New insights from the court on the Defective Premises Act 1972

There is likely to be increased interest in claims under the Defective Premises Act 1972 (DPA), following the extended limitation periods offered by the Building Safety Act 2022 (BSA). The DPA imposes duties on those taking on work “in connection with the provision of a dwelling” to use proper materials and to see that the dwelling is fit for habitation. The recent case of Vainker and another v Marbank Construction Ltd and Others¹ is a revealing and much-needed insight into how the courts will interpret the DPA.

Background

The case was brought by a homeowner against its architect and contractor, in respect of a new build, known as The Croft at Walpole Gardens, Twickenham. It was intended to be the homeowners’ dream retirement property. The case was considered by Mrs Justice Jefford in the TCC.

Key findings and reminders

1. Limitation period runs from completion of the dwelling

These proceedings commenced on 4 May 2020, before the extended limitation periods under the BSA came into effect. This meant that there was only a 6 year limitation period to make a claim under the DPA. Claims under contract and tort had expired, as the breaches occurred before practical completion on 15 May 2014. However, proceedings were not time-barred under the DPA, where the limitation runs from the date of completion of the dwelling.

2. No restriction or limitation of liability permitted

The damage was caused by both the contractor and architect. Usually full recovery can be made against any party that contributed to the damage (regardless of how small their contribution is). This is reversed if the defaulting party has a net contribution clause in their contract, which limits liability to the proportion of damage that it actually caused.

The architect had the benefit of a net contribution clause within the terms of its RIBA Architect’s Appointment and sought to rely upon this. However, this was rejected by the court, as it is not possible to limit liability for a DPA claim. The DPA states that, “Any term of an agreement which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of any of the provisions of this Act, or any liability arising by virtue of this provision, shall be void” (s.6(3)).

3. What “fit for habitation” means in context

The DPA requires that work in the provision of a dwelling must be “fit for habitation” when completed (s.1). Referring to previous authority in Rendlesham Estates plc v Barr Ltd², Mrs Justice Jefford determined that “fit for habitation” should take into account that it was intended to be a new build house and modern in design. This was relevant for the following reasons:

• although this does not extend to defects that are purely aesthetic or inconvenient, it does take into consideration whether the defect would render the dwelling to deteriorate more quickly than expected and render the dwelling unfit for habitation when it does so
• a risk of failure within the design life of the building of a structural element of the welling which exists at the date of completion (whether known or unknown) may make the dwelling unfit for habitation
• the aggregate effect of defects is significant (which might be minor or aesthetic on their own)
• serious inconvenience which is not transient and evidence of the need to vacate the dwelling in order to carry out the necessary remediation work is also pertinent to the question of whether a dwelling is fit for habitation

4. Remediation work required in a “professional manner”
Glass balustrades were installed throughout the house, using glass that was toughened rather than toughened and laminated. Using toughened glass without a handrail is non-compliant with Building Regulations. The judge decided that this rendered the dwelling unfit for habitation, as if the glass is damaged or fails there is nothing to hold onto or to inhibit a fall.

Although the inclusion of a handrail would have mitigated this risk and complied with Building Regulations, this was not a sufficient remedy. The judge decided that, “The damages should more naturally reflect the failure to see that the work was done in a professional manner”. It was therefore decided that replacing the glass in its entirety was a method of remediation that was more akin to the professional manner in which the works should have been carried out and more appropriate (even when the installation of the handrail would have rendered the works safe).

Key takeaways

1. as well as the extended limitation periods offered by the BSA, it is interesting to note how DPA claims can sometimes compare favourably to contractual and tortious claims, due to the potential for the limitation period to run from a later date (i.e. the date of completion rather than the date of breach)

2. this case is a useful reminder that it is not possible to contractually limit or exclude liability under the DPA

3. recent commentary on the DPA has led to it being associated with defects that are unsafe. However, the statutory provision that “work…done in a workmanlike…or professional manner.. so that…the dwelling will be fit for habitation” is a wider requirement and will be interpreted as such by the courts

[1]  [2024] EWHC 667 (TCC)
[2]   [2014] EWHC 3968 (TCC)