build might not otherwise be in a financial position to own their own home.
The Department of the Environment, Heritage and Local Government excluded representatives from the solicitors’ profession from the consultation process by the Department of Environment, and our profession had no role in the policy underlying the regulations or either the process or the forms required.
It is clear to us that the understandable wish of people to build houses by direct labour is not reflected in the manner in which the regulations and forms were prepared.
The Conveyancing Committee guidance, which already has been issued, is that solicitors acting for purchasers of property built on foot of the new regulations will require a copy of the final certificate and proof that it has been registered by the Building Control Authority.
There are no proposals to advise solicitors to look behind the certification, nor to question the competence of any self-build owner who completes the forms.
The guidelines include a comment that self builders with no experience acting as a builder might have difficulties in getting an architect, engineer or surveyor who is willing to undertake the task of acting as an assigned certifier. The view of the members of the task force is that this is a statement of fact, but they will not be seeking to lobby such professionals to decline to act in such cases. That should be a matter for the particular professionals.”
I regret, therefore, that we do not seem to be in the position to assist you.
17th April 2014
Dear Mr McDermott,
With the introduction on 1 March last of the Building Control (Amendment) regulations 2014, (S.I.9 of 2014) self-builders have been received confusing and contradictory advice from the Minister for the Environment, Community and Local Government and from his Department as to whether it is possible for an owner, someone without prior contracting experience, to manage and build their own home under the new regulations. Our assessment of the situation under the regulations is as follows.
1) The owner may be able to nominate themselves as the “builder” (as per DECLG advice attached). However, also per the DECLG advice attached, only a principal or owner of a building firm, a "competent builder", may sign the completion certificate. A “competent builder” is defined in the attached code of practice.
2) Provided a registered professional assumes the duties of assigned certifier (which is contrary to LSI advice), stage payments will be made (usually) on foot of recommendations for payment as per a normal building contract. This will remain unaffected unless the contractor or the professional certifier retires from the project.
3) At completion stage, the final payment usually is due on practical completion. This may remain the case under the S.I. 9 regime. However, no revised contract has been issued to incorporate the necessary S.I.9 local authority completion/validation process. This stage is unclear.
4) Completion documentation ideally should be lodged 3 weeks before practical completion, to ensure validation and practical completion occur at same time.
5) However under S.I.9, a building may not be occupied or used until the local authority has received and also validated the Certificate of Completion. It is likely that such validation will become a condition of financial institutions to release final payment, because occupation and "fit-for-purpose" now are governed by two separate sets of documentation. It is quite possible that under the building contract the build may be practically complete, i.e. "fit for purpose", while at the same time an owner may not be able to occupy the building until the local authority validation procedure is completed. Under S.I.9 time is "at large" if completion documentation is deemed by a local authority to be invalid. This is a source of concern due to timing, delays and possible claims.
6) Under S.I.9, the builder's completion certificate "must be signed by a principal or owner of a building company only". The DECLG have issued conflicting guidance to local authorities and IAOSB on this. However, your Society has indicated that there may be difficulties for certifiers in compliance with this, and you recommend certifiers not to undertake any self-build projects (see your attached guidance note, and DECLG correspondence).
7) Notwithstanding this, no local authority code of practice has been issued as a definitive guide to implementation by DECLG to building control officials in local authorities. Due to this there may be differing interpretations by building control officials of S.I.9; e.g., commencement and completion documentations, certificates, materials records, part D compliance etc.
8) The code of practice issued to professionals does not mention anywhere an owner undertaking the role of builder in a project- it stipulates a "competent builder". The definition of a competent builder is a person who has at least 3 years similar building experience. This is at odds with DECLG advice to date. This is referenced by law society guidance to professionals not to certify self-builds.
Due to the following:
- Contradictory guidance issued by DECLG to date; that owners may nominate themselves as builders on commencement but that a "competent builder" must sign the completion certificate;
- The uncertainty around “competent builder” where the owner / self-builder does not have at least 3 years similar building experience;
- The law society guidance recommending professionals not to certify self-builds;
- The lack of a local authority code of practice giving definitive guidance on status of self-build;
- The lack of appropriate guidance from the Attorney General on the matter;
- The lack of building contracts that incorporate new roles in S.I.9
One could conclude that any self-builder, nominating themselves as builder for their own house, is likely to experience completion delays and legal/ conveyance issues.
Therefore, we at Irish Association of Self Builders, on behalf of our members about to commence self-builds request clarification on conveyance issues from the Law Society as a matter of urgency.
Look forward to hearing from you soon and hope that you include your guidance in the gazette of law society.
Irish Association of Self Builders