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Defective Premises Act 1972

LAWS OF THE UNITED KINGDOM

DEFECTIVE PREMISES ACT 1972
(1972 c 35)

ARRANGEMENT OF SECTIONS

Section

1. Duty to build dwelling property
2. Cases excluded from the remedy under section 1
3. Duty of care with respect to work done on premises not abated by disposal of premises
4. Landlord’s duty of care in virtue of obligation or right to repair premises demised
5. Application to Crown
6. Supplemental
7. Short title, commencement and extent

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An Act to impose duties in connection with the provision of dwellings and otherwise to amend the law of England and Wales as to liability for injury or damage caused to persons through defects in the state of premises

[29 June 1972]

Northern Ireland. This Act does not apply; see s 7(3) post.

1 Duty to build dwellings properly

(1) A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty-

(a) if the dwelling is provided to the order of any person, to that person; and

(b) without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling;

to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.

(2) A person who takes on any such work for another on terms that he is to do it in accordance with instructions given by or on behalf of that other shall, to the extent to which he does it properly in accordance with those instructions, be treated for the purposes of this section as discharging the duty imposed on him by subsection (1) above except where he owes a duty to that other to warn him of any defects in the instructions and fails to discharge that duty.

(3) A person shall not be treated for the purposes of subsection (2) above as having given instructions for the doing of work merely because he has agreed to the work being done in a specified manner, with specified materials or to a specified design.

(4) A person who-

(a) in the course of a business which consists of or includes providing or arranging for the provision of dwellings or installations in dwellings; or

(b) in the exercise of a power of making such provision or arrangements conferred by or by virtue of any enactment;

arranges for another to take on work for or in connection with the provision of a dwelling shall be treated for the purposes of this section as included among the persons who have taken on the work.

(5) Any cause of action in respect of a breach of the duty imposed by this section shall be deemed, for the purposes of the Limitation Act 1939, the Law Reform (Limitation of Actions, &c) Act 1954 and the Limitation Act 1963, to have accrued at the time when the dwelling was completed, but if after that time a person who has done work for or in connection with the provision of the dwelling does further work to rectify the work he has already done, any such cause of action in respect of that further work shall be deemed for those purposes to have accrued at the time when the further work was finished.
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NOTES

General Note. This section, which substantially follows the provisions of clause 1 of the draft Bill appended to the Law Commission's Report on the Civil Liability of Vendors and Lessors for Defective Premises (Law Com No 40), imposes a statutory duty upon builders, subcontractors, architects and others who take on work for or in connection with the provision o£ dwellings and also (by sub-s (4) above) upon developers, local authorities and others who arrange for such work to be taken on. The content of the duty is similar to the term implied at common law in building contracts, that the building shall be erected in a workmanlike manner, with proper materials and will be fit for human habitation. The main differences between the common law position and the position under this section are (1) that the statutory duty cannot be excluded by agreement (s 6(3) post); (2) that the statutory duty is imposed upon persons who are not necessarily parties to the building contract, as well as those who are; and (3) that the statutory duty is owed to any person who acquires an interest in the dwelling, whether or not he is a party to the building contract.

For cases which are excluded from the remedy under this section, see s 2 post.

Sub-s (1): Person. Unless the contrary intention appears this includes a body of persons corporate or unincorporate; see the Interpretation Act 1978, s 5, Sch 1, Vol 41, title Statutes.

Taking on work. Note the reference in sub-s (1) above to "a professional manner", making it clear that the work of professional men, such as architects, is included. Note also the provisions of sub-s (4) above and s 2(7) (b) post as to persons who are to be treated as having taken on work. The duty applies only to work begun after the commencement of this Act, ie 1 January 1974; see Alexander v Mercouris [1979] 3 All ER 305,[1979] 1 WLR 1270, CA.

Dwelling. The term "dwelling" implies a building used or capable of being used as a residence by one or more families, and provided with all necessary parts and appliances, such as floors, windows, staircases, etc; see 4(2) Halsbury's Laws (4th edn reissue) para 335.

Building. It is thought that this expression must be given its ordinary meaning, which, in the words of Byles J, in Stevens v Gourley [1859] EngR 931; (1859) 7 CBNS 99 at 112, is "a structure of considerable size and intended to be permanent or at least to endure for a considerable time". Perhaps there must also be added, in accordance with the view expressed by Lord Esher MR, in Moir v Williams [1892] 1 QB 264 at 270, that the structure must be covered by a roof. It is submitted, however, that contrary to that view, the structure need not consist of bricks and stone-work. In fact a wooden structure of considerable size was held to be a building in Stevens v Gourley supra, and in any case the presence of bricks and stone-work seems to be irrelevant in the light of modern technology. Nevertheless, it would seem that a structure cannot be regarded as a building unless it can be said to form part of the realty and change the physical character of the land; see Cheshire CC v Woodward [1962] 2 QB 126, [1962] 1 All ER 517. See also the cases cited in 1 Words and Phrases (3rd edn) 196 et seq.

Owes a duty. The duty is in addition to any duties owed apart from this section; see s 6(2) post. Liability under this section is imposed for non-feasance as well as for misfeasance, therefore sub-s (1) applies to failure to carry out necessary work as well as carrying it out badly; see Andrew v Schooling [1991] 3 All ER 723, [1991] 1 WLR 783, CA. For conditions implied in certain contracts for the letting of small houses, see the Landlord and Tenant Act 1985, s 8, Vol 23, title Landlord and Tenant (Pt 1). As to implied warranties in building contracts at common law, see Young & Marten Ltd v McManns Childs Ltd [1969] 1 AC 454, [1968] 2 All ER 1169, HL, and Gloucestershire CC v Richardson [1969] 1 AC 480, [1968] 2 All ER 1181, HL.

The Act contains no express provision as to the remedies for breach of the duty. For the general rules as to remedies for breaches of statutory duties, see the Preliminary Note to the title Statutes, Vol 41.

Person who acquires an interest. For special provisions as to the acquiring authority in the case of compulsory acquisition, see s 2(7) post.

Fit for habitation. In Hancock v B W Brazier (Anerley) Ltd [1966] 2 All ER 1, [1966] 1 WLR 1317, it was suggested that the requirement of fitness for human habitation adds nothing to the requirements that the work should be properly done and with proper materials.

See also the Housing Act 1985, s 604, Vol 21, title Housing, and the Landlord and Tenant Act 1985, s 10, Vol 23, title Landlord and Tenant (Pt 1).

Sub-s (4): Power... conferred by ... any enactment. See, in particular, the Housing Act 1985, ss 11, 16, 52, Vol 21, title Housing. Sub-s (5) : Deemed. The primary function of the word "deem" is to bring in something which would otherwise be excluded; see Barclay's Bank Ltd v IRC [1961] AC 509 at 523, [1960] 2 All ER 817 at 820, HL per Viscount Simonds. For other relevant cases, see 2 Words and Phrases (2nd edn) 27, 28, and Public Trustee v IRC [1960] AC 398,[1960] 1 All ER 1 at 510, HL per Lord Radcliffe.

Limitation Act 1939; Law Reform (Limitation of Actions etc) Act 1954; Limitation Act 1963. See now the Limitation Act 1980, Vol 24, title Limitation of Actions.
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2 Cases excluded from the remedy under section 1

(1) Where-

(a) in connection with the provision of a dwelling or its first sale or letting for habitation any rights in respect of defects in the state of the dwelling are conferred by an approved scheme to which this section applies on a person having or acquiring an interest in the dwelling; and

(b) it is stated in a document of a type approved for the purposes of this section that the requirements as to design or construction imposed by or under the scheme have, or appear to have, been substantially complied with in relation to the dwelling;

no action shall be brought by any person having or acquiring an interest in the dwelling for breach of the duty imposed by section 1 above in relation to the dwelling.

(2) A scheme to which this section applies-

(a) may consist of any number of documents and any number of agreements or other transactions between any number of persons; but

(b) must confer, by virtue of agreements entered into with persons having or acquiring an interest in the dwellings to which the scheme applies, rights on such persons in respect of defects in the state of the dwellings.

(3) In this section "approved" means approved by the Secretary of State, and the power of the Secretary of State to approve a scheme or document for the purposes of this section shall be exercisable by order, except that any requirements as to construction or design imposed under a scheme to which this section applies may be approved by him without making any order or, if he thinks fit, by order.

(4) The Secretary of State-

(a) may approve a scheme or document for the purposes of this section with or without limiting the duration of his approval; and

(b) may by order-revoke or vary a previous order under this section or, without such an order, revoke or vary a previous approval under this section given otherwise than by order.

(5) The production of a document purporting to be a copy of an approval given by the Secretary of State otherwise than by order and certified by an officer of the Secretary of State to be a true copy of the approval shall be conclusive evidence of the approval, and without proof of the handwriting or official position of the person purporting to sign the certificate.

(6) The power to make an order under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution by either House of Parliament.

(7) Where an interest in a dwelling is compulsorily acquired-

(a) no action shall be brought by the acquiring authority for breach of the duty imposed by section 1 above in respect of the dwelling; and

(b) if any work for or in connection with the provision of the dwelling was done otherwise than in the course of a business by the person in occupation of the dwelling at the time of the compulsory acquisition, the acquiring authority and not that person shall be treated as the person who took on the work and accordingly as owing that duty.
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NOTES

General Note. This section provides for an exemption from the provisions of s 1 ante in cases where an approved scheme applies (sub-ss (1)-(6)). The scheme principally envisaged is the protection scheme of the National House-Builders Registration Council, under which the builder gives warranties in terms similar to the duty imposed by s 1(1) ante, in favour of the purchaser and his successors in title, and the Council guarantees the builder's obligations up a maximum liability; see the Law Commission's Report (Law Com No 40), paras 22-25.

This section also contains provisions dealing with the application of s 1 ante in cases where a dwelling is compulsorily acquired (sub-s (7)).

Sub-s (1): Dwelling; person. See the notes to s 1 ante.

Sub-s (3): Secretary of State. Is one of Her Majesty's Principal Secretaries of State; see the Interpretation Act 1978, s 5, Sch 1, Vol 41, title Statutes. The Secretary of State here concerned is the Secretary of State for the Environment.

Sub-s (4): Revoke or vary. The express power to vary or revoke orders is necessary because the Interpretation Act 1978, s 14, Vol 41, title Statutes, does not extend to powers to make such instruments contained in Acts passed before 1 January 1979; see s 22(1) of, and Sch 2, para 3 to, that Act.

Sub-s (5): Conclusive evidence. The tendering of evidence declared by statute to be conclusive precludes evidence to the contrary unless the evidence adduced is inaccurate on the face of it or fraud is shown, but other evidence to the same effect is not made inadmissible; see 17 Halsbury's Laws (4th edn) para 28.

Sub-s (6): Statutory instrument; subject to annulment. For provisions as to statutory instruments generally, see the Statutory Instruments Act 1946, Vol 41, title Statutes, and as to statutory instruments which are subject to annulment in pursuance of a resolution of either House of Parliament, see ss 5(1), 7(1) of that Act.

Sub-s (7): In the course of a business. Something is done "in the course of a business if it is done as part of its activities; cf Charles R Davidson & Co v M'Robb (or Officer) [1918] AC 304 at 321 per Lord Dunedin. See also Havering London Borough v Stevenson [1970] 3 All ER 609, [1970] 1 WLR 1375; Wycombe Marsh Garages Ltd v Fowler [1972] 3 All ER 248, [1972] 1 WLR 1156; and Davies v Sumner [1984] 3 All ER 831, [1984] 1 WLR 1301, HL. On the meaning of "business", see 47 Halsbury's Laws (4th edn) paras 2, 3, and 1 Words and Phrases (3rd edn) 204 et seq.

Acquiring authority. For two slightly different definitions of this term, see the Land Compensation Act 1961, s 39(1), and the Compulsory Purchase Act 1965, s 1(3), both Vol 9, title Compulsory Acquisition.

Orders under this section. Current NHBC Schemes are not recorded in this work.
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3 Duty of care with respect to work done on premises not abated by disposal of premises

(1) Where work of construction, repair, maintenance or demolition or any other work is done on or in relation to premises, any duty of care owed, because of the doing of the work, to persons who might reasonably be expected to be affected by defects in the state of the premises created by the doing of the work shall not be abated by the subsequent disposal of the premises by the person who owed the duty.

(2) This section does not apply-

(a) in the case of premises which are let, where the relevant tenancy of the premises commenced, or the relevant tenancy agreement of the premises was entered into, before the commencement of this Act;

(b) in the case of premises disposed of in any other way, when the disposal of the premises was completed, or a contract for their disposal was entered into, before the commencement of this Act; or

(c) in either case, where the relevant transaction disposing of the premises is entered into in pursuance of an enforceable option by which the consideration for the disposal was fixed before the commencement of this Act.
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NOTES

General Note. This section, which follows clause 2 of the draft Bill appended to the Law Commission's Report on the Civil Liability of Vendors and Lessors for Defective Premises (Law Com No 40), removes the special immunity enjoyed at common law by a vendor or lessor of land from liability for his own negligent acts committed before the sale or letting; see further the note "Duty of care owed. . ." below. The position of a vendor or lessor will now be the same as that of, for example, a building contractor or architect who carries out work on or in connection with another person's premises. If such a contractor or architect does his work negligently, he is liable for injury caused by this negligence even after he had relinquished control of the premises.

Premises. The term "premises", though originally possessing a very limited meaning, ie the parts of a deed which precede the habendum, is widely used in the popular sense as including land, houses, buildings, etc; see, eg, Metropolitan Water Board v Paine [1907] 1 KB 285; Whitley v Stumbles [1930] AC 544, HL; Bracey v Read [1963] Ch 88, [1962] 3 All ER 472; and Maunsell v Olins [1975] AC 373, [1975] 1 All ER 16, HL. In general "premises" would seem to have been construed as meaning a whole property in either one occupation or one ownership according to the context in which it is used; see, eg, Cadbury Bros Ltd v Sinclair [1934] 2 KB 389 at 393 (revsd on other grounds (1933) 103 LJKB 29), and Brickwood & Co v Reynolds [1898] 1 QB 95.

Duty of care owed ... shall not be abated. A duty of care is owed in circumstances where the damage suffered by the owner or occupier of property was material or physical and not merely pure economic loss (ie the loss of either having to remedy the defect or of abandoning the property as unfit for habitation); Murphy v Brentwood District Council [1991] 1 AC 398, [1990] 2 All ER 908, HL. See also Preston v Torfaen Borough Council (1993) Times, 21 July, CA. For the common law duty owed by a person doing work on the land, see Clay v AJ Crump & Sons Ltd [1964] 1 QB 533, [1963] 3 All ER 687, CA.

Note that by s 6(3) post, "contracting out" of the provisions of this section is prohibited.

Person. See the note to s 1 ante.

Commencement of this Act. Ie 1 January 1974; see s 7(2) post.

Definitions. For "disposal" and "tenancy" see s 6(1) post.
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4 Landlord's duty of care in virtue of obligation or right to repair premises demised

(1) Where premises are let under a tenancy which puts on the landlord an obligation to the-tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.

(2) The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect.

(3) In this section "relevant defect" means a defect in the state of the premises existing at or after the material time and arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises; and for the purposes of the foregoing provision "the material time" means-

(a) where the tenancy commenced before this Act, the commencement of this Act; and

(b) in all other cases, the earliest of the following times, that is to say-

(i) the time when the tenancy commences;

(ii) the time when the tenancy agreement is entered into;

(iii) the time when possession is taken of the premises in contemplation of the letting.

(4) Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he shall be treated for the purposes of subsections (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance or repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy.

(5) For the purposes of this section obligations imposed or rights given by any enactment in virtue of a tenancy shall be treated as imposed or given by the tenancy.

(6) This section applies to a right of occupation given by contract or any enactment and not amounting to a tenancy as if the right were a tenancy, and "tenancy" and cognate expressions shall be construed accordingly.
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NOTES

General Note. This section was designed to replace the Occupies' Liability Act 1957, s 4 (which is repealed by s 6(4) of this Act), and it substantially follows clause 4 of the draft Bill appended to the Law Commission's Report on the Civil Liability of Vendors and Lessors for Defective Premises (Law Com No 40). The effect of the replacement of s 4 of the 1.957 Act is to change the law in three respects: (i) this section does not reproduce s 4(4) of the 1957 Act, which confined the landlord's liability to cases where his default was actionable at the suit of the occupier, thus importing the requirement of actual notice of the defect given by the occupier to the landlord; (ii) the 1957 Act protected only persons who, or whose goods, were on the premises, while others had only such rights as the common law relating to nuisance made available; sub-s (1) above affords equal protection to all persons affected; (iii) the existence of a right of entry for the purpose of maintenance and repair, previously relevant only in actions for nuisance, is now generally put on the same footing as an obligation to repair (see sub-s (4) above).

Sub-s (1): Premises. See the note to s 3 ante.

Owes...a duty. The duty is additional to any duties owed apart from this section; see s 6(2) post. See also Barrett v Lounova (1982) Ltd [1990] 1 QB 348, [1989] 1 All ER 351, CA (implied duty on landlord to repair exterior of premises where tenancy agreement only expressly required tenant to keep interior in good repair).

If an owner knows of a defect (not created by him) in his premises before he sells them or lets them but neither repairs nor gives warning of the defect neither this Act nor common law impose liability on him for harm which results after he has disposed of them by sale or lease; see Cavalier v Pope [1906] AC 428, HL; Bromley v Mercer [1922] 2 KB 126, CA.

For the liability of a landlord in nuisance, see Brew Brothers Ltd v Snax (Ross) Ltd [1970] 1 QB 612, [1970] 1 All ER 587, CA, and see generally 34 Halsbury's Laws (4th edn) paras 301-400.

The Act contains no express provision as to the remedies for breach of the duty. For the general rules as to remedies for breaches of statutory duties, see the Preliminary Note to the title Statutes, Vol 41.

Any agreement to exclude or restrict the scope or operation of the duty is rendered void; see s 6(3) post.

Persons. See the note "Person" to s 1 ante.

Sub-s (3): Commencement of this Act. Ie 1 January 1974; see s 7(2) post.

Sub-s (4): Right to enter. .. to carry out any description of maintenance, etc. For a case in point, see McAuley v Bristol City Council [1991] EWCA Civ 2; [1992] 1 QB 134, [1992] 1 All ER 749, CA.

Sub-s (5): Obligations imposed ... by any enactment, etc. For enactments under which obligations as to maintenance and repair are or may be imposed, see, for example, the Agricultural Holdings Act 1986, s 7, Vol 1, title Agriculture (Pt 3), and the Landlord and Tenant Act 1985, ss 8, 11, Vol 23, title Landlord and Tenant (Pt 1).

Sub-s (6): Right of occupation... not amounting to a tenancy. For the distinction between a tenancy and a licence, see 27 Halsbury's Laws (4th edn) para 6. A statutory right of occupation which would seem to fall within sub-s (6) above is that created by the Matrimonial Homes Act 1983, s 1, Vol 27, title Matrimonial Law (Pt 2).

Definitions. For "personal injury" see s 6(1) post; for "tenancy" see s 6(1) post in conjunction with sub-s (6) above.
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5 Application to Crown

This Act shall bind the Crown, but as regards the Crown's liability in tort shall not bind the Crown further than the Crown is made liable in tort by the Crown Proceedings Act 1947.
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NOTES

Bind the Crown. See, generally, as to the application of statutes to the Crown, 8 Halsbury's Laws (4th edn) para 958.

Crown Proceedings Act 1947. See Vol 13, title Crown Proceedings. As to the Crown's liability in tort under that Act, see s 2 thereof.
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6 Supplemental

(1) In this Act-

"disposal", in relation to premises, includes a letting, and an assignment or surrender of a tenancy, of the premises and the creation by contract of any other right to occupy the premises, and "dispose" shall be construed accordingly;

"personal injury" includes any disease and any impairment of a person's physical or mental condition;

"tenancy" means-

(a) a tenancy created either immediately or derivatively out of the freehold, whether by a lease or under lease, by an agreement for a lease or under lease or by a tenancy agreement, but not including a mortgage term or any interest arising in favour of a mortgagor by his attorning tenant to his mortgagee; or

(b) a tenancy at will or a tenancy on sufferance; or

(c) a tenancy, whether or not constituting a tenancy at common law, created by or in pursuance of any enactment;

and cognate expressions shall be construed accordingly.

(2) Any duty imposed by or enforceable by virtue of any provision of this Act is in addition to any duty a person may owe apart from that provision.

(3) Any term of an agreement which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of any of the provisions of this Act, or any liability arising by virtue of any such provision, shall be void.

(4)...
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NOTES

Sub-s (4) repeals the Occupiers' Liability Act 1957, s 4.

Premises. See the note to s 3 ante.

Any other right to occupy. Cf s 4(6) ante and the note "Right of occupation, etc" thereto.
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7 Short title, commencement and extent

(1) This Act may be cited as the Defective Premises Act 1972.

(2) This Act shall come into force on 1st January 1974.

(3) This Act does not extend to Scotland or Northern Ireland.

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