The Building Safety Act 2022 (“the Act”) makes substantial changes to improve building standards. The Act was enacted on 28 April 2022 and certain provisions are due to come into force on 28 June 2022, including amendments to the Defective Premises Act 1972 (“DPA”) and the limitation periods in relation to claims under it. Those amendments will increase the liability of those in the construction industry, including developers and contractors, and in terms of limitation may impact existing and previous cases as well as future cases. The remit of the Act is wide and so this article only focuses on the amendments connected to the DPA.
Defective Premises Act 1972
Section 1 of the DPA already contains a duty for a person taking on work for or in connection with the provision of a 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. This has been interpreted quite restrictively in the past and has often been referred to as being a toothless legal avenue.
The Act intends to dramatically expand the scope of the duties owed under the DPA by adding a new section 2A. This new section provides that where a person, in the course of a business, takes on work in relation to any part of a “relevant building” (a building consisting of or containing one or more dwellings), there is a duty to see that the work is done in a workmanlike manner or, as the case may be, professional manner, with proper materials and so that as regards the work the dwelling is fit for habitation when the work is completed. This duty is owed to the person for whom the work is done and each person who holds or acquires an interest in a dwelling in the building and will only apply to works completed after 28 June 2022. Importantly, this new addition extends the scope of the DPA from new dwellings to include renovation, refurbishments and extensions.
Limitation Act 1980
The Act also amends the limitation period in respect of claims relating to the existing and new duties under the DPA by inserting a new provision in the Limitation Act 1980.
The time limit to bring a claim for breach of the new duty under s2A of the DPA is 15 years from the completion of the works.
The time limit to bring a claim for breach of the duty under section 1 of the Defective Premises Act 1972 is extended from 6 years to 15 years from the completion of the dwelling. If, however, a person became entitled to bring a claim before 28 June 2022 by virtue of section 1 of the Defective Premises Act 1972, the time limit to bring a claim is then 30 years from the completion of the dwelling. This amendment is to be treated as if it has always been in force and therefore applies retrospectively.
It is highly unusual for legislative provisions to operate retrospectively. Due to the retrospective nature of the limitation period in respect of claims under section 1 of the DPA, it may be that previous and existing claims considered not to be a risk due to an expired limitation period may now become an issue.
It is clear that the general intention behind these amendments is to push the financial costs of remediating historic building defects onto those responsible in the construction industry. There are potentially two defences or arguments available under the Act:
(1) where a claim was settled or finally determined before 28 June 2022, the retrospective extended limitation period will not apply; and/or
(2) if a claim would have been time-barred for limitation purposes were it not for the extended retrospective limitation period, then a court hearing the claim must dismiss the claim if it is satisfied it is necessary to do so to avoid a breach of a defendant’s human rights.
It remains to be seen how these provisions, in particular the human rights defence, will be interpreted by the courts but the first cases relying on the new provisions will be awaited with great interest. Those with issues relating to historic building defects will be reviewing their position in light of these amendments and trying to see if they can now claim within the remit of the DPA. Those in the construction industry, such as developers and contractors, should be alive to these potential issues and seek advice early on any claims of concern.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.