Spec Finish

Legal www.thefis.org 13 Whenever you work on a building, a duty of care is almost certainly created. The extent of that duty and who you owe it to depends on many circumstances – your contract, statute and common law. You need to be aware of the impact on you of the Defective Premises Act 1972 (DPA) if you are working on “dwellings” i.e. domestic buildings in England or Wales. THE DEFECTIVE PREMISES ACT 1972 – CONTRACTORS BEWARE! T He DPA doesn’t apply to buildings used for commercial purposes but it would apply to commercial landlords letting properties for the purpose of tenants living in them. The DPA is a short but powerful read! It packs a punch. Your duty of care The DPA imposes a duty on you to “see that the work which he takes on is done in 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”. It currently covers “ construction, repair, maintenance or demolition or any other work done on or in relation to the premises... ”. However, note that the new Building Safety Bill (BSB), which is expected to receive Royal Assent later this year, will extend the remit of the DPA to include ‘refurbishment’ works. You owe that duty of care to anyone employing you and also to anyone who acquires an interest in the building (that would include, for example, a landlord, a tenant or someone providing the funding). That means anyone with an interest in the dwelling can potentially sue you. If you are contracted to do work for an employer, and contractually you are obliged to do it in accordance with the employer’s instructions and you follow them, that discharges your duty of care except where you owe a duty to your employer towarn himof any defects in the instructions and you fail to do so . So it is not good enough to say: “I did what I was told to do”. If you know something is wrong with what you are being told to do you must tell your employer that his instructions are defective. And please do it inwriting so there is a record that you have done so. So, there is an obligation on the landlord to make the building ‘fit for habitation’ – that means the tenant must be able to live in it. What might prevent a property from being fit for occupation will depend on the circumstances but it might be, for example, that there are structural, electrical or gas risks. Health and safety are usually the ‘big ticket’ items. Claims against a landlord in these circumstances are almost inevitable. What will the landlord do? He will look to see who was involved in any construction, repair, maintenance, demolition or any other work done that has given rise to the claim. He will look to see whose work has failed the test of having been “done in workmanlike or, as the case may be, professional manner, with proper materials” . If that is you, expect to be held liable. Are there any exclusions to these obligations? Yes, if the dwelling is built in terms of a scheme approved by the Secretary of State and it is stated in a document (in an approved form) that the requirements as to design or construction imposed by the scheme have, or appear to have, been substantially complied with. So, in limited circumstances only. How long you might be liable for The liability period is currently either six years from the date the dwelling was completed, or if there have been subsequent repairs carried out, six years from the time the repairs were finished. As a general rule, the BSB will extend these liability time periods from six years to 15 years, which will be applied prospectively and retrospectively. This liability period extension and the DPA ‘refurbishment’ expansion are intended to come into force within 12 months of the BSB receiving Royal Assent. The one exception is for new dwellings constructed before this liability period extension comes into force, in which case the liability period will be a retrospective 30 years. This coupled with the extensive news at coverage around cladding curently, the stakes are high. There is concern about “proper materials” being used or contractors being told by employers to do something where the instructions they get are defective and will result , if the instruction is carried out, in the dwelling being unfit to live in, or causing injury to someone or their property. You must speak out and warn of the potential impact . It is likely your insurers will not offer protection if you don’t. I suspect we will see more issues arising around all of this in spite of the fact that the Act dates back to 1972 and probably hasn’t caught your eye to date. KarynWatt, partner and Head of Infrastructure at Anderson Strathern