News & Press Release

Posted: March 18, 2016

The proposed amendments to the Construction Act have been in the news over the past few months. However, it is another piece of legislation, now nearly 40 years old, that was recently given a boost by the Court of Appeal.

The Defective Premises Act 1972 was passed to give owners and occupiers of dwellings protection against bad workmanship or design. The Court of Appeal in Bole vs Huntsbuild has now upheld the claims of a couple whose house was affected by heave caused by shallow foundations (Tony Bingham reported the original High Court decision in 17 April 2009). The court’s comments, and its endorsement of the original judgment, will increase the use that can be made of the act. Any person or company that has an interest in a dwelling can take advantage of the rights given by the act. The interest need not be that of ownership – a tenancy will suffice, and “dwelling” covers houses and flats. The act imposes a duty on anyone “taking on work” in connection with the provision of the dwelling to ensure that they perform in a “workmanlike” manner, use proper materials, and that the dwelling is fit for habitation when they have finished. The act covers architects, engineers and other professionals, as well as builders and developers. In those cases the obligation is to work in a professional, rather than workmanlike, manner. The works can be extensions and conversions, as well as new build. An important point is that the claimant must show that the defective work has led to the dwelling being unfit for habitation. The legislation was intended to target serious defects, not minor ones. But the fact that someone is living in a house does not make it inhabitable for the purposes of the act. Nor does it matter that the defect is not yet causing damage. As was said in one case, a house with a faulty roof is still defective, even if it does not rain for several months. Owners will not always have a contract or collateral warranty with the original builder, and are even less likely to have a direct route to claim against professional advisers. Of course, many owners will have the benefit of NHBC or similar cover. However, as with any insurance policy, one cannot always be certain that it will respond to the loss suffered. In any case, the NHBC Buildmark policy does not extend to such matters as any loss in the value of the house, loss of income or business opportunity or damages for distress and inconvenience. In general, the act is a useful weapon in the armoury of all those who are left with a defective dwelling owing to someone else’s failure. The Court of Appeal’s decision will help to ensure that those at fault do not escape liability. The judgment is therefore to be welcomed.


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