Following the Grenfell Tower Disaster in 2017, and after a long consultation, the government has passed the Building Safety Act 2022 to force more accountability within the property development sector. The Building Safety Act received Royal Assent on 28 April 2022. The new limitation periods came into force on 28 June 2022.
This new legislation has enhanced the right to hold to account anyone connected with the building of new premises.
Before covering off the impact of the next legislation, it is important to know what obligations are currently in place. What are the legal responsibilities of constructors and owners under the Defective Premises Act 1972? Who else can be held responsible?
Corey Evans, Paralegal at DAS Law, has the answers to all these questions and more…
What are the safety obligations under the Defective Premises Act 1972?
Under Section 1 of the Defective Premises Act 1972, all developers/trades that carry out work in connection with the provision of a new dwelling must do the work in a workmanlike, professional manner, with proper materials to ensure that the dwelling is fit for habitation.
Who can be held responsible under Section 1 of the Defective Premises Act 1972?
The Duty under Section 1 applies to work carried out on or after 1 January 1974 and extends to anyone connected with the work. This includes landlords, builders, architects, surveyors, and any subcontractors. It has been held that the duty does not extend to inspectors who are ensuring compliance with building regulations.
What is meant by provision of a dwelling?
Provision of a dwelling extends to newly built properties, conversions, and enlargement of existing buildings if a new dwelling is provided.
What is meant by the term fit for habitation?
The term is not defined in the Defective Premises Act 1972, however case law has suggested the meaning as safety for occupation, sufficient water supply, free from infestation by bugs/pests, adequate drainage and free from infection. This is not an exhaustive list and will be case specific dependant on whether the defect renders the accommodation unfit for habitation.
Are there any defences?
The person who carried out the work – or relates to the work – must ensure the work has been done properly. They will not be able to argue that it was reasonable to believe the work was adequate.
What is the extent of the duty?
The duty is owed to:
- The person for whom the property was provided.
- Subsequent tenants and owners.
- Anyone else who has a legal or equitable interest in the property.
The duty also applies to omissions when carrying out work for example failing to include damp course in a newly built wall or if that work has been carried out badly.
Are extension works or refurbishment covered?
In the case of Jenson v Faux [2011] Jenson purchased a freehold property in 2007. The basement had been converted in 2003 by the previous owner.
Jenson suffered loss because of damage caused by flooding due to problems concerning waterproofing applied to the basement. Jenson alleged that the waterproofing applied in the basement was defective as the basement was subject to repeated water penetration.
The previous owner issued an application for summary judgement on the issue of no real prospect of success as S.1 of the Defective Premises Act 1972 only applies to the provision of a new dwelling.
The Court of Appeal held that The Act did not apply to improvements which did not sufficiently change the character of the property to amount to a new dwelling.
Section 1 is only directed to the provision of a new dwelling. For the duty to apply to extension works or refurbishment carried out on an existing building, the work must be so substantial as to constitute the ’provision of a new dwelling’. The Court held that the extent and cost of the works would not be conclusive. There might be cases where a small amount of work would be required to create a separate dwelling which would fall within the definition of section 1, however there could be very extensive works to a house which would not change its identity as demonstrated in the case of Jenson v Faux [2011].
My property was built before the Safety Building Act 2022, has the act brought in extra protection for existing buildings?
The Defective Premises Act 1972 was problematic as the limitation period was previously six years. The Safety Building Act 2022 has extended the limitation period under the Defective Premises Act and thus providing additional protection.
The limitation period for prospective (claims after the Bill becomes law) claims under sections 1 and 2A of the Defective Premises Act 1972 will be extended from six to 15 years; and
The limitation period for retrospective (claims before the Bill becomes law) claims under section 1 of the Defective Premises Act 1972 will be extended from six to 30 years.
To what extent are landlords accountable?
Under section 4 of the Defective Premises Act 1972, the landlord’s duty is owed to:
- the tenant
- members of the tenant’s household, and
- visitors to the property
The duty is triggered if the landlord ’knows or ought to know of the relevant defect’.
Whether a landlord is under a duty to implement a system of regular inspections of the premises to comply with the section 4 duty is a question of fact and must be determined considering all the circumstances of the individual case. This question would arise when considering whether the landlord ought to have known of the defect.
This is a wider obligation than Section 11 of the Landlord and Tenant Act 1985. Section 11 is a duty imposed on the landlord to must keep in repair the structure and exterior of the dwelling house and keep in repair and proper working order the installations in the dwelling house for the supply of water, gas, electricity, sanitation, space heating, and heating water.
A landlord is not liable under Section 11 to carry out any repair until they have been put on notice of the need for repair and have failed to carry out the repair within a reasonable time thereafter. Whereas under Section 4 of the Defective Premises Act 1972 a landlord’s duty may be triggered regardless of whether the occupier had informed the landlord of the defect.
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Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.