Defective premises

The Defective Premises Act 1972 imposes a duty of care on landlords and people involved with constructing or working on a dwelling. An affected person can make a court claim for breach of a duty under the Act if:

• they suffer injury or property damage caused by a landlord's failure to fix relevant defects in a property

• a dwelling is unfit for human habitation due to construction or repair defects

A person can claim for damages. Damages might put them in the same financial position they would have been in had they not experienced the breach of duty.

Scope of claims

Repairs claims are normally covered by contract law where the tenant can only claim against their landlord. For example, action under section 11 Landlord and Tenant Act 1985.

A claim using the Defective Premises Act means that an affected person might be able to make a claim against someone other than a landlord. Where construction or repair defects make a property unfit for habitation, a person might be able to make a claim against a:

• builder

• surveyor

• property developer

A person other than the tenant might be able to make a claim when a landlord does not repair a relevant defect and they experience injury or property damage. This includes:

• visitors to the property

• members of the tenant's household

• people with a legal interest in the property

Under section 4 Defective Premises Act 1972 a landlord can be liable for personal injury or property damage caused by relevant defects in the premises.

A landlord's duty of care applies where they have an obligation for the maintenance or repair of the premises. The duty applies to all land let. For example, it includes a patio or front garden.[1]

A landlord has a duty of care to people who might reasonably be expected to be affected by a relevant defect. This includes:

• tenants

• visitors to the property

• members of the tenant's household

Where property damage or injury results from a relevant defect, the affected person can make a claim against the landlord. They might have a claim if the landlord:

• knew about the defect and did not remedy it

• did not do enough to find out about potential defects

What is a relevant defect

A relevant defect is disrepair which the landlord is responsible for correcting.[2] A landlord's obligation for maintenance or repair might come from:

• express terms in the tenancy agreement

• implied terms in the agreement, for example from section 11 Landlord and Tenant Act 1985

Where a landlord has a right in the tenancy agreement to enter the premises to carry out repairs or maintenance this can become part of the landlord's duty of care.[3] For example, a tenancy agreement might give a landlord the right to enter the property to fix a broken window. For the duty of care, the landlord is treated as if the agreement requires them to fix a broken window, and so it can be a relevant defect.

A defect is only relevant if it is caused by disrepair. A defect is not relevant simply because it is hazardous or unsafe.[4] For example, a broken window might be a relevant defect, but a single-glazed window that might be at risk of breaking is not.

A defect is only relevant if it is discoverable.[5] A defect is not relevant where it is built into the property due to poor design.[6] It does not matter who was responsible for the defect. For example, a landlord was liable for injury when a workman slipped on a staircase where the tenant removed the bannister after the tenancy started.[7]

When a landlord is in breach of their duty

The landlord is in breach of their duty of care if they know or ought to know about a relevant defect and fail to rectify it.

A landlord should take steps to thoroughly inspect for defects when they are aware a problem might exist.[8] For example, a landlord might be liable if they fail to inspect floor stability when they should reasonably have known from its age and construction that it could be unsafe.[9]

The occupier does not have to inform the landlord of the problem.[10] This is different from section 11 Landlord and Tenant Act 1985 where the landlord is not liable to carry out a repair until they have been notified.

Making a claim

A person should seek legal representation if they wish to make a court claim under the Defective Premises Act.

The Law Society website has a find a solicitor tool.

If a dwelling is not fit for habitation due to defective work, an affected person can bring a court claim. A claim can include damages for economic loss and for loss of enjoyment of the premises.[11]

Duty of care in constructing and working on dwellings

Section 1 Defective Premises Act 1972 requires anyone involved in the construction of a dwelling to:

• use proper materials

• do the work in a professional and workmanlike manner

• make sure the dwelling is fit for human habitation when completed

This includes landlords.

The duty covers new build properties, conversions, and enlargement of existing buildings, as long as a new dwelling is provided.[12] For example, a new house on an estate, or a flat in a new block.[13]

The duty also applies when work is done badly or necessary materials have been missed, such as a damp proof course in a new wall.[14]

Section 2A Defective Premises Act 1972 extends the duty to apply to work in relation to any part of a relevant building. A relevant building is a building consisting of one or more dwellings, and includes mixed use properties where only one use is residential. It does not have to be work providing a new dwelling. This means the duty applies to:

• works to existing dwellings

• work to any part of a relevant dwelling

• work to buildings containing one or more dwellings

For example, if cladding is applied to an industrial building the impact on fire safety for a residential dwelling in the same building might mean the duty has been breached.

The section 2A duty applies to work completed on or after 28 June 2022. It only applies to work in the course of a business. It does not include work an individual does on their own or someone else's dwelling.

When a dwelling is unfit for habitation

The dwelling should be fit for human habitation when the works are completed.[15] Fitness is defined in common law.

A property is unfit for habitation if it is impossible to live there. For example, where an occupier's health might be seriously affected or if they are at risk of physical injury or harm.

A dwelling might be unfit for habitation if it:

• has structural issues

• has damp or black mould

• is infested with pests, such as rats or bugs

• does not have adequate drainage, sewerage or water supply systems[16]

• is not safe to occupy, for example if there are gas or electrical safety risks

Whether a dwelling is unfit for habitation depends on the facts of each case.[17] The definition should keep pace with modern standards. For example, a modern flat might be unfit if there is an unacceptable risk of fire causing injury from combustible cladding.

Who has a duty of care

The duty extends to anyone engaged in or connected with the work.[18] This can include:

• landlords

• builders and developers[19]

• architects and surveyors

The person who carries out or is connected with the work must ensure that the work is done properly. They cannot argue that it was reasonable to believe that the work was adequate.

Where the person who owns the dwelling owes a duty, they cannot escape liability by disposing of the property.[20] For example, by selling or letting out the property. This means a landlord can remain liable for works carried out before the start of a letting. This only applies to tenancies and acts of disposal that started on or after 1 January 1974.

Who can make a claim

A court claim can be made by:

• the person for whom the property was provided, such as the initial owner

• subsequent tenants and owners

• anyone else who has a legal or equitable interest in the property

A person might have an equitable interest if they have contributed financially to the purchase of the property but are not the legal owner.

Licensees usually are not owed the duty as they have no interest in the property

Time limits for making a claim

For new dwellings completed before 28 June 2022, a claimant has 30 years to make a claim from when the building's construction was completed.[21] If the original parties involved in construction complete repair works on the property and they were not successful, the time runs from when the repairs were completed.[22]

For new dwellings completed on or after 28 June 2022, a claimant has 15 years to make a claim from the when the work was completed. This also applies to any refurbishment or remedial work completed on an existing building after 28 June 2022.[23]

Making a claim

A person should seek legal representation if they wish to make a court claim under the Defective Premises Act.

The Law Society website has a find a solicitor tool.

Defective Premises Act claims are usually brought in addition to claims under section 11 Landlord and Tenant Act 1985 or other repair and safety legislation. The Defective Premises Act can be used to support claims for breach of contract or negligence.

Repairs under section 11

A landlord has a duty to fix disrepair where they are liable under section 11 Landlord and Tenant Act 1985.

Find out more about a landlord's repair responsibilities.

Fitness for human habitation

A landlord has a duty to deal with hazards that make a property unfit for habitation. These do not have to be caused by disrepair.

Find out more about a landlord's fitness for human habitation obligations.

Negligent repairs or construction

A landlord or builder is negligent when they:

• fail to do something that a reasonable person would have done

• do something that no reasonable person would have done

The person who is negligent might be liable to pay compensation.

Find out more about injury or damage caused by negligence.