The Defective Premises Act: A Consideration of Recent Case Law. Phil Parkinson, Legal Director at specialist property solicitors JB Leitch, considers the interpretation and use of the Defective Premises Act (DPA) 1972 to seek a remedy in cases relating to defects and suitably safe habitation.

Under the Defective Premises Act 1972 (DPA 1972), any entity who takes on work for or in connection with the provision of a dwelling owes a duty to all interested parties to ensure that the work is done in a professional manner, with proper materials so that the dwelling is fit for human habitation. The duty is owed by all and any entity taking on such work, or arranging for it to be undertaken, and those who prescribed how it was to be created, for example architects or engineers. An entity will be treated as having discharged his duty under DPA 1972 provided that he has done the work properly and in accordance with the owner’s instructions.

Unfit for Habitation

A breach of DPA 1972 arises only where the dwelling is unfit for habitation, and not just defective. It is for the claimant in any proceedings to prove that a particular defect makes the dwelling unfit for habitation. In certain circumstances, such as a flat conversion, it can be difficult to prove that a specific defect has been caused by actual work done but liability can arise due to a failure to carry out necessary works.

In considering whether a dwelling is unfit for habitation the Court of Appeal, in Bole v Huntsbuild [2009] EWCA Civ 1146 has provided helpful guidance as to how ‘fit for habitation’ will be interpreted by the courts, as follows:

• it is not necessary for a dwelling to be in imminent danger of collapse for it to be found unfit.
• the courts will look at the defects as a whole in making the assessment.
• where there is a fundamental defect to the structure of the dwelling, the time taken to fix the defect is material.
• the phrase ‘unsuitable for purpose’ is interchangeable with ‘unfit for habitation’.

Furthermore, in Rendlesham v Barr [2014] EWHC 3968 (TCC), the Court confirmed that there could be a breach of the DPA 1972 if, when a building was completed, there were defects that, if left un-repaired, would have the result that the structural integrity of part of the building was subject to a risk of failure at some time during the design life of the building. It was not necessary to prove that the risk was such that significant damage was likely. Also, whether or not an apartment was fit for habitation was to be judged by reference to the standards current at the time when it was built.

Liability Cannot be Excluded or Restricted

The duty under DPA 1972 cannot be excluded or restricted and is additional to any duty otherwise owed. Further, DPA 1972 provides that any duty of care owed due to work including construction, repair, maintenance or demolition, to people who might reasonably be expected to be affected by the defects in the state of the premises, is not abated by the subsequent disposal of the premises by the person who owed the duty.

As, perhaps to be expected, many cases in this area have been before the Courts and Tribunals and a raft or decisions have been delivered. An analysis of a select few cases is set out below.

A Flat With Defective Cladding Was a Dwelling

In Fish Homes v HMRC [2020] UKFTT 00180 (TC) the First-tier Tax Tribunal (FTT) held that a flat with defective cladding was suitable for use as a dwelling for the purposes of the 15% rate of Stamp Duty Land Tax (SDLT). This provides useful guidance on the meaning of ‘suitable for use as a dwelling’ and confirms that a defect that makes it dangerous to use a property could render a dwelling un-suitable for use as a dwelling. On the facts of this case, the failure to comply with building regulations did not render the flat unsuitable for use as a dwelling.

Limitation and Concealment in Flammable Cladding Dispute

RG Securities (No 2) Ltd v Allianz Global Corporate and Specialty CE and others [2020] EWHC 1646 (TCC) related to proceedings to recover the costs of replacing flammable cladding on a high-rise residential building and the Court dismissed an application for summary judgment, which had asserted that the claim was statute barred.

The claimant’s claim that the lack of Building Regulations approval had been concealed from it, meaning that the limitation period did not commence until it had discovered the concealment, had a realistic prospect of success.

The key issue in this case was the operation of section 32(1)(b) of the Limitation Act 1980, which provides that, where a fact relevant to the claimant’s right of action is deliberately concealed from the claimant by the defendant, the limitation period does not start until the claimant discovers the concealment. In essence, the concealment re-started the clock.

The case is also of interest due to the underlying claim—a freeholder seeking to re-cover the substantial costs of replacing flammable cladding on a high-rise residential building. Who is ultimately responsible for the costs of fire safety remediation works on buildings across the country following the Grenfell Tower fire, in particular high-rise residential buildings, continues to be an area of dispute.

Defective Premises Act, Fire Safety and Limitation

In Sportcity 4 Management Ltd and other companies v Countryside Properties (UK) Ltd [2020] EWHC 1591 (TCC) the court considered the limitation provisions expressly contained in the DPA 1972, again finding that the plain meaning could not be avoided. 

The DPA 1972 allows for two or more limitation periods, meaning that a claim targeting defective construction of a building may be time-barred even if later remedial works may be actionable. The developer had argued that, as the claim was based on failings in the original construction, under DPA 1972, s 1(5) the cause of action was deemed to have accrued at the time when the dwelling was completed in 2010, so that the claim was time-barred. Arguments that the works carried out in 2014 and 2017 extended the limitation period were dismissed.

As can be inferred from the recent case law above, this area of law is moving at a relatively rapid pace and will continue to do so due to the increasing use of the DPA 1972 to seek a remedy in cases relating to defects and, specifically, to cladding and external wall system renewal.

You can contact the JB Leitch team via their website or by calling 0151 708 2250.