Free Traffic Legal Advice

Hi, asking for advice for a friend - the buyer.
Situation is the house they are purchasing had spray foam insulation in the roof which their mortgage company advised would have to be removed and replaced with non-spray foam insulation prior to them even approving their mortgage offer. Apparently this is not uncommon now.

Vendor and buyer went halves on the cost of this. Contractor spoke to the council to explain what they were doing and how they were going to re-insulate and asked if they needed to comply with current building regs and were advised by the council that they did not need to. Reason for this is that current regs would mean deeper insulation than the existing rafter depth thereby decreasing height in the roof space which is not wanted due to it making the roof uncomfortably low.

Works now completed, mortgage company are happy and have issued the mortgage offer, but buyer’s solicitor refuses to proceed as she says it requires building regs approval. Buyers have stated they are happy to proceed regardless but solicitor refuses saying she has the mortgage company’s interests to be wary of. Indemnity is not possible as works have been carried out in the last 6 months.

Current only feasible solution seems to be sack current solicitor and lose all associated fees etc and try a new one and not disclose the insulation issue, but this will cost significant sums not to mention the delay on an already lengthy process to get this far. Any advice on any polite words/legal terminology to use to “force” the solicitor to move forward would be very welcome as surely she should only be acting in her clients’ interests and as instructed rather than worry about the mortgage company’s interests who have their own surveyors and legal team to think about these things.

Contractor spoke to the council to explain what they were doing and how they were going to re-insulate and asked if they needed to comply with current building regs and were advised by the council that they did not need to.


In writing, of course?

In which case, why would the solicitor take a view contrary to the council's? It doesn't make sense IMO.

One question, if I may. Given, or assumed, that the solicitor is working on behalf of lender also, would they now be duty bound to report this issue to the lender? I’m just wondering if my friends take the nuclear option of sacking the current solicitor, not declaring the works to a new solicitor etc. would this be an absolute folly on their part as the damage, so to speak would already have been done with the lender.

Depends on what your friend has signed. Normally, the duty of confidence would prevent the solicitor telling anyone else but if a waiver has been signed they can. Of course, if the solicitor’s duties conflict between lender and buyer, they will cease to act for both. If that happens, it’s pretty obvious to the lender what has happened, though they may not know the details.

One issue your friend may have is being absolutely certain of what B.C. want, but also what the lender wants.

Part L is the relevant part of the regs, but the compliance metrics will depend upon when the building was constructed, what renovations have been undertaken since and when, and any change of use (if B.C. regard it as major renovation then compliance with the current regs would be normal, otherwise the earlier regs, and if existing insulation was not removed when foamed it may comply).

You may need to escalate within B.C. and it may need inspection and certificate.

There are a number of issues with foam. Roof loadings due to weight, and rot in roof timbers are two major ones.

Some lenders will not lend even after removal taking a view that if the foam had been installed for a significant length of time the damage may already have been done and it cannot be easily verified (though your friends lender seems happy).

General rule (of thumb) is that building regs aren't retrospective, unless relevant work is being done to that part of the property.

Other than the general send three and fourpence and the consequent dentistry, it always concerns me when a poster states something as fact and then proceeds to cite an actual fact which merely indicates that their statement could potentially be true.
If the lender is happy with the loft as it now is, then seemingly no problem. If the lender has made an offer and therefore must be happy with it, you are Mr Hankey and I claim my £5.

There are technical solutions if the building regs need to be complied with, but not cheap. 100mm of Kingspan would have a roughly comparable U-value to 270mm of loftroll.

I have heard suggestions that a material change to the fabric of a property would void an existing EPC - although I suspect that that is more a case of good practice than an actual regulation.

as @Andy points out, the lender has made an offer and therefore must be satisfied. I might be tempted to write to the Solicitor stating that fact and that they (the solicitor) is being unnecessarily obstructive.

as @Andy points out, the lender has made an offer and therefore must be satisfied.

That was not what I was pointing out. That was pretty much the opposite of what I was pointing out.

Thank you all for your points and replies - you’re a most helpful and knowledgable bunch.

I’ll pass on all the info as I’m not currently aware of what the specific conditions of the mortgage offer were other than the spray foam had to be removed.  Presumably it is fair to assume that this would imply any remedial works would need to comply with building regs even if this isn’t explicitly stated.

I think the easiest option for them is to approach BC themselves or appoint an independent BC to clarify.

Thanks again, all of you!