Claims for defective works to domestic properties can be brought under the Defective Premises Act 1972 ("the Act").
The Duty to Build Dwellings Properly
Section 1 of the Act provides the basis for claims against defective domestic properties.
"S.1 Duty to build dwellings properly
(1) A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty
- if the dwelling is provided to the order of any person, to that person: and
- without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling;
To see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards work the dwelling will be fit for habitation when completed."
The Act imposes the duty on those involved with the construction or design of dwellings, whether new properties or those being modified, to work in a "professional" or "workmanlike" manner with "proper materials".
What is a "dwelling"?
The term "dwelling" is not defined in the Act, however there is a range of caselaw offering guidance as to whether a particular property will be included within this term.
In Catlin v Carter, Toulmin HHJ stated that a "dwelling house is a building used or capable of being used as a dwelling house, not being a building which is predominantly for commercial and industrial purposes"1. A "dwelling" therefore could be a residential property such as a house or flat, but not a commercial office space.
In Rendlesham Estates plc2, Edwards Stuart J suggested that an entire block of flats could not be described as a dwelling, on the basis that it would not be correct to describe the occupier of one apartment as occupying multiple apartments or sharing that space in a large block of flats. Similarly, using the same example, common parts used by multiple flats, such as a basement car park, could not constitute a "dwelling", as they are used and shared by multiple occupiers.
As established in Jacobs v Morton3, whilst the Act applies to the conversion or enlargement of a building, it does not apply where repairs have been made to an existing property. An exception to this is where the enlargement of the property constitutes a new property of a wholly different character to the property before the works were undertaken. This is a difficult distinction to make, however, as in Jenson v Faux4, the Court of Appeal held that, even though the property in question had received substantial remodelling and extension, it did not create a new dwelling that was wholly different from the property before the works, and therefore did not fit the definition of "dwelling" for the purposes of the Act.
What does "fit for habitation" mean?
The Act sets the required standard as being that the property must be "fit for habitation"; therefore, the claimant must prove that, as a result of the work completed by the person, the house is no longer habitable. Where there are multiple defects, the test is not whether each individual defect renders a property unhabitable, but instead in considering all of the relevant defects, whether a property as a whole is unhabitable5.
A property can also be found to be unhabitable where the damage is not directly caused to the property in question. For example, in Harrison v Shepherd Homes6, the court found that defects in the foundations meant that the property was unfit for habitation, despite the fact that the property itself had little damage. Ramsey J stated, "whilst I do not consider that the damage to the properties has rendered them unfit for habitation, on balance, I am persuaded that any significant defects in foundations are properly matters which could be said to give rise to a lack of fitness for habitation7".
In Rendlesham Estates Plc, following a helpful summary of the relevant caselaw, Edwards Stuart J offered the following guidance on the requirements for a property being rendered "unfit for habitation":
"for a dwelling to be fit for habitation within the meaning of the Act, it must, on completion (without any remedial works being carried out):
- be capable of occupation for a reasonable time without risk to the health or safety of the occupants: where a dwelling is or is part of a newly constructed building, what is a reasonable time will be a question of fact (it may or may not be as long as the design life of the building); and
- be capable of occupation for a reasonable time without undue inconvenience or discomfort to the occupants."8
In applying the tests as set out above, the relevant date is the date of completion of the works for the purposes of the Act. A useful metric is that, if a dwelling would not be approved under the Building Regulations as fit for habitation, it most likely would not be under the Act either. The Act and the applicable factors must be considered in respect of the different types of persons it may affect. This includes people who are pregnant, babies, and people with health conditions, such as asthma. Whilst it is clear that the inconvenience must be more than "relatively trivial"9, the cost of remedying the defect has no effect on whether there has been a breach, although it will of course have an effect on the sums recoverable when seeking a remedy. For instance, serious inconveniences such as the repeated breakdown of a lift may constitute a breach of the Act, even if repairs are not considerable.
Taking on the Work
When assessing whether a person has taken on the work, the court places a heavy emphasis on whether that person positively contributed to the creation of that dwelling10. This captures not only those who physically created the dwelling, for instance the main contractor, but those responsible for the design of the works, such as architects, engineers, quantity surveyors and subcontractors who are directly employed for provision of the works or supervision of the works.
What can be claimed under the Act?
The Act does not explicitly state what damages are claimable; however, general damages for breach of the Act are recoverable for the natural consequences of the breach11. Therefore, it follows that all reasonably foreseeable losses are claimable, and this may extend to economic losses and consequential economic loss, meaning you can claim not only for the cost of reinstatement for the defective work, but also the losses that stem from its loss of use.
Limitation Period
Claims under the Act were previously subject to a limitation period of 6 years, running from the date of completion of the works. This has since been amended by the Building Safety Act 2022 ("BSA"). The limitation period has extended under the BSA to 30 years retrospectively for breaches that occurred before the date the BSA commenced (28 June 2022) and 15 years prospectively for any breaches that occurred after the commencement date.
At Barton Legal, we specialise in all aspects of contentious and non-contentious construction law, navigating the complexities of contracts and proceedings. Whether in relation to projects in the UK, Europe, or further afield; we have a team dedicated to producing the best possible outcome for organisations of any size.
To find out how Barton Legal can help you, please click here.
Footnotes
1. Catlin Estates Ltd and another v Carter Jonas (a firm) [2005] EWHC 2315 (TCC) (at [296])
2. Rendlesham Estates plc and others v Barr Ltd [2014] EWHC 2968 (TCC)
3. Jacobs v Morton and Partners [1994] 72 BLR 92
4. Jenson and another v Faux [2011] EWCA Civ 423
5. Bole v Huntsbuild Ltd (2009) 127 Con. L.R. 154 CA.
6. Harrison v Shepherd Homes Ltd [2011] EWCH 1811 (TCC)
7. Harrison v Shepherd Homes Ltd [2011] EWCH 1811 (TCC) (at [164])
8. Rendlesham Estates Plc v Barr Ltd [2014] EWHC 3968 (TCC) (at [68]).
9. Rendlesham Estates Plc v Barr Ltd [2014] EWHC 3968 (TCC) (at [69]).
10. Lessees and Management Co of Herons Court v Heronslea Ltd [2019] EWCA Civ 1423
11. Bayoumi v Protim Services Ltd [1996] E.G.C.S. 187 CA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.