Legal Q&A:We're trying to buy a house but its damp guarantee won't be assigned to us. Is this usual?

We're trying to buy a house but apparently the damp guarantee won't be assigned to us as it's already been assigned once before. Is this usual?

Question: We are buying a house that the estate agent said had a 30-year damp-proofing guarantee with about 20 years to run.

The house has had damp and was previously treated, so we asked the estate agent to check with the sellers and damp-proofing company to see if the guarantee will cover any work should the problem come back.

We have now been told the guarantee will not be assigned to us if we buy the house, as it can only be assigned once and that happened when the sellers bought from the people who'd had the original damp proofing carried out. This seems rather a waste of a 30-year guarantee. Is this usual? 

Answer: Whether a buyer will have any rights under a damp-proofing guarantee depends on its terms. Often, such a guarantee can be assigned when a new buyer purchases a property to which it relates. 

The procedure for registering such an assignment generally involves formally notifying the damp-proofing company of the new owner and may involve paying a small registration fee. On the other hand, the benefit of some guarantees automatically passes to each new owner of the property.

When your sellers bought the house their solicitor should have advised them that although they were being assigned a 30-year guarantee they would be unable to assign the benefit of it if they sold their property in the future. As you will not benefit from the guarantee, you may wish to agree with the sellers that they will have the works carried out under the guarantee prior to selling to you — but do ensure there is a term in the contract reflecting any such agreement.

Because the agents said there was a guarantee, you could also request a price reduction as you will not have the benefit of the cover should there be future damp problems.

These answers can only be a very brief commentary on the issues raised and should not be relied on as legal advice. No liability is accepted for such reliance. If you have similar issues, you should obtain advice from a solicitor.

What's your problem?

If you have a question for Fiona McNulty, please email legalsolutions@standard.co.uk or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE. We regret that questions cannot be answered individually, but we will try to feature them here. Fiona McNulty is a legal director in the private wealth group of Foot Anstey (www.footanstey.com).


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