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Last edited 09 Feb 2021
Defective Premises Act Zennstrom v Fagot
It is easy to forget that other duties may govern the work of contractors and consultants apart from those set out in their written contracts. In addition to tortious and contractual duties, statutory duties, such as those under the Defective Premises Act 1972 (DPA) may result in liability.
The claimants in the case of Zennstrom v Fagot alleged that the defendants had a duty under the DPA as property developers as they had developed the property and this was not undertaken in a workmanlike or professional manner nor was it fit for habitation. In order for the defendants to come under a duty under the DPA the claimants had to prove that they developed the property ‘in the course of a business’.
Circumstances proved the defendants were not property developers; they were just building their dream home. Compelling evidence that supported this were the bespoke features installed, such as an entertainment system and art work, together with evidence from friends, neighbours and their architect that the house was to be their dream home. Also, significantly, the property did not benefit from an NHBC certificate which it might have, had it been developed by a property developer.
The DPA applies to the provision of new dwellings, extensions or conversions and the defects must be significant to render the dwelling unfit for habitation. This could clearly affect contractors and consultants when constructing/designing residential properties. Whilst contractors and consultants may in their written contracts seek to limit or exclude liability for losses they cannot exclude or limit liability under the DPA to the current or subsequent owners.
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