Facts:
Mr. and Mrs Vainker purchased the land and the house in 1999. The house was demolished in 2003 with the intention of building a new property. The project was led by Mrs. Vainker and the house was intended as a home on her retirement. Mr. Vainker was working and living in Luxembourg at the time.
In June 2009, she met Steven Clifton of SCd to discuss the requirements of the house which she argued Marbank should have been aware of. One of those requirements was that each members of the family should have their own bedroom.
SCd was engaged by Mrs Vainker in, or about mid-2011. In March 2013, Marbank and Mrs Vainker entered into a contract on the standard form JCT Standard Building Contract Without Quantities 2011, with amendments, and with Contractor's Design Portion. Work began in 2013 and Practical completion was certified on 15 May 2014. During the course of the works, complaints were made about the state of the brickwork and water ingress. Following completion, complaints of water ingress continued.
The proceedings commenced in May 2020 with the main defects being related to brickwork, glass, Accoya, the green roof, roof light, Jura worktops and tiles, and brise soleil.
Decision:
Mrs Justice Jefford found for the claimants after carrying out an in-depth analysis of the Defective Premises Act 1972 (DPA). She noted that a claim can often proceed under the DPA even though the claim is statute-barred in contract or tort. Indeed, the Building Safety Act 2022 amendments to the DPA extend limitations under the DPA even further.
The Judge reiterated that the approach taken in Rendlesham v Barr [2014] is that the first consideration is whether the house was, at the time of completion, fit for habitation. This question is fact sensitive and the Court will consider the specification or end purpose of the house. In this case, consideration was given to the fact that the claimants wanted a designer house.
Moreover, it is unlikely that a defect that is only aesthetic or inconvenient would render a house unfit for habitation and would not result in damage under the Act. Additionally, “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.” Finally, “In considering whether a failure to carry out works in a workmanlike or professional manner renders a dwelling unfit for habitation at the date of completion, it is appropriate to consider the aggregate effect of defects.” Less severe defects may be combined to deem a house uninhabitable.
Section 6(3) DPA can supersede any party’s attempt to rely on ‘net contribution clauses’ found in standard contracts.
Once a breach has been established, the damages awarded are not limited to the “minimum necessary” to put the dwelling in a habitable condition. Instead, the “recoverable damages should, therefore, be the cost of making the dwelling fit for habitation in the way it would have been had the services been supplied in a professional manner.” Moreover, while a court can make awards for distress and inconvenience, (a) this will be assessed factually, and (b) a claimant is to be assumed to be a reasonably robust person.
Implications:
This case provides useful guidance on the circumstances in which the Defective Premises Act 1972 applies and the consequences of breaching it. The case reiterated the findings of Rendlesham v Barr [2014] and the four questions to be asked. It also makes clear that distress and inconvenience can be recovered under certain conditions. Finally, this judgement clarifies the limitation period applying to the Act and that less severe defects may be combined to deem a house uninhabitable.
One of the lessons from this case is that the purpose or specification of a house is important, even if they are not formally included in a contract.