Refurbishment did not create a new dwelling

10 May 2011

Court rules that couple cannot claim for defective work under the Defective Premises Act. Ben Worthington explains

Builders and design consultants involved in housebuilding or refurbishment works will be interested in a recent court case which clarifies the scope of the Defective Premises Act. Section 1 of the Act provides that those “taking on work for or in connection with the provision of a dwelling” must do so in a professional or workmanlike manner and must ensure that the dwelling is fit for habitation.

If, after the works are complete, the dwelling is not fit for habitation, then it is irrelevant that they were undertaken with reasonable skill and care — the homeowner is entitled to damages.

In Jenson v Faux (2011) the Court of Appeal has made an important ruling on the scope of the obligation under section 1 of the Act and the meaning of the words “provision of a dwelling”.

In 2007, Mr and Mrs Jenson bought a property in London. The previous owner had undertaken refurbishment works which included extensions to the roof and kitchen, changes to the layout of some of the first-floor rooms and the conversion of a small cellar into a basement room. 

Mr Faux acted as an interior specialist and project manager for the previous owner.

Some years after the purchase, the Jensons claimed that the basement area was flooding and they brought a claim against Mr Faux, maintaining that he had carried out defective works which had led to water penetration in the cellar which had, in turn, rendered the property unfit for habitation within the meaning of section 1 of the Defective Premises Act.

In a previously unreported case, Saigol v Cranley Mansions (1995), the Court of Appeal had found that section 1 of the Act applied to new dwellings, not existing dwellings. However, in Saigol the Court of Appeal had said that works to an existing dwelling might be so extensive as to justify the conclusion that they had provided a new dwelling, “the identity of which was wholly different from the old.”

The question was, did the works carried out at the Jensons’ home in 2007, before they bought it, result in a new dwelling?

The Jensons, of course, argued that as a result of the works the property had changed to an extent that it could be considered a new dwelling. Mr Faux maintained that a new dwelling had not been created.

In the first instance in the TCC, Mr Justice Ramsey found in favour of the Jensons. But the Court of Appeal said that it was not arguable that works to the house had created a new dwelling. The Act did not, therefore, apply to the works undertaken by Mr Faux.

Lord Justice Longmore noted that there might be cases “within which it would genuinely be arguable that a dwelling had so changed that it had a different identity from before but works of extension or refurbishment would, to my mind, have to be much more substantial than they were in this case...”

The Court of Appeal did not accept that the creation of more space was, in itself, sufficient to create a new dwelling. Nor was the value of the refurbishment works (about £400,000) decisive.

Where does this decision leave the industry, in particular those involved in the building and refurbishment of residential property? The Act still represents a convenient route for redress for purchasers who have no contractual relationship with those who carried out work to the property.

However, had the Court of Appeal ruled against Mr Faux, it would have brought great uncertainty to those involved in residential refurbishments. But the court decided not to widen the scope of the Act, which is limited to refurbishment works which make it a new dwelling, wholly different from the old dwelling.

Ben Worthington is a lawyer at Trowers & Hamlins, who represented Mr Faux

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