On 5 July 2021, the Government published the latest (and perhaps final) version of the Building Safety Bill (“Bill”), which among other things is designed to ensure that problems identified with building safety in higher risk buildings do not occur in new buildings and are appropriately mitigated and managed in existing buildings.
The Bill appears to introduce a number of changes to the Draft Building Safety Bill that was published a year ago.
Those changes that have received most press attention in the last 48 hours include amendments to the Defective Premises Act 1972 and commencement of Section 38 of the Building Act 1984.
Section 1(1) of the Defective Premises Act 1972 imposes a duty on those who take on work for or in connection with the provision of a dwelling to see that the work is done in a workmanlike, or as the case may be, professional manner, with proper materials and so that the dwelling will be fit for habitation when completed. Section 1(4) extends that duty so that it is also owed to persons whose business includes the provision of dwellings who arrange for another to take on work in connection with the provision of a dwelling. Following Royal Assent, the statutory limitation period of 6 years in which a claimant can bring a claim will be extended to 15 years. This will apply retrospectively.
That is not the only proposed change to the Defective Premises Act 1972. Currently, the Defective Premises Act 1972 only applies to the “provision of a dwelling”. Following Royal Assent, it is proposed that the remit of the Defective Premises Act 1972 will be extended to include refurbishment works. This will also be subject to a 15 year limitation period but will only apply prospectively.
In addition, it is proposed that Section 38 of the Building Act 1984 will be commenced. This will also be subject to a 15 year limitation period and will apply prospectively.
What does this mean in practice?
The retrospective amendment of the limitation period for claims under the Defective Premises Act 1972 in relation to the “provision of a dwelling” will afford leaseholders and other claimants more time (9 years) to bring proceedings. This has an obvious benefit to those who have potential claims under Section 1(1) which are currently outside the 6 year limitation period as those claims may be brought once the amendment has been enacted. However, there will be concerns amongst Landlords of older buildings where the original developer is no longer solvent as, by virtue of Section 1(4), such proceedings may potentially be brought against them as the Landlord who arranged for the developer to provide the relevant building. But, it will provide a small comfort for those who will never be in a financial position to pursue such claims.
The prospective extension of the Defective Premises Act 1972 is a welcome amendment as is the commencement of Section 38 of the Building Act 1984. Currently, a breach of the Building Regulations does not present a right under the Building Act 1984, on the part of a person affected by a breach of the Building Regulations, to claim damages. Most claims for breaches of the Building Regulations are based on an implied or express term of a contract between a building owner and contractor and/or designer. However, the commencement of Section 38 provides that a “breach of a duty imposed by building regulations so far as it causes damage” is actionable. This will potentially have far reaching consequences for future generations of claimants, such as leaseholders, who do not have a contractual nexus with the original contractor and/or designer.
The Outline Transition Plan for the Bill states that:
- the Government will publish a clear timetable for commencement;
- the passage through Parliament is not expected to take less than 9 months.
Following Royal Assent, it is intended that the expansion of the Defective Premises Act 1972 to include refurbishments and extension to the limitation period for the existing duty will come into force two months after the Bill receives Royal Assent. It is intended that Section 38 of the Building Act 1984 will be commenced at the same time.