The Building Act 2022 received Royal Assent on 28 April 2022 and on 28 June 2022 parts of the Act came into force which changed how long a party has to bring a claim under the Defective Premises Act 1972 ("1972 Act").
Historically claims under the 1972 Act had to be brought within 6 years of the works reaching completion. However, as a result of the changes under the Building Safety Act, the time periods for claims have been significantly extended and are now:
- 15 years for all claims going forward from when the changes to the DPA come into force; and
- 30 years to make retrospective claims
What this means in practise is that a Project which reaches completion on 27 June 2022 could be subject to claims through until 27 June 2052; a Project which reaches completion on 28 June 2022 could be subject to claims through until 28 June 2037; and any Project which completed on or after 28 June 1992 are potentially “live” again from a claim's perspective.
The Building Safety Act also changed what type of works can form the basis of the claim, meaning claims can now be made in relation to remedial works, not just the original contract works.
In order to bring a claim under the 1972 Act, it is necessary to show that a party involved in providing a "dwelling" failed to ensure it was "fit for habitation" when the works were completed. "Dwelling" is not defined under the 1972 Act, with the Courts suggesting it includes a building used or capable of being used as a dwelling house, which is not predominantly for commercial and industrial purposes. This Act applies to all dwellings in England and Wales regardless of their height.
Claims can be brought by the person who commissioned the dwelling and every person who has a legal or equitable interest in it. Further in passing the amendments under the Building Safety Act the Government commented that the 1972 Act imposes a regime of strict liability, meaning "no fault or negligence has to be shown in the claim". Instead, a claimant just needs to show the dwelling is not fit for habitation.
The 1972 Act does set out that it will be a defence to a claim if a party can show they were properly following the instruction of another, unless they had a duty to warn of the potential effects of following that instruction. However, agreeing to the works being done in a specified manner, or to a specified design will not amount to an "instruction".
There have been relatively few reported cases considering the 1972 Act, but the new extended time periods to make claims mean it is likely to become a route parties will consider pursuing going forward. This means those involved in the design, construction, and provision of residential property in England are now facing a much greater exposure to historic claims and a much longer liability period for new projects.
The government have recognised this and included two safeguards in the Building Safety Act in relation to retrospective claims under the 1972 Act: (1) the claim must be dismissed if it breaches the defendant's human rights; and (2) a claim which has previously been settled or finally determined by a court or arbitration cannot be revisited simply as a result of the extended time periods. We will have to wait to see how much protection this offers.
For now, the best step those involved in the provision of dwellings can take, is to ensure they have good record keeping measures in place to protect against the 15-year period for future claims and to review historic projects and records and consider which projects may present a risk.
For more information about the changes coming in under the Building Safety Act visit our Building & Fire Safety Hub, which includes possible drafting considerations in light of the extended time periods for claims.
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