Defective Premises Act Claims; The Fitness for Habitation Test

In the second article in his three-part series on the Defective Premises Act 1972, Andrew Butler KC considers the statutory test of fitness for habitation and examines how the courts have interpreted what is required for a dwelling to meet that standard.

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In an earlier article on this topic, I set out various factors which seem to herald a likely growth in the importance and frequency of claims under the Defective Premises Act 1972 (“the DPA”). In this article, I propose to consider the statutory test of fitness for habitation and what is required to satisfy it.

As a reminder, the duty under s.1 is:

“…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 applies to anyone taking on work on or in connection with the provision of a dwelling. As I explained in the previous article, the new s.2A imposes an analogous duty on anyone who takes on work in relation to any part of a building which contains one or more dwellings.

The form of words is unusually clunky, as statutory tests go. The easiest route to interpretation is perhaps to start at the end; the goal is that the dwelling should be fit for habitation when completed. If it is (or, more accurately, at that time was) fit for habitation, that is the end of the enquiry. But if it was not, that does not itself prove breach; one then has to work back to investigate the reason for the want of fitness. It is only if it is a result of work done in an unworkmanlike or unprofessional manner, or by the use of inappropriate materials, that breach of the statutory duty is established.

Clearly, there might be reasons unconnected with the build itself which might render a dwelling unfit for habitation; for example, if a perfectly well-constructed dwelling were to be built on land which renders it particularly vulnerable to subsidence, or in an unsuitable environment, such as adjacent to a toxic chemical plant or landfill site. Nevertheless if work was undertaken which ought to have identified such a problem – such as a survey – it is likely that that would come within the phrase “in connection with the provision of a dwelling” so as to contravene the statutory duty, whether or not there would be some other cause of action available besides. One advantage of the statutory duty is, of course, that it is owed not just to the first purchaser who might have been owed a tortious or contractual duty as well, but to all who subsequently acquire a legal or equitable interest in the dwelling.

The phrase “as the case may be”, in the dichotomy between “workmanlike” and “professional”, is odd. Presumably this refers to what perhaps now feels like a rather dated distinction as to whether the work in question was done by a workman, or a professional person; perhaps a useful rule of thumb here is that physical work would be judged by the yardstick of being workmanlike, whereas matters of planning or design would be judged by the yardstick of being professional. At any rate, although the wording is rather compressed, it does not seem to have presented any difficulty in practice.

What, then, does fitness for habitation actually connote? The leading case on the meaning of the phrase is Rendlesham Estates -v- Barr [2015] 1 WLR 3663.

In Rendlesham, a group of owners of a substantial block of flats in Leeds brought a claim against the company who constructed the building for the cost of repairing defects to the structure of the building and within the flats themselves. The Judge described the problems as consisting of:

“leaks above the walkway on the fifth floors, leaks from the penthouse balconies into the flats below, leaks into the voids above the walkway soffits, the appearance of mould and condensation in a number of apartments and in the common parts and, in a great many apartments, there were leaks and excessive mould in the shower cubicles.”

Much of the decision was concerned with the meaning of the word “dwelling”, and whether it meant the entire building, or simply the individual flat of each Claimant. The Judge (Edwards-Stuart J) decided that it had the narrower, latter meaning; but, he held, the Claimants could nevertheless recover the cost of work to the common parts on the basis that the work which had led to the defects was work done “in connection with the provision of a dwelling” and therefore fell within the statutory duty.

However, the main interest in the case for present purposes is what it says about the test of fitness for human habitation. As articulated there, 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: where a dwelling is or is part of a newly constructed building, what is a reasonable time will be a question of fact (it may or may not be as long as the design life of the building); and (b) be capable of occupation for a reasonable time without undue inconvenience or discomfort to the occupants.” (para.68).

In deciding whether that test is met, the Judge went on, the Court is required to consider “all the classes of people who might reasonably be expected to occupy it” (para.73). The Judge held that “this may include, for example, pregnant women, babies and children, and those who suffer from common ailments or allergies, such as asthma or hay fever.” The Judge declined to express a view on the position of those suffering from more severe or unusual disabilities.

Notwithstanding the Judge’s formulation (“this may include”), it would obviously be an unusual dwelling where occupation by people within those categories could not reasonably be contemplated, so in practice the phrase “fit for habitation” appears to mean fit for habitation by any of these classes of persons.

So it seems that it may be surprisingly easy for a dwelling to fail the test of fitness for habitation – defects which might be thought to be irritating, but capable of being tolerated, may well cause it to do so. In Rendlesham itself, the properties had defectively installed shower units which caused leaks; these were held to cause the properties to fail the statutory test (although it should be observed that the leaks caused damp and mould growth, and it was perhaps this, rather than the leaks per se, which tipped the balance).

In Harrison -v- Shepherd Homes [2011] EWHC 1811, defective foundations rendered the properties unfit for human habitation, even though at least some of the properties had not suffered any material damage. In Bole -v- Huntsbuild (2009} 124 Con LR 1, there is dicta which suggests that having a garage door which could be locked was enough to cause a dwelling to fail the statutory test; Dyson LJ’s precise words were

“The fact that the doors to the garage could not be locked was a relevant but not the only consequence of [the defendant’s] unprofessional work, which made the house unfit for habitation. Part of living in a house is to be able to maintain the security of the home…”

However, on the facts of that case there were multiple defects, and it must be doubtful whether it would be safe to rely on something like an unlockable garage door in isolation.

In Keating on Construction Contracts (12th Edn., 2025), the authors posit the example of a dwelling in a building in which the lift suffers from frequent breakdowns – it is said that such serious inconvenience “may render a dwelling unfit for habitation” (para.15-005). These dicta, and the need to anticipate a considerable range of sensitivities as articulated in Rendlesham, suggest that it may not be as difficult to satisfy the statutory test as the phrase “fit for habitation” might at first suggest.

The question is whether the dwelling is fit for habitation “when completed”. While it is of course possible that defects present at the date of completion will not become apparent for many years afterwards, it is the time of completion which is key. Thus the statutory test seems to require that the dwelling be fit for habitation by all foreseeable occupiers as at the moment of completion. A dwelling cannot oscillate between meeting the test and failing it, depending on who is in occupation at the time.

In theory this means that an occupier or interest-holder could bring a claim because of a defect which does not trouble them at all, or which has not even caused any damage, but which might prove inconvenient to a notional future occupier of a particular kind.

At first sight it might be thought unsatisfactory that a homeowner could maintain a claim in respect of defects which have caused no damage and/or do not bother them, but it is suggested that it is not. To take the Keating example of a Council block with unreliable lifts, it would be odd if some dwellings within that block were considered fit for habitation because they happened to be occupied by one class of resident (say, young adults with no physical disabilities), but some not because they were occupied by other classes (say, families with young children, or the elderly). Whether the test of fitness for habitation is met should not depend on the subjective characteristics of the claimant. The difference should be reflected in the award of damage (which will be the subject of the final article in this series); damages for physical discomfort or inconvenience would be available to the latter kind of occupier, but not the former. To the extent that the defects cause a diminution in value, that would be a loss recoverable by all.