Defective Premises Act 1972

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Defective Premises Act 1972
Act of Parliament
Royal Coat of Arms of the United Kingdom (Variant 1, 2022).svg
Parliament of the United Kingdom
Long title An Act to impose duties in connection with the provision of dwellings and otherwise to amend the law of England and Wales as to liability for injury or damage caused to persons through defects in the state of premises.
Citation 1972 c. 35
Territorial extent England and Wales
Dates
Royal assent 29 June 1972
Commencement 1 January 1974
Other legislation
Relates to Occupiers' Liability Act 1957
Status: Current legislation
Text of statute as originally enacted
Text of the Defective Premises Act 1972 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The Defective Premises Act 1972 (c. 35) is an act of the Parliament of the United Kingdom that covers landlords' and builders' liability for poorly constructed and poorly maintained buildings, along with any injuries that may result. During the 19th century, the common law principle that a landlord could not be liable for letting a poorly maintained house was established, while a long-running principle was that, in practice, builders could not be sued for constructing defective buildings. The courts began to turn against the first principle during the 20th century, imposing several restrictions on the landlord's immunity, but the landlord was still largely free from being sued.

Contents

The Defective Premises Bill was introduced to the House of Commons as a private member's bill by Ivor Richard on 1 December 1971, and given the royal assent on 29 June 1972, coming into force as the Defective Premises Act 1972 on 1 January 1974. The act establishes a duty of care builders and their sub-contractors owe to the occupiers of property they construct or modify, and also establishes a duty of care landlords hold towards their tenants and any third parties who might be injured by their failure to maintain or repair property. The act received a mixed reaction from critics; while some complimented it on its simple nature compared to the previously complex common rule laws, others felt that it was too limited for what was desired to be achieved, and that the wording used was at times both too vague and too specific.

Background

Prior to the passing of the act, builders who constructed defective buildings could not, practically, be sued under tort. [1] At the same time, a landlord who let a dilapidated or defective house could not be sued for injuries suffered by non-tenants, something based first on the "Privity of Tort" principle that was overturned in Donoghue v Stevenson [1932] AC 562 (that if A had a contract with B and in the process injured C, C was prevented from suing A because of the contract with B) and the decision in Robbins v Jones [1863] 15 CB (ns) 221, where Chief Justice Earl said that "a landlord who lets a house in a dangerous state is not liable for accidents happening during the term; for, fraud apart, there is no law against letting a tumbledown house". This immunity was further extended in later cases. [2]

The courts began to turn against this position in the 20th century; the case of Cunard v Antifyre [1933] 1 KB 551 established that a landlord could be liable if the source of an injury emanated from property of which he was in possession, even if the injury happened on land he no longer owned or occupied. In Dutton v Bognor Regis Urban District Council [1972] 1 QB 373, the courts arguably abolished the immunity of the landlord completely. [3] By 1974, this immunity excluded situations where the danger came from premises that the landlord occupied and where the landlord actively created a danger, and only included the landlord, not associated people. [4]

The Defective Premises Bill was introduced to the House of Commons as a private member's bill by Ivor Richard on 1 December 1971, [5] and was not debated at all in the Commons, something the academic lawyer Peter North called "remarkable". There was some debate in the House of Lords, with questions and amendments covering Section 1, but the bill was not substantially amended, something North puts down to the quality of the draft prepared by the Law Commission. [6] The Act was given the Royal Assent on 29 June 1972, and came into force on 1 January 1974. [7]

Act

Duty of care

Section 1 of the Act lays out the duty of care and who it applies to. The duty applies to "A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building)", something including not only builders but also electricians, plumbers and other subcontractors. The duty also extends to those who have statutory powers to arrange for the provision of dwellings, and those who do so in the course of business. This duty is owed to two classes of people; the person ordering the house, and also every person who later takes an equitable and legal interest in the house. [8]

The duty itself is laid out in Section 1(1), and is a duty on the people covered by the act "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 that work the dwelling will be fit for habitation when completed". This is a three-part test, all parts of which must be fulfilled. Those owing a duty can be released from their obligations if they are acting according to the claimant's instructions, under Section 1(2). If they act completely in accordance with the instructions, the duty of care is fulfilled even though the house may not be properly constructed. However, if the claimant instructs the builder to construct a poorly designed and unstable building, the builder has a duty to warn the claimant. [9] Section 2 of the Act excludes "approved scheme" constructions, such as those run by the National House Building Council. [10]

Disposal of premises

Prior to the passage of the Act, the owner of premises who created a danger there disposed of his duty of care when he disposed of the property by selling or leasing it, something North described as both "bizarre" and "capricious in operation, unjust in the result and indefensible in principle". [11] Section 3(1) of the Act, therefore, establishes that where work is done on premises, whatever duty of care may arise as a result of the work to people affected by defects in the work is not disposed of if the property is sold or let. Section 3(2) qualifies this principle by providing exceptions, which are when the property is the subject of a tenancy and when the property has been disposed of (or is in the process of being disposed of) before 1 January 1974, when the Act came into force. [12]

Landlord's duty of care

Prior to the passage of the Occupiers' Liability Act 1957, the general principle was that landlords were not liable for injuries suffered by third parties on their property. The 1957 Act qualified this, providing in Section 4 (repealed by the Defective Premises Act) that where a landlord was obligated by his tenant to repair property and he breached this obligation, third parties injured as a result of the breach would be able to claim providing that the tenant could. This provision was limited; it provided no remedy to the tenant himself, and only applied to lawful visitors, not trespassers. In addition, it only came into effect if the landlord was obliged to repair the property; if he simply had the option to do so, there was no remedy for an injured third party. Similarly, if a tenant failed to inform the landlord of something needing repair, any resulting injury could not be sued upon. [13]

Section 4 of the Act includes new provisions to cover this sort of situation. Section 4(1) establishes a general duty to repair and maintain the property, owed by the landlord to anyone who could reasonably be expected to be harmed by a breach; this includes tenants, their friends and family and also trespassers. This duty applies when a landlord ought to have known of a defect, not just when he has been informed of a defect. Additionally, a landlord who merely has the right to repair property rather than an obligation to do so may still be found liable, if one of the groups described in Section 4 was harmed by their failure to repair. [14]

Miscellaneous

The Act includes a number of miscellaneous points, mainly in Sections 5 and 6. The Act and its provisions are taken to extend to The Crown, which can be held tortiously liable to the extent laid out in the Crown Proceedings Act 1947. It repeals Section 4 of the Occupiers' Liability Act 1957, replacing it with Section 4 of this Act, and unlike the 1957 Act does not allow any provisions or duties to be excluded or restricted. [15]

Commentary and further territorial extent

The Act met a mixed review from academics. North praised it, saying that "The Act admirably disposes of confusion, controversy, illogicality and point-less distinctions", while admitting that the vagueness of much of it left it up to the courts to flesh out the statute. [16] Others were more critical; academic Vera Bermingham pointed out that the exclusion of liability for "approved scheme" buildings under Section 2 at the time included almost all new houses built within the United Kingdom, although these schemes have been much reduced since the 1980s. At the same time, actions brought under the Act are the subject of a six-year limitation period starting on the date the dwelling is completed, regardless of when the defect is discovered, which is a "significant [drawback] in the utility of the [Act]". [10] Academic John Spencer criticised both Section 1 and Section 3, the former for being too vaguely worded and the latter for being too specific. Spencer argues that, because of limitations imposed by the bill's sponsors, the original meaning of the draft bill was changed, and the Act itself goes no further than the existing common law. [17]

The Defective Premises (Northern Ireland) Order 1975 brought identical provisions into force in Northern Ireland on 1 January 1976, with the section covering injuries to third parties excluded. [18]

Related Research Articles

A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

A leasehold estate is an ownership of a temporary right to hold land or property in which a lessee or a tenant has rights of real property by some form of title from a lessor or landlord. Although a tenant does hold rights to real property, a leasehold estate is typically considered personal property.

In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencies. The claimant is the one who seeks to establish, or prove, liability.

<span class="mw-page-title-main">English tort law</span> Branch of English law concerning civil wrongs

English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.

<span class="mw-page-title-main">Misrepresentation</span> Untrue statement in contract negotiations

In common law jurisdictions, a misrepresentation is a false or misleading statement of fact made during negotiations by one party to another, the statement then inducing that other party to enter into a contract. The misled party may normally rescind the contract, and sometimes may be awarded damages as well.

A slip and fall injury, also known as a trip and fall, is a premises liability claim, a type of personal injury claim or case based on a person slipping on the premises of another and, as a result, suffering injury. It is a tort. A person who is injured by falling may be entitled to monetary compensation for the injury from the owner or person in possession of the premises where the injury occurred.

Landlord harassment is the willing creation, by a landlord or their agents, of conditions that are uncomfortable for one or more tenants in order to induce willing abandonment of a rental contract. This is illegal in many jurisdictions, either under general harassment laws or specific protections, as well as under the terms of rental contracts or tenancy agreements.

Premises liability is the liability that a landowner or occupier has for certain torts that occur on their land.

<span class="mw-page-title-main">Landlord and Tenant Act 1985</span> United Kingdom legislation

The Landlord and Tenant Act 1985 is a UK Act of Parliament on English land law. It sets minimum standards in tenants' rights against their landlords.

<span class="mw-page-title-main">Occupiers' Liability Act 1957</span> United Kingdom legislation

The Occupiers' Liability Act 1957 is an Act of the Parliament of the United Kingdom that covers occupiers' liability. The result of the Third Report of the Law Reform Committee, the Act was introduced to Parliament as the Occupiers' Liability Bill and granted royal assent on 6 June 1957, coming into force on 1 January 1958. The Act unified several classes of visitors to property and the duty of care owed to them by the occupier, as well as codifying elements of the common law relating to this duty of care. It also covered the duty owed to parties to a contract entering the property and ways of excluding the liability for visitors. The Act introduced an element of liability for landlords who failed to maintain their properties and were as a result responsible for the injury of a non-tenant, something counter to the previous common law rule in English law. The Act is still valid law, and forms much of the law relating to occupiers' liability in English law along with the Occupiers' Liability Act 1984.

Occupiers' liability is a field of tort law, codified in statute, which concerns the duty of care owed by those who occupy real property, through ownership or lease, to people who visit or trespass. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises. In English law, occupiers' liability towards visitors is regulated in the Occupiers' Liability Act 1957. In addition, occupiers' liability to trespassers is provided under the Occupiers' Liability Act 1984. Although the law largely codified the earlier common law, the difference between a "visitor" and a "trespasser", and the definition of an "occupier" continue to rely on cases for their meaning.

<span class="mw-page-title-main">Occupiers' Liability Act 1984</span> United Kingdom legislation

The Occupiers' Liability Act 1984 is an Act of the Parliament of the United Kingdom that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords had decided that occupiers owed a duty to trespassers, but the exact application of the decision was unclear. The matter was then referred to the Law Commission for a report, and as a result the Occupiers' Liability Bill was introduced to Parliament by Lord Hailsham on 23 June 1983. The Act was given the royal assent on 13 March 1984 as the Occupiers' Liability Act 1984 and came into force on 13 May.

Mitigation in law is the principle that a party who has suffered loss has to take reasonable action to minimize the amount of the loss suffered. As stated by the Canadian Federal Court of Appeal in Redpath Industries Ltd. v. Cisco (The), "It is well established that a party who suffers damages as a result of a breach of contract has a duty to mitigate those damages, that is to say that the wrongdoer cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the injured party." The onus on showing a failure to mitigate damages is on the defendant. In the UK, Lord Leggatt describes the "function of the doctrine of mitigation" as enabling the law

to distinguish between effects on the claimant's financial position which are to be regarded as caused by the defendant's breach of contract and for which damages can therefore be recovered and effects which are attributed to the claimant's own action or inaction in response to the breach and for which the defendant is not liable.

<i>Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board</i>

Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500 is an English land law and English contract law appeal decision. The case, decided by Denning LJ, confirmed positive covenants can supplant privity of contract in contracts to improve land and secondly a covenant should be implied where the contract shows an intention that the obligation would attach to the land. The case thirdly held in that context, a somewhat uncertain description of lands which was capable of being rendered certain by extrinsic evidence was sufficient to enforce the covenant.

<span class="mw-page-title-main">Landlord–tenant law</span> Law that details rights and duties of landlords and tenants

Landlord–tenant law is the field of law that deals with the rights and duties of landlords and tenants.

Nuisance in English law is an area of tort law broadly divided into two torts; private nuisance, where the actions of the defendant are "causing a substantial and unreasonable interference with a [claimant]'s land or his/her use or enjoyment of that land", and public nuisance, where the defendant's actions "materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects"; public nuisance is also a crime. Both torts have been present from the time of Henry III, being affected by a variety of philosophical shifts through the years which saw them become first looser and then far more stringent and less protecting of an individual's rights. Each tort requires the claimant to prove that the defendant's actions caused interference, which was unreasonable, and in some situations the intention of the defendant may also be taken into account. A significant difference is that private nuisance does not allow a claimant to claim for any personal injury suffered, while public nuisance does.

<i>Dutton v Bognor Regis UDC</i> Law case

Dutton v Bognor Regis Urban District Council [1972] 1 QB 373 is an English contract law and English tort law case concerning defective premises and the limits of contract damages. It was disapproved by the House of Lords in Murphy v Brentwood DC and is now bad law except in Canada and New Zealand.

The history of rent control in England and Wales is a part of English land law concerning the development of rent regulation in England and Wales. Controlling the prices that landlords could make their tenants pay formed the main element of rent regulation, and was in place from 1915 until its abolition by the Housing Act 1988.

Rent control in Scotland is based upon the statutory codes relating to private sector residential tenancies. Although not strictly within the private sector, tenancies granted by housing associations, etc., are dealt with as far as is appropriate in this context. Controlling prices, along with security of tenure and oversight by an independent regulator or the courts, is a part of rent regulation.

Warren v Keen is an English Landlord–tenant law case concerning the obligations of both parties. It is still good law and is well known for Lord Denning's ruling on a tenant's duty to use the let property in a tenant-like manner.

References

  1. ↑ Elliott (2007) p.38
  2. ↑ Spencer (1975) p.49
  3. ↑ Spencer (1975) p.50
  4. ↑ Spencer (1975) p.54
  5. ↑ "DEFECTIVE PREMISES BILL (Hansard, 1 December 1971)". Parliamentary Debates (Hansard) . 1 December 1971. Retrieved 3 December 2009.
  6. ↑ North (1973) p.628
  7. ↑ "ROYAL ASSENT (Hansard, 29 June 1972)". Parliamentary Debates (Hansard) . 29 June 1972. Retrieved 3 December 2009.
  8. ↑ North (1973) p.629
  9. ↑ North (1973) p.631
  10. 1 2 Bermingham (2008) p.126
  11. ↑ North (1973) p.633
  12. ↑ North (1973) p.634
  13. ↑ North (1973) p.635
  14. ↑ North (1973) p.636
  15. ↑ North (1973) p.637
  16. ↑ North (1973) p.638
  17. ↑ Spencer (1975) p.56
  18. ↑ "DEFECTIVE PREMISES (NORTHERN IRELAND) ORDER 1975 (Hansard, 17 June 1975)". Parliamentary Debates (Hansard) . 17 June 1975. Retrieved 3 December 2009.

Bibliography

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