DEFECTIVE PREMISES ACT APPLIES ONLY TO PROVISION OF NEW DWELLING

In Jenson v Faux [2011] EWCA Civ 423, [2011] All ER (D) 128 (Apr) the Court of Appeal affirmed that the Defective Premises Act 1972 applies only to the provision of a new dwelling and not to the rectification of an existing dwelling. On the facts of the case the refurbishment works were held not to amount to the provision of a new dwelling because the identity of the refurbished dwelling was not ‘wholly different’ from the dwelling as it was prior to the carrying out of the works. This was so notwithstanding the fact that the work affected every floor of the property and cost £400,000. While the Court of Appeal did not rule out completely the possibility that refurbishment works might result in the creation of a dwelling with a ‘wholly different’ identity, it is suggested that this is likely to be a rare conclusion and that refurbishment work is unlikely to fall within the scope of the Act.

The facts

The claimants purchased a house in Battersea, London in November 2007. The defendant ‘took on work for or connection with the house’ in 2003 when the house was occupied by the person from whom the claimants purchased the house. The claimants alleged that they had suffered loss as a result of damage caused by flooding to the basement area. They claimed that the cause of the loss was defective waterproofing applied to the basement.