Owners and developers have 30 years to bring a claim for defective premises
- AuthorPeter Allen
Some properties, mainly blocks of flats, have been built that are not fit for habitation. Defective cladding is a prime example of an issue that causes this and has been in the spotlight since the Grenfell Tower disaster. Many blocks of flats have had the cladding changed but there are still many that have not.
The issue is often who will pay for those remedial works.
Under the Defective Premises Act 1972 (“DPA”) there is a duty imposed on those involved in designing and building dwellings to build them properly. They have to work in a professional manner, use proper materials and see that the completed dwelling is fit for habitation.
Changes were brought into the DPA by the Building Safety Act 2022 (“BSA”). The DPA originally applied only to a new dwelling or a conversion of a building from non-residential to residential use.
However, this has been extended to works on an existing dwelling. This means, as an example, that an extension to an existing dwelling will be covered by the Act.
The limitation period was also changed from 6 years. The limitation period is the time period in which court proceedings have to be issued. If they are not issued within that time period then the claim can be debarred by the court and not proceed.
The issue is that when carrying out construction work, defects are not always obvious and only appear many years later.
Claims period extended to 30 years
The BSA extended the limitation period for existing claims that arose before 28 June 2022 to 30 years. This meant that at the time the change came into force, claims that arose after 28 June 1992 were still within the limitation period.
This change gave an opportunity to flat owners and developers to commence claims relating to defective cladding and other issues, which may well have been outside of the limitation period.
Another issue with such claims would be that many contractors who had carried out the construction work including installing cladding, would no longer be in business and therefore action could not be taken against them. However, the consultants who had designed or specified the buildings, including the cladding, would likely be in existence and would have insurance to cover such claims.
In the first reported case dealing with this new limitation period (URS Corporation Ltd v BDW Trading Ltd) the Court of Appeal held that the developer had a valid cause of action in tort against the design consultant in respect of two residential tower blocks and also that it could take advantage of the new 30-year retrospective limitation period.
It also held that the cost of rectification works could be recoverable even if the developer did not have liability to the current owners of the flats. It has therefore been held that the developer is entitled to take action to seek to recover the costs of remedial work and that the claims would be within the new 30-year limitation period.
This may well give many other developers and flat owners an opportunity to recover the cost of remedial work to their flats. There are likely to be many such claims. If you have such a claim, then Birkett Long would be able to advise on this.
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