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By J
15/04/2011

The (Caveat) Emptor strikes back

“All his life has he looked away… to the future, to the horizon. Never his mind on where he was. Hmm? What he was doing. Hmph. Adventure. Heh. Excitement. Heh. A Jedi craves not these things. You are reckless” – Yoda

Which brings us nicely to (1) Jenson (2) Jenson v Faux [2011] EWCA Civ 423 and a quite fantastically important case on the Defective Premises Act 1972 and how to avoid adventure and excitement.

By s.1(1), 1972 Act, a person who does work “for or in connection with the provision of a dwelling” owes a duty to ensure that the work is done in a workmanlike or professional manner. That duty is owed both to the original contractor and any subsequent purchaser of the dwelling.

In this case, we’re dealing with a property in Battersea. I imagine it’s quite a nice property, as well. The claimants were the current owners, having purchased in 2007. Back in 2003, their predecessor in title had engaged the defendant to do various works to the property. The most important of these (for present purposes) was works to the basement. The old coal cellar was extended and turned into a veritable funfest of a cinema room, gym, washroom, etc. Unfortunately, something wasn’t right and the basement suffered from water penetration.

The claimants sued the defendant under s.1, 1972 Act. The defendant went for summary judgment. His argument, based on an unreported (and apparently largely unknown) case of Saigol v Cranley Mansions CA, July6, 1985, was that the works were not in connection with the “provision” of a dwelling and that the mere enlargement of an existing dwelling did not fall within the scope of s.1, 1972 Act.

The High Court Judge dismissed the application, and the defendant sucessfully appealed. Notwithstanding that no-one (not even the editors of Clerk & Lindsell) had ever heard of Saigol, it was agreed to be binding on the court. It could not be said that the works were such as to create a new dwelling or to change the character of the property. It went from being a house to being a slightly larger house. It followed that summary judgment should be entered.

The answer, as the Court of Appeal indicate at the end of the judgment, is for purchasers to remember the rule of Caveat Emptor and get a survey done before they purchase. Yoda would clearly agree. It takes all the excitement and adventure out of house buying.

(although, remarkably, the claimants in this case apparently had got a survey. And still bought the property. Perhaps they were under the influence of the dark side?)

 

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

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