Defective Premises Act

It has long been the case that a person who takes on work for or in connection with the provision of a dwelling owes a statutory duty to see that the work which he takes on is done in a workmanlike or professional manner, with proper materials, so that the dwelling will be fit for habitation when completed. Whilst there has been some case law on the point, the recent review and guidance by HHJ Toulmin is certainly welcome.

The case of Bole & Anor v Huntsbuild Ltd & Anor [2009] EWHC 483 (as upheld by the Court of Appeal) provides a helpful review of both The Defective Premises Act 1972 ("DPA") and the subsequent authorities which have dealt with interpretation of the Act.

Dispute: The property was purchased by the Claimants, Mr & Mrs Bole in late 2001 who subsequently brought an action against the house builder, Huntsbuild Ltd and the structural engineers, Richard Money Associates under the DPA due to substantial cracking contending that the property as built was unfit for habitation as a result of inadequate foundations.

Limitation: Section 1(5) of the DPA provides that a cause of action in respect of a breach of duty accrues at the time when the dwelling was completed, event though a cause of action may arise earlier (for instance under a breach of contract or negligence claim).

Scope of Duty: Section 1(1) provides that the duty imposed by the DPA extends to a person taking on work for or in connection with the provision of a dwelling - to include erection, conversion or enlargement of a building. Following a review of the authorities HHJ Toulmin found that the test of "unfitness for habitation" extends to "defects of quality" as well as "dangerous defects"; rendering the dwelling "unsuitable for its purpose". This may be the case even if the defect "does not apply to other parts of the dwelling" - HHJ Toulmin finding that there is no need to look at each room in isolation.

Damages for Distress: General damages are recoverable for distress but are generally limited to damages for physical inconvenience and discomfort and related mental suffering. In this case these were agreed at £4,500 for effectively 8 years distress and inconvenience.

Law Commission Report: The report which led to the DPA was considered by the Court and in particular that each of the three requirements of (a) good workmanship, (b) proper materials and (c) fitness for habitation, should be met.

Future Problems: The Court referred to the case of Batty v Metropolitan Property Realisation [1977] which held that the unfitness for human habitation could refer to "prospective consequences" as well as to current defects and that of Andrews v Schooling [1991] which held that if when the work is completed the dwelling is "without some essential attribute" it may be unfit for habitation though the problems have not yet become patent.

Test to be Applied: A Claimant has to prove that the Defendant's failure to do his work in a workmanlike manner (or by implication with proper materials) has caused the property to be "unfit for human habitation"; by reference to Bayoumi v Protim Services [1996].

Exclusion: Whilst Section 2 includes an exclusion from the statutory remedy for an "approved scheme", the Court confirmed that recognition of the NHBC Scheme has lapsed as so no longer applies as a grounds for exclusion.

Comment: The Court held that applying the test of whether the house was "unfit for habitation" in the sense of being "unsuitable for its purpose", the house as built was unfit for habitation (under Section 1 of the DPA) in that it was built with unstable foundations which resulted in movement and cracking and other defects caused by heave. On the appropriate remedy HHJ Toulmin held that it was reasonable for the Claimants to insist on a solution which brought the defects to an end notwithstanding the additional cost when compared with an alternative but less certain remedy.

Advice: As a purchaser, the DPA is useful in that it can apply a stricter test than that provided under the contract with duties that cannot be contracted out of by the builder, architect, engineer or bespoke product supplier. As a person undertaking works in connection with a building, you need to be aware of the statutory duty of care which arises under the DPA out of which you cannot contract.

For more information please contact Steve Clarke or Anna-Liisa Walden.

Disclaimer: This article should not be relied upon or taken as factual statements of law. If necessary, professional legal advice should be taken.

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