Bole & Anor v (1) Richard Money (t/a Richard Money Associates) (2) Huntsbuild Limited [2009] EWCA Civ 1146  

When determining whether there has been a breach of section 1 of the Defective Premises Act 1972 (DPA), it is appropriate to consider whether the dwelling as a whole was unfi t for habitation. It is not necessary to consider every defect individually and ask whether that defect, on its own or in conjunction with other defects, rendered the dwelling unfi t for habitation. So held the Court of Appeal, in this case.  

The claimants purchased a new-build house in September 2001 for £330k. Several months after they moved into their new home, cracks started to appear. The claimants’ appointed expert discovered that, in order to construct the house, a row of trees had been removed from the site, and the strip foundations had not properly taken account of the remains of the tree roots. The claimants brought a claim against  

Huntsbuild, the contractor who built their home, and against Richard Money Architects (RMA). Their claim against Huntsbuild was for breach of contract and for breach of section 1 of the DPA. Not having a contract with RMA, their claim against it was brought solely for breach of section 1 of the DPA. Huntsbuild and RMA joined forces in arguing that inadequate foundations were not enough to make the house ‘unfi t for human habitation’, the test under the DPA. They pointed out that the claimants had lived in the house for seven years and that it was therefore clearly fi t for habitation.  

The court at first instance concluded that Huntsbuild was in breach of contract for failing to build the foundations to the depth required by the NHBC Standard and was therefore in breach of the DPA. The court also found that RMA was negligent for failing to specify a minimum depth of 3m for the foundations. Having established that Huntsbuild had not built in a workmanlike manner, and that RMA had acted negligently, the only remaining question was whether the house was fi t for habitation. The court at fi rst instance concluded that it was not and gave guidance on how to determine whether a property is unfi t for habitation within the meaning of the DPA:  

  1. The finding of unfi tness for habitation when built is a matter of fact in each case. 
  2. Unfitness for habitation extends to “defects of quality”, rendering the dwelling unsuitable for its purpose, as well as to “dangerous defects”.
  3. Unfitness for habitation relates to defects rendering the dwelling dangerous or unsuitable for its purpose, and not to minor defects.  
  4. Such a defect in one part of the dwelling may render the dwelling unsuitable for its purpose and therefore unfi t for habitation as a dwelling house, even if the defect does not apply to other parts of the dwelling. This is also the case under the Housing Act 1985. The court noted that, in determining whether a house was unfi t for habitation, it was instructive (although not determinative) to look at section 604(i) of the Housing Act 1985, which provides a defi nition of unfi tness for human habitation for the purposes of that Act and provides a “useful checklist as to the type of defects which on the facts in a particular case may be so fundamental as to be considered to render a property unfi t for habitation under the DPA.”  
  5. The DPA will apply to such defects even if the effects of the defect were not evident at the time when the dwelling was completed.  
  6. In considering whether or not a dwelling is unfi t for habitation as built, one must consider the effect of the defects as a whole.  

The judge concluded that, in the circumstances of this case, the house was unfit for habitation as built. RMA appealed.  

The Court of Appeal concluded that, in a case where the defect is fundamental to the stability of the dwelling, and does not raise a merely cosmetic or stylistic issue, the fact that it is necessary to vacate for a long period while the remedial work is carried out is likely to be highly material to whether the defect renders the dwelling unfi t for habitation. There may be cases where it is irrelevant, but this was not one of those. The court agreed that it might have been better if the judge had explained what he meant by a dwelling being “unfi t for its purpose”, but nevertheless it was clear that the judge had meant that defects that render a dwelling unfi t for its purpose are defects that render it unfi t for habitation: “The obvious purpose of a dwelling is for it to be occupied and inhabited safely and without inconvenience.”  

In relation to the second ground of appeal, the court held that the judge was not obliged to approach the question of whether there had been a breach of section 1 of the DPA by considering each defect individually and asking whether that defect, or indeed, that defect taken in conjunction with other individual defects, rendered the dwelling unfi t for habitation. He was entitled to ask himself whether the dwelling as a whole was unfi t for habitation. In reaching his conclusion that it was unfi t for habitation, the judge had rightly taken into account all the defects and the fact that they were caused by a fundamental defect: namely, the inadequacy of the foundations.  

In relation to the third ground of appeal, the court accepted the premise that damages may only be awarded for damage that is contemplated by the statute. As a result, the claimants were only entitled to foreseeable loss and damage fl owing from the fact that the dwelling was unfi t for habitation. The court could not, however, accept that this led to the conclusion that the judge should have awarded the claimants less than the agreed cost of remedying all the defects that were attributable to the inadequate foundations. He was entitled to hold that what rendered the dwelling unfi t for habitation was the fact that the foundations were fundamentally defective, and that this defect had caused widespread defects in the superstructure and indeed all the visible defects on which the claimants relied. In these circumstances, he was entitled to conclude that the cost of remedying all the defects attributable to defective foundations was a foreseeable consequence of the breach of section 1.  

To read the judgment, go to http://www.bailii.org/ew/cases/EWCA/Civ/2009/1146.html