Limitation Under The Defective Premises Act Is Now Up To 30 Years ' Understanding And Mitigating The Risks Posed

• Published date: 25 January 2023
• Subject Matter: Real Estate and Construction, Construction & Planning
• Law Firm: Weightmans
• Author: Alex Marler

What are the issues around the limitation periods under the Defective Premises Act being extended?

The Building Safety Act 2022 significantly extended the limitation periods under the Defective Premises Act 1972.

This retroactive change creates a risk that those involved in designing, building and working on dwellings may face stale claims that they lack the evidence to defend. What are the issues, and how can they be mitigated?

New limitation periods under the Defective Premises Act

The Building Safety Act ('BSA') was born from the tragedy of the 2017 fire at Grenfell Tower and came into force on 28 June 2022. It brings in far-reaching changes to building safety law and oversight.

Some of the BSA's provisions are yet to come into force - but one major change came in immediately, and its effects are already being felt: the extension of limitation periods for Defective Premises Act ('DPA') claims. It is important to note that this applies to any and all DPA claims, not just those relating to fire safety.

As of June 2022, the new limitation periods for DPA claims are:

• 15 years for claims regarding works completed after 28 June 2022;
• 30 years for claims regarding works completed before 28 June 2022.

In addition, there is a one-year 'grace period' (to 28 June 2023) for claims close to limitation when the BSA came into force.

A further change brought in by the BSA is that DPA claims can now be brought in relation to defective work to existing premises (previously the DPA applied only to the 'provision', i.e. creation, of new dwellings.

A challenge for the construction industry - document retention

The DPA allows a claim to be made against a wide range of individuals and businesses involved in creating (and now also working on) dwellings that have defects making them unfit for habitation (which the courts have consistently interpreted widely).

Until last year, the limitation period under the DPA was six years - and businesses may, quite reasonably, have based their document-retention policies on this timeframe.

The position has now changed - and quite significantly. 30 years is an unusually long limitation period - and it is also unusual for new legislation to have retrospective effect.

What does this mean for developers, contractors and the myriad professions involved in construction work (architects, engineers, QSs, etc)? It means that they face claims for current work far into the future, and also claims for work undertaken as far back as the early '90s...