Defective Premises Act 1972

Monday 23rd March 2009

One of the key pieces of legislation which should be considered by anyone involved in the construction of properties for habitation is the Defective Premises Act 1972 ("the Act"). The Act applies to a range of people involved in the building and construction of properties, for example architects and builders, so it is important that you are aware of the potential implications of the Act.

Section 1(1) of the Act says that "A person taking on work for or in connection with the provision of a dwelling (whether a dwelling is provided by the erection or the conversion or enlargement of a building) owes a duty... 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 that work, the dwelling will be fit for habitation when completed."

The duty under the Act is owed to the person having the property built and any subsequent owner of the property. However, the right to sue under the Act is generally considered to arise at the date when the dwelling is completed so ordinarily a claim will be 'time-barred' after 6 years of completion. There may still be contractual liability should a claim be brought after that time but that will depend on the terms of the contract for the specific job.

The Act was considered recently in the case of Bole and Van den Haak v (1) Huntsbuild Ltd and (2) Richard Money (T/A Richard Money Associates).

For years it has been a 'grey area' as to what defects would give rise to liability under the Act. The decision of the High Court in the case of Bole and Van den Haak on 13 March 2009 has given useful guidance on this point and the key factors mentioned by that case are:

1. The defects need not be so serious as the render the building in imminent danger of collapse;

2. Whether or not the premises are unfit for habitation is a question which should be answered on the specific facts of each case;

3. It may be that 'defects of quality' i.e. in the workmanship and/or materials used are sufficient to render a building unsuitable for its purpose in which case it will be unfit for habitation;

4. Minor defects will not give rise to liability under the Act unless they render the property dangerous or unsuitable for habitation;

5. The effects of the defect need not be evident on completion of the works;

6. When considering whether the property is fit for habitation the court should look at the effect of the defects as a whole and not at each defect on its own.

His Honour Judge Toulmin found the property in question was unfit for habitation as it was unsuitable for its purpose as there was cracking and the house was built on unstable foundations.

If you have anyqueries arising from this article please contact Stephen Homer at s.homer@ashfords.co.uk

Ashfords LLP is regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances