Two purchasers are suing firms involved in the building of their harbour-side property which they say became unrentable after being flooded.
Rebeka Kahn and Kieran Tarbett ceased mortgage repayments for the new-build house in Tarmon Harbour, Tarmonbarry, Co Roscommon, which they agreed to purchase for €400,000 in 2005 and which ended up being sold by a receiver for €215,000 in 2022.
The property is part of a larger housing development overlooking marina berths. They allege its floor level was constructed 105mm lower than provided for in the planning permission and was too low to be safe from flooding.
They have sued four companies involved in the build over the costs of remedial works and professional fees, as well as an alleged reduction in value of the property due to an alleged breach of planning permission and a flood risk.
They are also seeking damages for alleged losses including the purchase price and their ongoing liability for mortgage interest.
Notwithstanding the sale of the property, they say they continue to owe “significant sums” on their mortgage, which had a balance of €301,000 as of March 2023.
The background to the case was set out in a judgment written by Mr Justice Mícheál O’Higgins, who permitted Ms Kahn and Mr Tarbett to maintain their claim for losses set out in a 2023 legal document, which was issued 12 years after they initiated their case.
The reliance on this document had been objected to by two of the defendants in the case: architecture firm Michael McNamara Architectural Partnership, which is sued over two compliance certificates it issued in 2007, and engineering company Clifton Scannell Emerson Associates Limited, which is sued over its certification of structural elements and associated civil works.
They, along with the main contractor for the build, Crosmac Limited, deny the claims made by Ms Kahn and Mr Tarbett. The case is also against Kilroe Developments Limited, which is in voluntary liquidation and against which judgment in default of defence was made in 2014.
The Michael McNamara firm claimed the new document amounted to an “impermissible attempt” to introduce matters that were not pleaded in the original legal documents.
It objected to them alleging they would not have purchased the property if its architecture certificates had flagged an alleged issue about the floor level.
Ms Kahn and Mr Tarbett’s claim they were unable to discharge the mortgage due to the flooding and lack of rental income is inconceivable where they have openly confirmed that they ceased making mortgage repayments on the property in May 2009, some six months before the flooding, the firm alleged.
Scannell Emerson agreed with the architectural firm’s submissions.
Ms Kahn and Mr Tarbett submitted that the 2023 file sets out losses arising out of issues that were within the existing claim.
Mr Justice O’Higgins said a contract of sale for the site was executed in 2005, which is some years prior to the issuing of any compliance certificate.
However, he said, the defendants should have been aware from the original legal case that Ms Kahn and Mr Tarbett were contending that they would not have finalised the sale if they had been told the floor level was not correct.
He said their initial legal documents reference the representation made to them that the development was in substantial compliance with building regulations and planning permission and that they relied on this to complete the sale.
Therefore, he believed “no issue of an ambush or surprise can fairly be said to arise” out of the new document.
