Buyers Beware: Claims Under The Defective Premises Act

In the case of Desmond Edward Jenson and Sarah Jean Jenson v Spencer Roy Faux [2011] EWCA Civ 423, the question before the Court of Appeal was whether or not refurbishment works to a property can be so extensive, that the dwelling is then considered a new dwelling, as required by the Defective Premises Act 1972 and subsequent case law

Section 1(1) of the Defective Premises Act 1972 ("DPA 1972") provides that:

"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) owes a duty ... to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner ... so that as regards the work the dwelling will be fit for habitation when completed."

The Facts:

In 2003, the freeholder of 105 Leathwaite Road, Battersea, London ("the Property") carried out works to the Property including:

remodeling the loft area (including extending it to support a new glass structure containing an office and guest bedroom); remodeling the first floor to change a bedroom into a second bathroom; gutting the ground floor in its entirety (including replacing the kitchen with a larger one and replacing part of the external wall); and refurbishing the coal cellar in the basement into a shower room, laundry room, cinema and indoor gym. The freehold engaged Spencer Roy Faux ("SRF") to provide services as an interior specialist and project manager.

In 2007, Mr & Mrs Jenson purchased the Property. Ultimately they commenced proceedings against SRF, pursuant to the DPA 1972, as they claimed to have suffered loss as a result of damage caused by flooding to the new basement, allegedly due to problems concerning the waterproofing.

SRF issued an application for summary judgment, claiming that s1 of the DPA 1972 only applies to the provision of a new dwelling and that here, the house was the same dwelling both before and after the refurbishment. Therefore, it did not owe the duties required by the DPA 1972, to Mr & Mrs Jenson.

Mr. Justice Ramsey, in the Technology and Construction Court, found that the question as to whether or not SRF had provided a dwelling was a matter of fact and degree, unsuitable for summary determination, because it could arguably be maintained that the identity of the new dwelling was different from the old dwelling. SRF appealed to the Court of Appeal.

The Issue:

Did the works carried out by SRF amount...