The Defective Premises Act 1972 is a useful weapon in the home buyer’s armoury

Section 1 of the Defective Premises Act 1972 states that a person taking on work for or in connection with the provision of a dwelling owes a duty to every person who acquires an interest in the dwelling to carry out the work in a workmanlike manner, with proper materials, so that it is fit for habitation when completed. Rendlesham Estates plc v Barr Ltd [2014] EWHC 3968 (TCC); [2014] PLSCS 339 concerned two apartment blocks in Leeds. The buyers were beset by problems as soon as they moved in; water began leaking into various parts of the buildings and mould and condensation began to cause further problems. To make matters worse, the developer went into administration, leaving the owners of the apartments to pursue a claim against the building contractor based on section 1. The court rejected the suggestion that the blocks themselves constituted a dwelling or dwellings within the meaning of the statute. However, the judge decided that the building contractor did owe the claimants a duty in relation to the structural and common parts of the blocks because it had carried out the work “in connection with the provision of a dwelling”. The work was connected to the provision of the apartments because their owners had an interest in and financial responsibility for the maintenance and repair of the common parts. The judge considered that for a dwelling to be fit for habitation within the meaning of the statute, it must, on completion, be capable of occupation for a reasonable time without risk to the health or safety of the occupants – and, in addition, without undue inconvenience or discomfort to them. Where a dwelling is, or is part of, a newly constructed building, what is a reasonable time will be a question of fact and may in some cases be as long as the design life of the building. When considering whether or not an apartment is fit for habitation, its condition had to be considered at the date when the work was completed (which was, in the judge’s view, at the end of any relevant defects liability period). The judge also considered that a dwelling should be fit for habitation by all the classes of people who might reasonably be expected to occupy it, including, for example, pregnant women, children and babies. A risk of failure within the design life of a structural element of a dwelling (or of the building of which the dwelling forms part) which exists at the date of completion may make the dwelling unfit for habitation. Serious inconvenience, which is not transient, may also make a dwelling unfit for habitation. For example, a lift in a tower block that was poorly installed and frequently broke down could make apartments on the higher floors unfit for habitation. In addition, a defect may render an apartment unfit for habitation despite the fact that the owner and builder did not know about it. Each case will turn on its own facts. However, this claim was successful. Interestingly, the judge rejected the contractor’s argument that the leaseholders’ losses in respect of the common parts should be limited to the additional service charge that they would each have to bear to cover the cost of the remedial work; this would have left them with a shortfall because some of the leaseholders were not parties to the litigation and some apartments remained unsold. The court would order the contractor to make one payment to be held to fund the repairs.   Allyson Colby is a property law consultant