Episode 105:
Hello and Welcome to the Part3 with me podcast.
The show that helps part 3 students jump-start into their careers as qualified architects and also provides refresher episodes for practising architects. I am your host Maria Skoutari and this week we will be talking about the Defective Premises Act 1972. Today’s episode meets PC3 of the Part 3 Criteria.
What is the Defective Premises Act 1972 and what does it entail:
In broad terms, the act applies to work carried out in connection with a dwelling, including design work. The act states, ‘a person taking on work in connection with the provision of a dwelling owes a duty to see that the work which they take on is done in a workmanlike or, as the case may be, professional manner, with proper materials and that the work relating to the dwelling will be fit for habitation when completed’. When we say dwelling, we mean the act covers houses, flats, student residences and so on.
From the wording stated in the act, it is essentially stating that it is a strict liability that is owed to anyone acquiring an interest in the dwelling, meaning not just a liability to the original owner but also to any subsequent owners. This doesn’t apply just to consumer clients but to housing developers too.
So to be clear, this duty under the Defective Premises Act applies to all building professionals, including architects, consultants, designers and contractors and the duty can’t be excluded by contract, meaning building professionals have a strict duty to ensure that the dwelling is fit for habitation.
The Act also imposes a duty of care on landlords and developers.
How can a claim and in which circumstances can it be brought against the consultants or landlord/developer from an affected person under the Defective Premises Act:
An affected person can make a court claim for breach of a duty under the Act if:
- they suffer injury or property damage caused by a landlord’s/contractors/developers’ failure to fix relevant defects in a property
- a dwelling is unfit for human habitation due to construction or repair defects
The affect person can then claim for damages.
From previous case law, there was an occurrence where cracking had appeared in a building structure caused by heave due to inadequate foundation depth, the court in this case had strongly argued the consumer's protection under the Defective Premises Act both in the requirements of the building to be suitable for purpose and fit for habitation, which in this case was not, therefore ruling in favour of the consumer.
So under the Act, a landlord can be deemed to be liable for personal injury or property damage caused by relevant defects in the premises. Their duty of care applies where they have an obligation for the maintenance or repair of the premises and applies to all land let. They also have a duty of care to people who might reasonably be expected to be affected by a relevant defect. This includes:
- tenants
- visitors to the property
- members of the tenant's household
Where property damage or injury results from a relevant defect, the affected person can make a claim against the landlord. They might have a claim if the landlord:
- knew about the defect and did not remedy it
- did not do enough to find out about potential defects
A relevant defect is considered to be disrepair which the landlord is responsible for correcting that falls under their obligation for maintenance or repair which may be stated within the tenancy agreement or from implied terms in the agreement. If the landlord fails to rectify a relevant defect that they are aware if or ought to be aware of, then they will be deemed to be in breach of their duty of care and the affected person can raise a court claim against them under the Defective Premises Act.
Apart from the landlord, the affected person might also be able to also make a claim against someone other than a landlord. Where construction or repair defects make a property unfit for habitation, a person might be able to make a claim against a:
- builder
- surveyor
- Or property developer
And a person other than the tenant might also be able to make a claim when a landlord doesn’t repair a relevant defect and they experience injury or property damage. This includes:
- visitors to the property
- members of the tenant's household
- people with a legal interest in the property
So if a dwelling isn’t fit for habitation due to defective work, some of which may include structural issues, damp or black mould, infested with pests, has inadequate drainage and many more, the affected person can then bring a court claim for damages for economic loss and for loss of enjoyment of the premises. A dwelling is deemed to be fit for habitation whereby on completion it is capable of occupation for a reasonable time without the risk to health or safety of the occupants and without undue inconvenience or discomfort to the occupants. It is possible for an economic loss claim to be brought against the architect as well under the Act.
So under the unfit for habitation claim, the Defective Premises Act requires anyone involved in the construction of a dwelling, as mentioned earlier in the episode, to use proper materials, do the work in a professional and workmanlike manner and to make sure the dwelling is fit for human habitation when completed.
This duty covers new build properties, conversions and enlargement of existing buildings as long as a new dwelling is provided. The duty also applier when work is done badly or necessary materials have been missed, such as a damp proof course in a new wall. Under Section 2A of the act, the duty extends to apply to work in relation to any part of a relevant building.
A relevant building is a building consisting of one or more dwellings, and also includes mixed-use properties where only one use is residential. It does not have to be work providing a new dwelling.
This means the duty applies to:
- works to existing dwellings
- work to any part of a relevant dwelling
- And work to buildings containing one or more dwellings
For example, if cladding is applied to an industrial building the impact on fire safety for a residential dwelling in the same building might mean the duty has been breached.
The section 2A duty applies to work completed on or after 28 June 2022. It only applies to work in the course of a business. It does not include work an individual does on their own or someone else's dwelling.
So who has a duty of care and liability towards the affected person under the Defective Premises Act:
The duty extends to anyone engaged in or connected with the work, which can include landlords, builders/contractors, developers, architects and surveyors. In the case of landlords they remain liable for works carried out before the start of letting out a property, key item to highlight is that this applies to tenancies that started on or after 1 January 1974.
Now looking at the contractors liability more specifically, it can be impacted, where construction contracts may contain clauses that limit the contractor's liability to use reasonable skill and care but this liability conflicts with the statutory provision required from the Act, that’s why some JCT contract forms allow for this liability to also be provided where the work relates to a dwelling and therefore falls under the Defective Premise Act. Essentially meaning that under the contract, the contractor will be under the same obligation and liability to use reasonable skill and care and to work in a professional manner with proper materials when the works relate to a dwelling.
What are the time limits for making a claim:
For dwellings completed before 28th June 2022, a claimant has 30 years to make a claim from when the building’s construction was completed. For dwellings completed on or after the 28th June 2022, a claimant has 15 years to make a claim from when the work was completed, this also applies to any refurbishment or remedial work completed on an existing building after 28 June 2022.
This change to the limitation period was introduced with the introduction of the Building Safety Act which has introduced the retrospective extension of liability from 6 years to 30 years for dwellings completed before 28th June 2022. An issue which may arise with this retrospective liability extension period, with regards to architects specifically, is that they may not even hold records going back that far as their liability was either 6 years or 12 depending on the attestation of the contract. If faced with a claim going back longer than this, an architect or other defendant could claim that the retrospective legislation has infringed their right to a fair trial, although it is not yet clear how such a defence might play out or how something like this may be dealt with in court.
The Building Safety Act has also introduced additional measures that could impact architects which is the introduction of a new cause of action for damages suffered as a result of a breach of the Building Regulations known as Section 38 of the Building Act 1984. Prior to Section 38 being brough into force, claims against consultants and contractors for failure to comply with Building Regulations would have relied on breach of contract terms, either expressed or implied, requiring works to be carried out in accordance with the Regulations in force at the time. Now, parties bringing an action have a statutory right to do so, irrespective of contract terms. The limitation period for claims under Section 38 is 15 years and will only apply to projects commenced after June 2022 and also applies to all buildings.
So when a claim is brought under Section 38, the Defective Premises Act or resulting from a building safety risk, the Building Safety Act now allows the court to make a Building Liability Order, which can extend liability to a corporate business associated with a business that undertook the project, such as the parent business of a special purpose vehicle set up for a specific development. While the primary aim of the Building Liability Order is to give building owners or leaseholders a route to redress where the original developer or contractor, such as a specialist cladding sub-contractor, has ceased trading, there could be circumstances where a reconstituted architects’ practice finds itself liable. So if a practice closed down their existing practice in order to draw a line under potential past liabilities and open a new one, the Building Liability Order can still be made against the new practice for the liabilities of the older practice under the Defective Premises Act.
Moving forward, therefore, in the negotiation of contracts for future projects, duty holders should ensure that there are adequate warranty, guarantee and insurance provisions in place to sufficiently apportion the risks associated with the Defective Premises Act and have a sufficient warranty and insurance protection which extends to the duration of the limitation periods under the Act. A Key item to remember is that the Defective Premises Act cannot be contracted out from any contract as it imposes a statutory duty and any relevant person will be liable for any potential future defects which can be proved to be due to the liable party’s negligence.
To sum up what I discussed today:
- The Defective Premises Act 1972 applies to those taking on work for, or in connection with, the provision of a dwelling which provides that liability under the Act could extend to all building professionals, including architects, designers, consultants, developers and contractors. Essentially any person taking on work for the provision of a dwelling owes a duty not only to the original owner but also to every person acquiring an interest in the dwelling such as any subsequent owners
- The work undertaken under the Act to a dwelling is to be done in a workmanlike and professional manner with proper materials and that the work relating to the dwelling will be fit for habitation when completed
- Those who owe a duty, owe it to a broad group of individuals and/or entities and the Act provides anyone with a legal or equitable interest in a dwelling the right to bring a claim.
- The Building Safety Act 2022, has introduced the retrospective extension of liability from 6 years to 30 years for dwellings completed before 28th June 2022 and 15 years for dwellings completed after 28th June 2022. So depending when the dwelling was built, the affected person can raise a claim within the relevant time frame against the landlord, builder, surveyor, architects and so on depending on what the defect is.
- So moving forward, dutyholders should ensure they have adequate warranty, guarantee and insurance provisions in place to address the risks associated with the revised Defective Premises Act.
