August EWJ 24 - Flipbook - Page 25
When the Defective Premises Act
May Help... and When it May Not
In the recent case of Vainker & Anor v Marbank Construction Ltd & Ors [2024] EWHC 667
(TCC) the Technology and Construction Court (TCC) highlighted the powerful and potentially helpful action of the Defective Premises Act 1972 (DPA) for claims involving residential dwellings in
certain circumstances, as expanded by the Building Safety Act 2022 (BSA).
The court also considered other interesting points of
note in relation to claims for defective workmanship
and professional negligence.
Net contribution
SCd sought to rely on a net contribution clause
included in the RIBA terms, in relation to its liability
under the DPA.
Background
The factual matrix of the case is complex and longwinded, but to summarise some of the key facts:
The DPA
Section 1(1) of the DPA imposes a duty on those
taking on work in relation to a new dwelling or conversion “to see that the work which he takes on is done
in a workmanlike or, as the case may be, professional
manner, with proper materials and so that as regards
that work the dwelling will be fit for habitation when
completed”.
l The case concerned the construction of a residential
property which was owned by the claimants, Mr and
Mrs Vainker.
l The property was constructed by the first
defendant, Marbank Construction Ltd (Marbank)
who were engaged by Mr and Mrs Vainker under a
JCT Standard Building Contract (2011) dated 26
March 2013 and signed under seal (thereby attracting a 12-year liability period).
So, in order to bring a successful claim under the DPA,
two particular key points are that the dwelling is not
just defective, but is unfit for habitation and the time
at which this is relevant is the time of completion. This
goes further than a claim for breach of contract or
professional negligence. But the DPA has an extended
time period for claims (as amended by the BSA), being
15 years for claims that accrued after 28 June 2022 or
30 years retrospectively for claims that accrued before
28 June 2022.
l The property was designed by the third defendant,
SCd Architects Ltd (SCd) who did not have a signed
contract in place with Mr and Mrs Vainker for its services. However, the court held that on the facts, a simple contract was formed on the basis of the RIBA
standard terms in October 2011 (attracting a 6-year
liability period).
l The works on the property began in 2013 and
practical completion was certified in May 2014.
This extended time period of limitation meant that
while claims against SCd for breach of contract and/or
tort were out of time, a successful claim under the DPA
could still be in time.
l During the build, complaints were made about the
state of the brickwork and water ingress, and these
complaints (together with an extensive snagging list)
continued post-practical completion.
Jefford J highlighted a number of relevant aspects of
previous authorities dealing with defects under the
DPA as relevant to this scenario, namely:
l Proceedings commenced in May 2020. Mr and Mrs
Vainker brought claims against the defendants in respect of defective workmanship and professional negligence by way of claims against both parties for breach
of contract, tort and breach of section 1 of the DPA.
1. In considering whether the property was, at the
time of completion, fit for habitation, it is relevant to
take into account that it was intended to be not only a
new build, but a modern house in design.
Issues
Limitation
As noted above the liability periods for Markbank and
SCd were different, in light of the different contracts
in place between each of them and Mr and Mrs
Vainker. The result was that contractual and tortious
claims against SCd were out of time, therefore much
of the case focused on bringing a claim against SCd
under the DPA.
2. It is unlikely that a defect that is only aesthetic or
inconvenience would render a dwelling unfit for
habitation.
Proportionality
The claim involved consideration of the proportionality of the proposal to replace the defective (and
potentially dangerous) balustrades, as opposed to the
much cheaper option of installing a handrail.
4. It is appropriate to consider the aggregate effect of
defects. However, minor or aesthetic defects which do
not contribute and are not capable of contributing to,
unfitness for habitation cannot be relevant in this
consideration.
EXPERT WITNESS JOURNAL
3. There may be a breach of the duty in respect of a
defect which means that the condition of the dwelling
is likely to deteriorate over time and render the
dwelling unfit for habitation when it does so. In that
case the dwelling can be said to be unfit for habitation
at the time of completion.
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AUGUST 2024
