How concerned should architects be about the dramatic extension of liability periods for both historic and future works? This is due to come into force on 28 June 2022.
The new limitation periods for claims under the Defective Premises Act (DPA) will jump from six to 30 years for retrospective claims and from six to 15 years for prospective claims on buildings completed after the June date.
Small practices undertaking domestic extensions and refits should be aware that the new Building Safety Act (BSA), which brings in these changes, extends liability under the DPA to include works carried out on existing dwellings. Previously, the DPA only applied to the provision of new dwellings (including conversions).
The DPA will apply to any prospective works on any dwelling, or any building containing a dwelling. Even where the work is done to a non-residential part of the building, the DPA will apply if a relevant dwelling is adversely affected.
In all claims made under the DPA, the test will be whether the defects prevent a dwelling from being ‘fit for habitation’ when completed. The courts will not accept claims for defects or poor workmanship generally, only where they:
- impact on the health and safety of occupants;
- or result in unreasonable inconvenience or discomfort.
Liability under the DPA is strict. There is no burden on the claimant to prove the defendant was at fault or negligent, and a defence based on having followed the established practice at the time would not be considered valid.
The BSA is also extending the limitation period for claims made under the Building Act 1984 (section 38) to 15 years where there has been a breach of Building Regulations that resulted in property damage or personal injury.
Under the DPA, claimants can include:
- those who commissioned the dwelling;
- or any person who acquires a legal or equitable interest in it.
This opens up retrospective claims to subsequent owners of buildings completed as far back as mid-1992 who have never had a contractual relationship with the developer or construction professionals.`
Legal experts have been pointing out that the unexpected extension of the limitation period for retrospective claims to 30 years will, in many cases, leave developers, housebuilders and their consultants without the records and archived information they need to defend claims.
Recognising this, the BSA will allow the courts to dismiss claims where defendants can show that the retrospective extension of the limitation period has interfered with their right to a fair trial (and therefore breaching the Human Rights Act 1998). Several construction lawyers have commented that it is unclear how such defences will play out in the courts.
The act also states that claims that have been settled or “finally determined” prior to 28 June 2022 will be out of scope and cannot be revived simply because of the extended limitation period.
There is a completely new route for claims against construction product manufacturers and suppliers where products have a role in creating building safety risks. The government’s Redress: Factsheet, one of a series of guidance factsheets on the BSA, explains that this measure will offer a way of holding manufacturers accountable.
Actions can be launched if a product has been mis-sold, is found to be inherently defective or is in breach of existing construction product regulations. The new claims route will apply to new buildings from this month onwards and historic builds completed in the last 30 years.
More information about other changes brought in by the BAS can be read about in the RIBA features The Building Safety Act is now English law and What does the Building Safety Bill mean for architects’ responsibilities?.
The RIBA currently offers on-demand digital CPD on the Building Safety Act and next steps for architects by Paul Bussey, Senior Technical Consultant at AHMM. It is available now from RIBA Academy.
Text by Neal Morris. This is a Professional Feature edited by the RIBA Practice team. Send us your feedback and ideas
RIBA Core Curriculum topic: Legal, regulatory and statutory compliance.
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First published Thursday 16 June 2022
