Build defects and fitness for habitation

broken window

Rendlesham Estates Plc & Ors v Barr Ltd (2014) EWHC 3968 (TCC)

Well, we did write this one up at the time (our report here), but I don’t think we quite appreciated the general significance of the case. We certainly didn’t anticipate that it might subsequently become otherwise significant because of a change in the law on tenancies. So, a few additional notes follow (though everything that is said in our previous post about the very dubious approach to general damages stands).

Why return to this case? Well, firstly because I have since found myself doing a lot of section 1 Defective Premises Act 1972 cases on new build properties (particularly housing association shared ownership properties), but secondly because the issue in a section 1 DPA case is ‘fitness for habitation’, and that has gained a new relevance with the passing of the Homes (Fitness for Human Habitation) Act 2018.

Section 1 Defective Premises Act 1972 provides:

“A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty-

(a) if the dwelling is provided to the order of any person, to that person; and

(b) without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling;

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.”

Note that last line of the test – ‘so that as regards that work, the dwelling will be fit for habitation’. As there are very few judgments on the old section 8 Landlord and Tenant Act 1985 ‘fitness’ test, cases on the very similar wording of s.1 DPA will quite possibly be relevant for the new s.9A and s.10 LTA 1985 (as amended by the Homes (Fitness for Human Habitation) Act 2018), once it comes into force on 20 March 2019.

So, to highlight a few key sections of the judgment…

On the definition of unfitness, the judgment cites Bole v Huntsbuild (2009) EWHC 483 (TCC) at 38:

“i) The finding of unfitness for habitation when built is a matter of fact in each case.
ii) Unfitness for habitation extends to what Lord Bridge described as ‘defects of quality’ rendering the dwelling unsuitable for its purpose as well as to ‘dangerous defects’.
iii) Unfitness for habitation relates to defects rendering the dwelling dangerous or unsuitable for its purpose and not to minor defects.
iv) Such a defect in one part of the dwelling may render the dwelling unsuitable for its purpose and therefore unfit for habitation as a dwelling house even if the defect does not apply to other parts of the dwelling. This is also the case under the Housing Act – see Summers v Salford Corporation.
v) The Act will apply to such defects even if the effects of the defect were not evident at the time when the dwelling was completed.
vi) In considering whether or not a dwelling is unfit for habitation as built one must consider the effect of the defects as a whole.”

On the appeal in this case, Bole & Anor v Huntsbuild Ltd (2009) EWCA Civ 1146, the Court of Appeal added

“The obvious purpose of a dwelling is for it to be occupied and inhabited safely and without inconvenience.”

And noted that

“The fact that the doors to the garage could not be locked was a relevant but not the only consequence of (the defendant’s) unprofessional work, which made the house unfit for habitation. Part of living in a house is to be able to maintain the security of the home.”

In the present case, the principle adopted is (at 68)

In my judgment, for a dwelling to be fit for habitation within the meaning of the Act, it must, on completion (without any remedial works being carried out):
(a) be capable of occupation for a reasonable time without risk to the health or safety of the occupants: where a dwelling is or is part of a newly constructed building, what is a reasonable time will be a question of fact (it may or may not be as long as the design life of the building); and

(b) be capable of occupation for a reasonable time without undue inconvenience or discomfort to the occupants.

The judgment also addressed some issues or defects which would be capable of making a dwelling unfit for habitation.

At 66 – “when a building was completed, there were defects that, if left unrepaired, would have the result that the structural integrity of part of the building was subject to a risk of failure at some time during the design life of the building.” (This in the context of defective foundations.)

At 70, “in my view a lift that was installed in such a manner that within a year or two of completion it broke down with monotonous regularity could, subject to the degree of inconvenience caused, mean that the dwelling was not fit for habitation at the time when the work was completed.”

This is also addressed at 82 xii: “Serious inconvenience that is not transient may make a dwelling unfit for habitation. For example, a lift in a tower block that was poorly installed so that it frequently broke down could well make apartments on the higher floors unfit for habitation.”

At 71, the safety of means of access, and escape: “where the defendant has taken on the provision of the means of access to the dwelling or the common parts of the building in which the dwelling is situated, the inability of the occupier of the dwelling to use the means of access or common parts that serve the dwelling in safety and without undue inconvenience or discomfort may make the dwelling unfit for habitation. For example, if the defendant has carried out the work (being part of the work taken on) so that access to the front door is hazardous, that could render the dwelling unfit for habitation because it presents a risk to the health and safety of the occupants.”

This is reinforced at 72: “In relation to the means of access to a dwelling, it seems to me that it goes without saying that a dwelling would not be fit for habitation if there was no means, or no safe means, of access to it, or escape from it in case of emergency. In relation to a building in multiple occupation, the same must apply also to the common parts of that building that serve the dwelling in question.”

At 79, on mould and damp: “I have no doubt that the presence of mould and damp in living rooms or bedrooms, if persistent and more than minor, renders an apartment unfit for habitation. Damp living conditions are well known to pose a risk to health, and there is evidence from some witnesses of actual risks to health or concern about the potential risk, either to themselves or children.” In the context of the case, the damp and mould arose from various causes: defects to the roof, lack of insulation, absence of a vapour check layer and leaks to shower pans.

Internal partitions and doors not meeting fire regulations gave rise to unfitness. At 267: “the design and workmanship involved in the installation of the internal partitions fell below the standard required by section 1 of the Act and has resulted in a number of these apartments no longer complying with the fire regulations in force at the time when they were built. I have concluded that the risk to the occupants in the event of fire makes each of these apartments unfit for habitation.” (But note that this did not attract general damages – 307.)

Problems with an entry intercom system – 261.

Where there are references to the time that the dwelling was built, this is significant in terms of section 1 Defective Premises Act, as that is wholly concerned with build defects (and there is a strict 6 year limitation period from the completion of the dwelling). That will not be an issue for Homes (Fitness for Human Habitation) Act 2018 cases, as the fitness obligation will be a continuing duty.

Now, the wording of section 1 DPA – ‘fit for habitation’ – what will be s.9A Landlord and Tenant Act 1985 – ‘fit for human habitation’ – differ slightly.

However, a cause of action under s.1 DPA arises when ‘the building is not fit for habitation when completed’ (para 60), and as set out above, at para 68 of the judgment, this means ‘not capable of occupation for a reasonable time without risk to the health or safety of the occupants’ and ‘not capable of occupation for a reasonable time without undue inconvenience or discomfort to the occupants’.

The H(FFHH)A test is whether the dwelling is “not reasonably suitable for occupation in that condition.’ (s.10 LTA 85 as amended). It is hard to see a significant distinction between the two tests. A dwelling that cannot be occupied without risk to health and safety, or without undue inconvenience or discomfort would also surely be ‘not reasonably suitable for occupation’.

This is supported by Bole v Huntsbuild making reference to Summers v Salford Corporation, which was a tenancy case under the precursor to section 8 LTA 1985 (on the same wording as s.8) in interpreting the meaning of s.1 DPA.

So, while there is undoubtedly a long way to go on the meaning of the H(FFHH)A test, the recent case law on s.1 DPA, including Rendlesham Estates, would seem to provide reasonable precedents, at least as far as build defects are concerned.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, assured-tenancy, Disrepair, Housing law - All, secure-tenancy and tagged .

4 Comments

  1. The paragraphs about lifts brought to mind a few real scenarios that I would like some clarity on.
    They all hinge on a block of flats where the freehold is held by a company which also services/manages those blocks.

    In an instance where the landlord, a leaseholder, rents a flat to a tenant, and that flat becomes unfit for habitation due to an issue for which the management company (the freeholder) is responsible, can the tenant bring action against the freeholder under the new law? And what liability does the leaseholder have in this scenario?
    I’m talking about scenarios such as heating (provided by communal heat pumps controlled by the freeholder) not working for months, lifts not working at all, etc.

    • The tenant would bring a claim against their direct landlord, the leaseholder, as the leaseholder almost certainly has ‘an estate or interest’ in the common parts and common facilities under their lease. Leaseholder gets freeholder to rectify, or could join them to the case as a Part 20 defendant on breach of lease.

  2. Hello Giles, thanks for posting this information. The examples you give help to understand legal remedies for hazards in common parts really interesting. I am beginning to understand why other previous laws were not sufficient. I am a leaseholder with a housing association myself. What if a neighbour removed the fire door to his flat (which has happened) – this risks safety of me and all other families in the building. I doubt the building owner will threaten his lease etc for something like this. Would the new fitness for habitation law give me and other residents rights to compel our freeholder to make the leaseholder reinstate the fire door?

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.