A Golden Age for Defective Premises Act Claims?

Andrew Butler KC commences a short three-part series of articles examining the Defective Premises Act 1972. This first article considers why the Act, historically overlooked, may now be assuming a more prominent role in property damage claims and explores the key developments shaping its renewed significance.

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The Defective Premises Act 1972 (“the DPA”) has often felt like a somewhat forgotten corner of the statute book. Decisions on it are few and far between, and appellate decisions are rarer still. What is usually regarded as the leading case – at least as far as the statutory test of fitness for habitation is concerned – is the first-instance decision in Rendlesham Estates -v- Barr [2015] 1 WLR 3663, which hardly trips off the tongue for most practitioners. The reality is that in cases where disrepair is alleged, there is usually an alternative source of obligation which comes to mind sooner than the DPA; a lease, a construction contract, or an alternative and more familiar piece of legislation, such as one of the Housing acts. The DPA tends to occupy a subordinate role, assuming it features at all.

However, there is reason to think that the DPA may soon assume a more prominent position in property damage claims than it historically has.

It is convenient to start with a reminder of the scope of the DPA duty, as originally enacted. In summary, s.1 relates to persons taking on work or in connection with the provision of a dwelling – whether that is building it from scratch, or converting or extending an existing dwelling. It provides that such a person owes a duty

“…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 the dwelling it will be fit for habitation when completed.”

This duty, which I shall refer to as “the s.1 Duty”, is owed to any person to whose order the dwelling is provided, and to every person who holds or acquires an interest (whether legal or equitable) in the dwelling (s.1(1)(b)). It extends to anyone who arranges for another to take on work, if they do so in the course of a business of that kind, or pursuant to any statutory power (s.1(4)). There is a defence if the person undertaking the work is simply following instructions, but that defence is not available if the person has a duty to warn of defects in the instructions and fails to discharge that duty (s.1(2)).

So what are the developments which are likely to see more DPA claims being brought in future?

A. The New s.2A DPA 

The Building Safety Act 2022 (“the BSA”) made two significant changes to the DPA – or more accurately, one change to the DPA, and one to the Limitation Act 1980 as it applies to DPA claims.

The change to the DPA itself involves the introduction of a new s.2A. s.2A was added to the DPA by s.134(1) BSA. It applies a duty akin to the s.1 Duty to anyone who, in the course of a business, takes on work in relation to any part of “a relevant building” – that phrase being defined as a building consisting of or containing one or more dwellings. This is referred to as “the s.2A Duty”.

The s.2A Duty is owed in the performance of any work (not just constructing, converting and extending). It also applies now not just to work done in connection with the provision of a dwelling, but to work done on a building in which there is a dwelling. This is obviously a very significant enlargement of the s.1 Duty.

While the work need not be in connection with the dwelling (as is required before the s.1 Duty is engaged), it remains necessary under the s.2A Duty for the dwelling itself to have been rendered unfit for habitation by the works. This could be the case, for example, if work were done to ground floor commercial premises situated beneath a dwelling, and having an impact on it.

The test of fitness for habitation will be considered more fully in a future article. However, in Rendlesham, it was held that the requirement is that the property “…must, on completion (without any remedial works being carried out): (a) be capable of occupation for a reasonable time without risk to the health or safety of the occupants: …and (b) be capable of occupation for a reasonable time without undue inconvenience or discomfort to the occupants.” (para.68). It is suggested that work could fail this test more easily than the phrase “unfit for habitation” might at first glance suggest.

Mirroring s.1(4), s.2A(7) extends the s.2A Duty to a person who, in the course of a business which consists of or includes carrying out or arranging for the carrying out of work of the kind mentioned in s.2(1), arranges for another to take on work of that kind.

There are exceptions, including (a) where the work is within the s.1 Duty (s.2A(4)(a)); where the work is expected to cause the dwelling to cease to be a dwelling or to be demolished (s.2A(4)b)); and (as with the s.1 Duty) where the person undertaking the work acts under instruction from another, in which case the duty is treated as discharged (s.2A(5)). Again, that defence is not available if that person had a duty to warn the other of defects in the instructions (ibid).

It is thought that the change made by s.134 – that is, the introduction of the s.2A Duty – is prospective only, i.e. it will only apply to works done after it came into force on 28 June 2022.

B. The New s.4A Limitation Act 1980

The change to the Limitation Act is made by s.135 of the BSA and is one of the BSA’s better-known and more eye-catching provisions.

135 has the effect of extending the limitation period for claims under the DPA – that is, either the s.1 or the s.2A duty – arising after the Act came into force to 15 years.

For DPA claims under the s.1 duty which arose before the Act came into force, the limitation period is now as long as 30 years.

Since time only starts to for DPA claims on practical completion of the work (see ss.1(5), mirrored in s.2A(8)), and since it can take a good few years for a case to come to trial after issue, never mind any appeal, it seems possible that a particular piece of workmanship which is the subject of a claim for breach of the s.1 duty could be the subject of debate in the Courts up to or even beyond 40 years after it was undertaken.

A further notable feature of the extended limitation period for s.1 claims is that it has retrospective effect – in the words of s.135(3) of the 2022 Act, it is to be treated “as always having been in force”. The effect of this is that even claims which had become time-barred before the BSA came into force are revived.

135(5) contains an exception to the extended limitation period. It provides that where an action is brought that, but for ss.(3), would have been barred by the 1980 Act, a court hearing the action must dismiss it if satisfied that it is necessary to do so to avoid a breach of a defendant’s Convention rights. The effect of this would appear to be that if, as a result of an action becoming time-barred under the old regime, steps have been taken which mean that a fair trial is no longer possible, an action must be dismissed.

C. BDW -v- URS [2025] UKSC 21

A third significant shot in the arm for DPA claims came in the form of the decision in this decision of the Supreme Court given in May 2025.

BDW was a claim was brought by a developer against a sub-contractor for damages for the supply of negligent structural design services. It started life, prior to the enactment of the BSA, as a simple claim in negligence. Following the extension of the limitation period for DPA claims introduced by the new s.4A, application was made to amend to include two new causes of action; a direct claim by the claimant against the defendant under the s.1 duty, and another claim for contribution under the Civil Liability Contribution Act 1978 (“the 1978 Act”) should the claimant itself be held liable to residents under a future s.1 claim. That application was granted, but the Defendant appealed.

Two questions arose which were relevant to the scope of the DPA. The first was: does the extended limitation period relate only to claims actually made under s.1, or does it also relate to claims to which s.1 is incidental, such as claims under the 1978 Act, or claims in negligence where the loss claimed was a s.1 liability? The second was: can the s.1 duty be owed to developers, or is it only owed to residents?

In answering both these questions, the Supreme Court adopted the broader of the possible interpretations open to them.

In relation to the first question, Lords Hamblen and Burrows JJSC (with whom Lords Lloyd-Jones, Briggs, Sales and Richards JJSC agreed) observed that a central purpose of the BSA was ensuring that those responsible for building safety defects were held to account, and said at para.107:

“If section 135(3) were restricted to actions under section 1 of the DPA then this purpose would be seriously undermined. The consequence would be that the 30-year limitation period would apply to claims brought by homeowners against a developer under section 1 of the DPA, but would have no relevance to what one may call “onward” claims for contribution or for the tort of negligence brought by that developer against the contractor (whether builder, architect or engineer) directly responsible for the building safety defect, as illustrated by URS’s case on this appeal.”

For this policy reason, as well as reasons emanating from the wording of s.135 itself, the Justices dismissed this particular ground of appeal.

So far as the second question was concerned, the Supreme Court held that there was no reason to read s.1 as requiring a person either to owe, or be owed, duties under the DPA, but not both. There was, the Justices said at para.154, “no inconsistency, or logical fallacy, in saying that a developer can both owe a DPA duty (e g to a subsequent purchaser) and be owed that duty (by the builder/architect/engineer).”

There would appear to be no reason why these lines of reasoning should not apply equally to claims under the new s.2A duty as well.

The central question engaged by BDW was in fact whether damages could be claimed in respect of remedial works which were undertaken by the developer after it had disposed of the buildings in question, and at a time when it was not under any legal liability to effect them. Upholding the refusal of the lower courts to strike out such a claim, the Supreme Court held that there was no bright line principle that losses incurred voluntarily could not give rise to a claim for damages.

This is undoubtedly an important point of principle in the general law, albeit unlikely to arise all that often in DPA claims. However, in this respect too, a possible limitation on such claims has been removed. And the decision in BRS will undoubtedly make developers more likely to undertake remedial works voluntarily than they would have been had the Supreme Court shut the door on the ability to recover the costs of such works.

Conclusion

Drawing the strings together, there is reason to believe that after 54 rather inglorious years on the statute-book, the DPA may be about to come into its own. The BSA has introduced a new duty akin to the s.1 Duty which applies to any work to any building in which a dwelling is located, and given claims under its provisions a greatly extended limitation period; and the Supreme Court has confirmed that s.1 Duty, and the new limitation period, are to be construed widely. Its reasoning seems likely to be equally applicable to claims under s.2A.