Beware broken promises
The Defective Premises Act may not apply to negligent building work in existing homes. Emma Wiltshire, senior associate at Clarke Willmott, explains
The Defective Premises Act potentially imposes on contractors and sub-contractors a duty of care to every person who acquires an interest in a home they have worked on. If on completion the home is not fit for habitation because there are defects in design or workmanship those responsible will be in breach of their duty under the act to carry out that design/work in a workman-like or professional manner and with proper materials.
The case of Jenson v Faux in April of this year means that social landlords could now be denied this protection for such negligent works.
Making a claim
Claims under the DPA can be brought up to six years from the time when the dwelling was completed. The six-year period will restart from the date of completion of any remediation works, but only in relation to the defect remedied. This is important because, if there are ongoing defects which take some time to rectify, the period during which a claim can be brought under the DPA for those defects could extend beyond the period of any National House Building Council cover available.
The statutory duty can apply to ‘conversions’ and ‘enlargements’ as well as building new dwellings, but it has not been clear exactly what this would constitute as there are no definitions in the DPA.
However, the case of Jenson v Faux considered whether extension/refurbishment works could constitute ‘provision of a dwelling’ for the purposes of the DPA. The test applied was whether the identity of the refurbished and extended dwelling was ‘wholly different’ from the old dwelling.
It was held that no duty was owed under the DPA in respect of the improvements to the property (an existing coal cellar was converted to a basement) because, on the facts, the works had not sufficiently changed the character of the property so as to amount to a new dwelling.
This decision could be unfair for social landlords (and consequently their tenants) which have organised the construction of extensive and high-value works to an existing dwelling - such as refurbishment work to achieve the decent homes standard, maintenance works to existing housing association stock or retrofit works. According to the judgement in the case, these works are unlikely to fall within the DPA because this type of work will probably not make the dwelling wholly different from before (so as to amount to a new dwelling).
Why should housing associations and their tenants be denied a remedy under the DPA against negligent designers simply because the works carried out were refurbishments to an existing dwelling rather than a new build? Unless the legislation is changed, unfortunately this is the effect of Jenson v Faux.