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Defective Premises Act: testing architects' quality thresholds

legal matters

The Defective Premises Act 1972 has had a chequered history. The Act, which imposes duties upon those taking on work in connection with the provision of a dwelling, came into force in 1974. For a long time no one took a blind bit of notice of it. Shortly after its enactment, the House of Lords decided, in Anns v Merton (1978), that occupiers of buildings, including dwellings, had a claim in tort against those responsible for the design and construction. If their dwelling turned out to be defective, they could claim the cost of putting it right from all involved. So there was no need to rummage about on the bookshelves to look up the provisions of the Defective Premises Act.

By the end of the 1980s, the House of Lords was beginning to reflect upon the wisdom of its earlier decision. They had no qualms about leaving the owners or occupiers of commercial property without a tortious remedy against the producers of defective buildings. They could take steps to protect themselves by creating a contractual link by means of the collateral warranty.

But what about private individuals who found that their homes were falling apart? How would they be able to recover the cost of repairing their property if they had no contract and could not claim in tort?

Before they gave judgment in D&F Estates v Church Commissioners (1989), their lordships must have rummaged about on their own bookshelves and discovered the dust-covered text of the Act. When giving judgment, they reminded everyone of its existence and of the statutory remedy it gave to the owners of defective dwellings. After refreshing everyone's memory about the Act, they had no reservations about pulling the tortious rug out from under the feet of homeowners in Murphy v Brentwood (1991).

But the renaissance of the Act was not straightforward. Originally it was intended to complement the National House Building Council's (NHBC) scheme, so that properties covered by the NHBC's Buildmark were excluded from the scope of the Act. From about 1979, however, the NHBC tired of having its standards approved by the government and the protection of the legislation was available to all householders irrespective of whether they were covered by Buildmark. This fact was not widely published at the time, and for a long time owners of NHBCcovered properties were erroneously told they had no claim under the Defective Premises Act.

The Act applies to builders and architects alike.

It requires those who take on work in connection with the provision of a dwelling to do that work in a workmanlike or professional manner. The obligation is to provide proper materials, so that as regards the work taken on, the dwelling will be fit for habitation. In Thompson v Clive Alexander & Partners (1992), the scope of the Act was further limited when the court held that it is not sufficient for claimants to complain of bad or unprofessional work, they had to prove the place was uninhabitable.

Recently, debate has centred on what 'provision of a dwelling' means. It obviously excludes commercial properties - the building has to be used or capable of being used as a residence. The Act offers further assistance by explaining that a dwelling can be provided by 'the erection or by the conversion or enlargement of a building'. The emphasis here is on the provision of a new dwelling.

Are works to existing dwellings, such as refurbishment, conversion or extension works, covered? In Jacobs v Morton & Partners (1994), the claimant sued the engineer, who had advised on remedial works to stop structural movement to a semi-detached house in Middlesex. The judge held that the claimant was not covered by the Act since it applied only to works in connection with the creation of a new dwelling and not to rectification works to an existing building.

Despite these various inroads into the scope of the Defective Premises Act, if architects were to read the Act they would discover that they owe owners of newly created dwellings - irrespective of NHBC cover - a duty to ensure that they do a professional job and produce something that can be lived in.

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