Hole? What hole? Ben Worthington, who acted for the project manager on Jenson vs Faux, discussed by Tony Bingham, says the Defective Premises Act has been properly restricted to new dwellings

Unlike Tony Bingham, I see no hole in the Defective Premises Act as a result of the Court of Appeal’s decision in the case of Jenson vs Faux.

Tony wants the duty imposed by section 1 of the act to apply much more widely. Let us look again at the obligations imposed by section 1. There are some remarkable aspects to it. First, forget all that stuff you know about privity of contract. It doesn’t matter that you’ve never heard of Mr and Mrs Blogs who bought that house years after you did the work there. They don’t need a contract with you since they can pursue you under the act anyway.

The act also imposes a more stringent obligation than many builders and professional consultants will normally be willing to agree to in the contract. Proving that you used reasonable skill and care when carrying out the works will be no defence to a claim under the act. So, even though your lawyers crossed out that fitness-for-purpose obligation in the building contract, it still applies.

The act, of course, is not just about builders. The obligations in section 1 are imposed upon anyone “taking on work for, or in connection with, the provision of a dwelling”. That definition is strikingly wide.

Are there any good reasons for broadening the act further, to include all dwellings and not just new ones? The act came about as a result of a Law Commission Report, the recommendations of which were aimed at the provision of new dwellings. The reasoning was plain: there is simply no compelling reason that a person buying a new dwelling from a builder should have to examine in detail whether that dwelling, brand spanking new as it is, is in sound condition.

But that is very different to a situation in which refurbishment works take place on an existing dwelling. The assumption that a dwelling is fit for purpose just does not hold good for dwellings that are not new. Do we really want to encourage the purchasers of 100-year-old properties to forgo a survey simply because the seller has had some work done in the basement?

In Jenson vs Faux, the works were extensive but they clearly did not create a dwelling where none before existed

So, Tony is wide of the mark when he says: “There is an unintended hole in the act of parliament that is supposed to protect house purchasers from defects.” The act was never intended to protect house purchasers generally. This seems to me to be entirely sensible. There are ways that the purchasers of properties can protect themselves. In Jenson vs Faux, Lord Justice Etherton noted that “there are good reasons why caveat emptor [“let the buyer beware”] has been the rule in house purchases for many centuries. Buyers are always able to have surveys done as Mr and Mrs Jenson did in this case”. If purchasers are worried about the building works carried out by third parties, then they can ask for a guarantee.

In Jenson vs Faux, the works were extensive but they clearly did not create a dwelling where none before existed. There was more space, but the dwelling was the same dwelling at the same address. The kitchen was bigger, but it was in the same place. If the Court of Appeal had found that the works procured by Mr Green were in respect of a new dwelling, then any type of works to an existing building might arguably create a new dwelling. This would have caused great uncertainty in the industry at a time when refurbishment works of the type carried out by Mr Green in this case are not uncommon nationwide.

Those in the construction industry involved in conversions and refurbishments will take great comfort from the court’s decision to restrict the scope of the Defective Premises Act to new dwellings.

Ben Worthington is a lawyer at Trowers and Hamlins. He and partner Roger King advised Mr Faux

This article was originally published under the heading ’…And nothing but the truth’