Defective Premises Act

On 13 April 2011 in the case of Jensen and another v Faux the Court of Appeal overturned a decision of the TCC and held that the Defective Premises Act 1972 (the "Act") only applies to "new dwellings" and not to an existing dwelling that has undergone extensive remodelling and refurbishment works but which do not make it a dwelling "wholly different from the old".

The subject of the appeal was what constitutes works that make a dwelling wholly different so as to be a new dwelling for the purposes of section 1(1) of the Act, which states that "a person taking on work for or in connection with the provision of a dwelling…owes a duty to see that the work which he takes on is done in a workmanlike or professional manner so that the dwelling will be fit for habitation when completed". Whilst most builders will be familiar with this duty, this decision is important in determining whether a particular set of works would constitute making an existing dwelling a "new dwelling"  and so subject to the duty under section 1(1) of the Act.

The facts of this case were that the Jensens purchased the property in 2007, and in 2003 the seller had employed Mr Faux to carry out extensive refurbishment works which included converting the cellar into a large entertainment room. The Jensens sued Mr Faux under the Act on the basis that the works carried out to the house were defective as the basement suffered from water penetration.

In a denial of the works being defective, Mr Faux applied to the TCC for summary judgment on the basis that the Act only applies to a new dwelling, which this property was not. At first instance the judge dismissed Mr Faux's appeal on the grounds that the extent of the refurbishment works had rendered the dwelling different to the identity of the original dwelling, making it a new dwelling and subject to the duty imposed by the Act.

Mr Faux appealed and in coming to its decision the Court of Appeal made reference to the previous decision of Saigol v Cranley Mansions (6 July 1985) which held that "one can envisage a case in which the works to an existing dwelling were so extensive as to justify the conclusion that they had provided a new dwelling, the identity of which was wholly different from the old: but that is not the case here". Similarly, in Jacobs v Morton (1994) it was held that "the phrase "provision of a dwelling" connotes the creation of a new building. It does not include rectification of an existing dwelling". The Court of Appeal stated that it was bound by the decision in Saigol and subsequently the works in this case had not created a dwelling wholly different from the original.

It was further stated that whilst it would be possible for some extensive refurbishment works to change the identity of a dwelling, the works to the Jensen property were not substantial enough to satisfy this requirement. Interestingly, it was held that the size and cost of the works are not decisive factors in that a small amount of works creating a separate one floor dwelling would fall under the Act, whereas expensive and substantial renovations including extensions to and conversion of a property might not.

It is important for construction professionals to take note of this decision, and builders should therefore be aware from the outset of a project whether such works would fall under the ambit of the section1(1) duty, should they face an allegation of defective works in the future. However, the fact that the Court of Appeal has placed some restrictions on the applicability of the duty under the Act will be welcomed by those regularly carrying out remodelling and refurbishment works to existing dwellings.

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.