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The Defective Premises Act 1972

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Posted on 12 November 2010

The Defective Premises Act 1972 (“the Act”) imposes important obligations on both contractors and consultants involved in the design and construction of a dwelling. A dwelling can include a house or flat, and the Act applies both to new build dwellings as well as conversions or enlargements of dwellings, but does not apply to repairs. 

The Act imposes some onerous obligations. It provides that anyone with a legal or equitable interest in a dwelling can bring a claim against anyone involved in the design or construction of that dwelling where such works or services have resulted in the property not being fit for habitation. 

Normally professionals involved in a construction project only have to act with “reasonable skill and care”. However where the Act applies, the standard of performance is much higher and, in such circumstances, it is no defence that the professional acted with reasonable skill and care. 

Considering the significance of the obligations imposed by the Act, there has been surprisingly little case law on the subject. However the Court of Appeal has recently given an important decision which updates the law in this area. 

The case of Bole v Huntsbuild Ltd concerned homeowners who had brought a claim against their contractor relating to the construction of their new house. The contractor had engaged a structural engineer to advise on and design the foundations. After the house had been completed, extensive cracking appeared which was found to be due to defects in the design of the foundations. Unsurprisingly the homeowners began proceedings against the contractor and the engineer. 

The Court of Appeal laid down important guidelines for determining whether a dwelling is unfit for habitation. Important among these was that the duration of the required remedial works can be a relevant fact. In addition, it held that the courts are entitled to take account of the overall effect of the defects, rather than approaching the issue on a defect by defect analysis. The court upheld the decision that the property was unfit for habitation and that a piled raft solution was required.

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