Anyone involved in the construction of a residential property – such as a developer, architect or contractor – has a duty to carry out their work in a workmanlike or professional manner, such that the property is “fit for habitation” upon completion (section 1(1)). This duty is owed to any person who commissions the construction of a residential property and any person who subsequently acquires a legal interest in it.

Fitness for habitation is a question of fact in all cases. However, the DPA generally requires that properties meet basic safety standards, are sufficiently served by basic utilities and are free from what may be life-threatening defects.

The Building Safety Act 2022 (the BSA) significantly extended the statutory limitation period in which claims may be brought under the DPA. Previously, claims could be brought up to 6 years following completion. Now, following the BSA, the limitation period has been extended to 15 years for developments completing after 28 June 2022 (being the date the operative provisions of the BSA came into force) and to 30 years for developments which completed before that date.

The justification behind this is, at its core, to give property owners and residents the ability to seek recourse in respect of dangerous fire safety defects. However, the scope of the DPA goes well beyond that and covers a wide range of issues, which might include structural issues and defects causing material water ingress, etc. The recent case of Vainker and Another v Marbank Construction Ltd and Others [2024] EWHC 667 (TCC) decided that defective glass balustrades within a residential home posed a serious health and safety risk and rendered the property unfit for habitation.

Parties cannot 'contract out' or otherwise restrict their liability under the DPA (section 6(3)). The DPA therefore offers claimant parties a valuable route to claim from those involved in residential development – particularly where the applicable contractual and other limitation periods may otherwise have expired.

The DPA has been in force for many years. Since the BSA shone light on it and enhanced its reach, however, we are inevitably seeing an increased number of claims where the DPA is cited. As the law currently stands (by virtue of the decision in URS Corporation Ltd v BDW Trading Ltd [2023] EWCA Civ 772), those facing liabilities under the DPA can rely equally on its provisions for the purposes of pursuing recovery claims against other parties which are similarly exposed.

In terms of mitigating against the risk of claims under the DPA, or otherwise best positioning for when claims do arise, the same practical steps as for any other claims will apply. However, particular attention should be given to the following:

• Maintain good records. Specifically, it is important to be able to demonstrate the nature and scope of responsibilities, both in terms of the overall construction and within the supply chain. Comprehensive contractual documentation, design and specification details, contractual instructions, meeting minutes, etc, can all be key.
• Amend document retention and archiving policies (both physical and electronic), as applicable, to reflect the extended periods of potential exposure.
• Maintain adequate insurance, similarly mindful of the extended periods in which claims may be brought.
• Know your supply chain, with possible recovery claims in mind. Carry out periodic credit checks and obtain details of insurance. On the latter, there will often be contractual provisions requiring adequate insurance to be maintained during the works and for a period post-completion.

If you or your business would like to know more about the DPA and the BSA, the DACB Construction team will be happy to help.