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Duty to build dwellings properly

This content applies to England & Wales

Action that may be taken where a problem occurs with the construction, design or planning of a property.

Duty for people who carry out work to a property

Under section 1 of the Defective Premises Act 1972, people who carry out work to a property on or after 1 January 1974, or who are connected with such work (for example landlords, builders, architects, surveyors, and specialist subcontractors), are under a duty to ensure that:

  • it is done in a professional manner
  • it is done using proper materials, and
  • it is fit for habitation when completed.

The courts have held that the duty does not extend to approved inspectors in the performance of their statutory functions to ensure compliance with building regulations.[1]

Fit for habitation

The term 'fit for habitation' is not defined in the Act and it cannot be assumed that it has the same meaning as 'fit for human habitation' of section 604 of the Housing Act 1985. It is probable that the common law definition will apply. This has been defined by case law and includes:

  • safety for occupation
  • sufficient water supply
  • free from infestation by bugs or pests
  • adequate drainage
  • free from infection.

This is not an exhaustive definition. It will depend on the circumstances of an individual case whether a particular defect renders the accommodation unfit for habitation.

Extent of the duty

The duty in section 1 is a strong one. The person who carries out (or is connected with) the work must ensure that the work is done properly. S/he will not be able to argue, as a defence, that it was 'reasonable' to believe that the work was adequate.

The duty is owed to:

  • the person for whom the property was provided
  • subsequent tenants and owners, and
  • anyone else who has a legal or equitable interest in the property.

Licensees are probably not covered because they have no interest in the property. They usually have only a personal right to occupy, unless they can show they have an equitable interest. A person may have an equitable interest if, for example, s/he has contributed to the purchase of the property financially but is not the legal owner.

The duty is also applicable in cases of omission when carrying out works (such as failing to incorporate a damp proof course in a newly built wall) or if that work has been carried out badly.[2] If the work for the provision of a dwelling was part of a larger development carried out under the same contract, it was arguable that all work done in the development was done in connection with the provision of the dwelling so that work carried out to common parts, which rendered the dwelling unfit for habitation, would be covered by the duty.[3]

The occupier, or other person with a legal or equitable interest in the property, does not have to notify the person who carried out (or is connected with) the work of the defect in order for her/him to be liable.

It remains uncertain whether an action can only be taken in the event of personal injury/damage to the property or if economic loss (ie reduced resale value for owners) is sufficient.

Extension works or refurbishment

The Court of Appeal held that section 1 is only directed to the provision of a new dwelling. For the duty to apply to extension works or refurbishment carried out on an existing building, the work must be so substantial as to constitute the 'provision of a new dwelling'.[4] The Court said that the extent and cost of the works would not be decisive. There might be cases where a small amount of work would be required to create a separate dwelling which would fall within section 1, but there could be very extensive works to a house which would not change its identity.

Exception to section 1

The duty under section 1 of the Defective Premises Act 1972 does not apply to properties built or first sold under the terms of a scheme approved by the Secretary of State that provides insurance cover for defects in the state of the building.[5] The only scheme currently approved is that of the National House Building Council, which covers virtually all private residential developments except conversions. The exempt properties should be covered by a warranty and insurance policy. In effect this means the duty in the private sector is only applicable to cases of conversions and alterations where the work is so substantial to constitute the 'provision of a new dwelling'.

[1] Lessees and Management Company of Herons Court v (1) Heronslea Ltd (2) TNV Construction Ltd (3) National House Building Council (4) NHBC Building Control Services Ltd [2019] EWCA Civ 1423.

[2] Andrews v Schooling (1991) 23 HLR 316, CA.

[3] Rendlesham Estate Plc and others v Barr Ltd [2014] EWHC 3968 (TCC).

[4] Jenson v Faux [2011] EWCA Civ 423.

[5] s.2 Defective Premises Act 1972.

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