Extended Liability Under The Defective Premises Act 1972
6th November 2023
The Building Safety Act 2022 received Royal Assent on 28 April 2022, marking a monumental shift in the regulatory landscape for building safety in the UK. This legislation has profound implications for the liability of Designers and Contractors. One of the key aspects of the new legislation is the extension of the Defective Premises Act 1972, which became effective on 28 June 2022.
The Defective Premises Act 1972 (DPA) in Brief
The DPA provides legal rights to owners and leaseholders of dwellings that are deemed “unfit for habitation”. They can legally pursue anyone involved in the design and construction of such dwellings. This applies to consultants, contractors, developers and essentially any party engaged in the design or construction process.
Before the Building Safety Act 2022, the DPA applied only to new dwellings with a liability period of six years post-construction. This has changed dramatically.
What Is The Duty?
The Duty under Section 1(1) can be broken down into three separate elements:
- The works must be carried out in a workmanlike manner (where physically being carried out) or a professional manner (where the work is more to do with design);
- The works must be carried out with proper materials;
- The works must leave the dwelling fit for human occupation when completed.
Importantly, a dwelling is ‘unfit for human habitation’ if it cannot be occupied without risks to the health and safety of occupants, or creates undue inconvenience or discomfort to occupants, even if the defect is not immediately apparent but manifests at a later date.
What Could Be Determined As Unfit For Occupation?
Ultimately it will be for the Courts to determine, but The Homes (Fitness for Human Habitation) Act 2018 gives a good indication of the sort of defects that could be covered.
These include unsafe or unsanitary conditions, such as damp, poor ventilation and blocked drains – important reasons to make sure that you test, and commission drains and ventilation systems at completion!
As well as these specific factors, falling foul of any of the Housing Health and Safety (England) Regulations can lead to a property being deemed unfit for human habitation.
Scope of Application: The Act, through a new Section 2A in the DPA, broadens the ‘fit for habitation’ obligation to also cover repairs, extensions, or refurbishments. This means that even small projects such as bathroom refurbishments, loft conversions and single storey extensions are now covered by the Act – not just new dwellings.
Extended Period: For future works, DPA liability has been extended from 6 years to 15 years post-completion. For projects already completed, this has been retrospectively extended to a staggering 30 years.
Duty & Liability: Consultants, Architects, Designers, Developers and Contractors all share responsibility under the revised DPA. They owe a duty to ensure that the property in question is habitable upon completion.
By amending the Defective Premises Act 1972, the Building Safety Act 2022 has ushered in an era of heightened responsibility for all stakeholders in the construction domain. Contractors and other Duty Holders need to be acutely aware of their extended obligations and potential liabilities, ideally obtaining robust warranties, guarantees and insurances to manage risks linked with the revised DPA. Adequate preparation, comprehensive documentation and commissioning are more crucial than ever.
Some Building Inspectors haven’t in the past insisted that you provide records, test photographs and documentation. In doing so, they open you up to future claims and we expect that ‘no win no fee’ solicitors will soon offer services to homeowners seeking compensation for defects that become apparent several years after the works complete.
Don’t take that risk – appoint Wilkinson CC today.
Building Regulations are seen as a set of rules to be followed, which, yes, essentially, that is exactly what they are, but building regulations don’t need to constrict architects.
One of the most frequently asked questions we get is “Why are you asking for ventilation testing?” Well, as our previous blog showed, ventilation is essential to ensure the comfort and health of building occupants.