Navigating building and fire safety claims: The Defective Premises Act
There have been many changes to building and fire safety claims and it is easy to be confused by the evolving landscape. In the first in a six-part series explaining the most important legal vehicles being used, Chris Bates, Sara Stephens and Jamil Sanaullah take a look at the Defective Premises Act 1972.
The Defective Premises Act 1972 provides remedies in respect of defects to dwellings. The key provisions are section 1, which relates to the construction of a new dwelling (whether by erecting or converting/enlarging of an existing building), and section 2A (brought in under the Building Safety Act 2022), which relates to any work to an existing dwelling, including renovation or extension works, provided the work is done in the course of a business.
What buildings are covered?
The 1972 Act applies to ‘dwellings’. Section 1(1) does not define a dwelling, but the courts have interpreted this to mean ‘a building used or capable of being used as a dwelling house, not being a building which is used predominantly for commercial and industrial purposes’ (Catlin Estates Ltd and another v Carter Jonas (a firm) [2005] EWHC 2315 (TCC); [2006] 2 EGLR 139). Section 2A applies to works to a ‘relevant building’, meaning any building containing one or more dwellings, which broadens the scope of the 1972 Act. Together, these definitions capture a wide range of dwellings from single-unit houses to buildings containing a mixture of residential and commercial units.
What defects are covered?
The defects covered are those which make a dwelling unfit for habitation – this is wider than whether it can be physically inhabited as it encompasses other risks of habitation too. For example, the courts have found a dwelling unfit for habitation if (i) the dwelling cannot be occupied for a reasonable time without risk to the health or safety of the occupants; (ii) the dwelling is not capable of being occupied for a reasonable time without undue inconvenience or discomfort; or (iii) there is serious inconvenience that is not transient (Rendlesham Estates plc and others v Barr Ltd [2014] EWHC 3968 (TCC); [2014] PLSCS 339).
The types of defects covered include (but are not limited to) fire safety defects, structural defects and significant water ingress but not cosmetic issues.
What is the threshold of liability?
The 1972 Act provides that a party is liable if the work is not carried out:
(i) in a workmanlike or professional manner; and
(ii) with proper materials,
so that the dwelling is not fit for habitation.
This is construed as a single duty in the sense that, to establish a breach, it is insufficient to show (for example) that a contractor’s workmanship was poor if the dwelling is nonetheless fit for habitation.
There is, however, considerable debate over whether liability under this duty is strict (meaning all that must be proved is that the dwelling is unfit for habitation because of the works), or whether a claimant must also establish a failure to undertake those works in a workmanlike or professional manner. In the context of construction professionals, the court recently dismissed an allegation of breach of the 1972 Act by an inspecting architect by considering what the architect ‘could reasonably have been expected to observe on reasonable inspection’ (Vainker and another v Marbank Construction Ltd and others [2024] EWHC 667 (TCC); [2024] PLSCS 61). This suggests that, at least when it comes to professionals, the duty may not be a strict one, and an assessment of the professional standard of care may also apply.
Who can bring a claim?
Potential claimants in 1972 Act claims include (1) the person to whose order the dwelling is provided and (2) any person who acquires a legal or equitable interest in the dwelling. In the recent high-profile case of URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21; [2025] EGCS 88, the Supreme Court affirmed that a person to whose order the dwelling is provided include developers and therefore developers are owed a duty under the 1972 Act.
A key benefit of the Act is that it extends to subsequent purchasers of dwellings, including freeholders and long leaseholders. Such persons might otherwise not have viable claims in law for defects against those involved in the original works.
Who can face a claim?
Parties potentially liable under a 1972 Act claim are those who take on work ‘for or in connection’ with the provision of the dwelling (section 1) or work in relation to any part of a relevant building (section 2A). This covers main contractors, sub-contractors, designers (including for their inspection duties), and other specialist contractor or professional roles.
Both sections provide that a party who arranges such work is also subject to the 1972 Act duty, therefore developers are also covered (as affirmed by the Supreme Court in URS). It does not, however, extend to local authorities or approved inspectors carrying out a building control function, as the courts have held such parties are not ‘positively contributing’ to the relevant works (Lessees and Management Company of Herons Court v Heronslea Ltd and others [2019] EWCA Civ 1423; [2019] EGLR 44).
What is the limitation period?
The 2022 Act made sweeping changes to limitation periods under the 1972 Act. Most notably, it extended the limitation period for section 1 claims from six years to 30 years, when the right of action accrued before 28 June 2022 ((with the accrual date being the completion of the works). To illustrate, this means that retrospective claims have become available for residential projects completed as far back as 1992 and projects completed in early 2022 now have a limitation period up to 2052.
For works completed on or after 28 June 2022, the 2022 Act introduced a prospective limitation period of 15 years for claims under section 1 and 2A.
Prior to these changes, the limitation period for 1972 Act claims was only six years.
How do 1972 Act claims fit into the new building safety landscape?
The 2022 Act has significantly reshaped the legal landscape for claims under the 1972 Act. In particular, four key developments have enhanced the power of a 1972 Act claim.
- Expansion to existing dwellings
As already described, the new section 2A of the 1972 Act applies to defects in works to existing dwellings and buildings containing at least one dwelling that cause unfitness for habitation. This significantly expands the scope of the 1972 Act, which previously only covered new dwellings (under section 1). It may therefore capture defects in alterations and renovations to existing dwellings made on or after 28 June 2022.
- Extended limitation periods
For new dwellings, for works completed prior to 28 June 2022, there is a 30-year retrospective limitation period. For new dwellings and existing dwellings, for works completed on or after 28 June 2022, there is a 15-year prospective limitation period. This marks a significant extension of the previous six-year limitation period.
- Adjudication of claims
By virtue of the recent judgment in BDW Trading Ltd v Ardmore Construction Ltd [2024] EWHC 3235 (TCC), parties to a construction contract (as defined by the Housing Grants, Construction and Regeneration Act 1996), which includes most building contracts and professional appointments, can likely now refer 1972 Act claims to adjudication, as an alternative to commencing court proceedings or arbitration. Considering the significantly longer time period and higher costs incurred in pursuing a litigation claim as opposed to the much shorter period to obtain an adjudication decision, this judgment significantly broadens the scope and potential appetite for parties to pursue 1972 Act claims.
- Knock-on effect of Building Liability Orders
Finally, the introduction of building liability orders under section 130 of the 2022 Act now means that a party’s liability under the 1972 Act may extend to an associated company within the same corporate structure, subject to demonstrating that the company is a controlling party, and it is just and equitable to make the order. This expands exposure to liability to wider corporate groups and provides claimants with greater scope to obtain financial recourse.
This article was originally published in the Estates Gazette in June 2025.