Watch out for the tentacles: Defective Premises Act

Mr and Mrs Bole have a nice house in a lovely spot in Little Stukeley, Huntingdon. Or rather, it will be lovely once the duff foundations are put right … and once they have recovered from their court battle with Huntsbuild, the contractor, and Richard Money Associates, the engineer that advised it about the foundations.

Seemingly, the experts brought in by all parties agree that the cracking in the lovely house was caused by heave “resulting from the inadequate depth of the foundations”. Apparently, before construction began, a willow tree and row of conifers were removed. In that case, said the house occupier to Huntsbuild and Richard Money, you’re both liable for the cost of repairs. They relied in part on the Defective Premises Act.

When you or I find that a dwelling that we “have an interest in” has a tricky defect we are entitled to do a bit of detective work to see who “took on work” for the dwelling or even acted “in connection with the provision of a dwelling”. The reason is that those who take on work have a duty to see it is done in a workmanlike manner. You might immediately see that the tentacles reaching and grasping for those who “took on work” can reach round a number of corners, creeks and alleyways. The architect, the engineer, the QS, the odd consultant, together with the contractor and subcontractor, are all in the firing line. The key point in all this is that if the defect in the dwelling means that the place is “not fit for habitation”, watch out for the tentacles.

And watch out for the bill. It will take upwards of £1m to sort out Mr and Mrs Bole’s dwelling.

Let me tell you the story of the trial. The builder took the unsurprising position that “it was not me, guv”. All it did was take advice about the foundations and obey it. The engineer admitted it had given advice but pointed a finger at the builder for not following it. Yes, the drawing showed the depths for the strip foundations but dear me, these were “minimum depths”. On top of that, they said it was up to the builder to “look for evidence of desiccation while excavating”.

The engineer admitted it had given advice but pointed a finger at the builder for not following it. Yes, the drawing showed the depths for the strip foundations but dear me, these were ‘minimum depths’

The builder and consultant added that duff foundations were not enough to make the house “unfit for human habitation”. That’s because Mr and Mrs Bole had lived in the place since 2001. Do you think that is a good point? After all, the test is whether the Bole’s home was unfit to be lived in. Those words might suggest that the place has to be in the state of a crofter’s cottage abandoned before the war.

Well, that’s not right. If, say, one bedroom in the house admitted damp and was unusable, the house is unfit for habitation, so too if the support from adjoining land might soon fall away. The house is unfit for habitation if there is a “not far distant doom”.

So, the builder engaged the consulting engineer to take samples, produce a report and make recommendations. Four trial pits were dug. That is a professional approach. So too was the engineer’s report. For example, it said the foundations had to go at least 500mm below the last evidence of roots or desiccation of the clay.

Can you see where things can now go wrong? The big hole in the recommendations of the engineer is what it left to the builder to decide upon. The idea that the foundations were to be 500mm below the signs of desiccation was, said the court, impractical as an instruction because a site operative could not be expected to recognise it. The obligation of the engineer was to prescribe the appropriate depth.

The builder was liable to Mr and Mrs Bole under their contract because he had promised to build properly. He was also responsible in contract for his engineer. The engineer was responsible under the Defective Premises Act. So, there is joint liability for the remedy, which is a piled raft foundation.

The builder added that duff foundations were not enough to make the house ‘unfit for human habitation’. Do you think that is a good point?

Mr and Mrs Bole have been caught up in this confounded set of events for seven years. The repair will take upwards of 12 months. As for the distress suffered by this family, the courts have always had a skinny approach. The party-and-party agreed sum was £4,500.

I can’t help wondering what the incentive would be if the damages were calculated at £4,500 per person per month. I make it £864,000, plus another £81,000 for baby Bole.

Credit: Simone Lia