If defects appear in a building after completion, the developer or contractor may be liable to the owners of the building, in contract or negligence, for the cost of remedying that work. However, if the building is a dwelling, then there is a further potential liability under the DPA*.
The DPA imposes a duty on a person taking on work for, or in connection with, the provision of a dwelling to ensure that the work is done:
- in a workmanlike or professional manner
- with proper materials
- so that the dwelling will be fit for habitation when completed.
The duty is owed to every person who acquires an interest in the building. As such, a developer or contractor may be liable to successors in title to the original buyer of the dwelling.
The key to establishing liability under the DPA is to show that the dwelling is unfit for habitation. The problem is that this phrase is open to a wide range of interpretation, meaning that there is a great deal of uncertainty as to what defects will be caught by the DPA.
A recent TCC decision** has tried to bring some clarity to the situation by confirming that a dwelling will be ‘fit for habitation’, within the meaning of the DPA, if it is capable of occupation for a reasonable time without risk to the health and safety of the occupants or undue inconvenience or discomfort to them.
The TCC also made the following points, which may mean that the range of defects that render a dwelling unfit for habitation is wider than previously thought:
- the effect of defects as a whole, rather than individually, should be considered when deciding whether the dwelling is unfit for habitation
- the defect does not have to be apparent on completion of the property
- the dwelling must be fit for habitation for all classes of people, including children and those with medical conditions
- just because a property has been let, does not mean that it is fit for habitation.
In summary, developers and contractors should be aware that the ambit of the DPA is wider than they might previously have thought.
For more information, email firstname.lastname@example.org.
*Section 1 of the Defective Premises Act 1972
**Rendlesham Estates Plc and others v. Barr Limited  EWHC 3968 (TCC)