The Contractor’s building defects liability in England and Wales

We discuss in this paper in what circumstances can a contractor be found liable for defects discovered by the building occupier several years after project completion, whether by reason of contractual commitments or by reason of tortious duties arising under statute and common law.


1) Introduction

Circumstances where a contractor would hold a defects liability towards an occupier, for defects discovered many years post completion, raise several legal issues which we would develop and analyse under English law. We would here address latent defects, i.e. defects which were not patent at the time of completion since they would have otherwise been discovered. By doing so, we would consider an “occupier” as a human occupier of a building, as per the Building Act 1984, and concentrate on matters related to the construction of a building.

A first issue is whether the occupier is the current owner of the building, or a successive owner to another who may have been the initial construction employer. And whether he is the landlord, or only a tenant, hence does he hold sufficient legal or equitable interest in the building for holding a cause of action against the contractor? For the sake of this paper, we shall consider that the occupier is so enabled, in the sense of the Linklaters Business Services v Sir Robert McAlpine Ltd1 case.

We would analyse the contractor’s liabilities first in contract, then in tort and finally under the Defective Premises (DPA) Act 1972. We would also see how the contractor’s liabilities might be depending on whether defects stem from design, workmanship or materials wrongdoings, and also on what damage they are causing – to others or solely to the building hence only reducing its economic value. We would also look at how the timing of an occupier’s action, several years after completion, might affect the contractor’s liabilities.

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(1) [2010] EWHC 2931 (TCC) [114]