DEFECTIVE CONSTRUCTION: CLAIMS AGAINST BUILDERS AND LOCAL AUTHORITIES

Abstract

Where a contract is for the sale of land and fixtures the general law on fitness and quality is well settled : prima facie the general law implies into that contract no terms as to the fitness of the subject property for any purpose nor any term as to its general quality. It is the purchaser's responsibility to discover defects in the physical quality of the property for himself. A party who seeks to claim the benefit of some such term must establish either an express term in the contract or some term to be implied from the particular course of dealings between those specific parties. There is much good sense in the common law position. Purchasers may very well buy properties in bad repair with their eyes open and for their own advantage. Furthermore, the common law rule does not apply in the case of a contract for the sale of land and a house to be constructed or in course of construction. Instead there are three implied warranties: a) that the work will be done in a good and workmanlike manner;(b) that the materials will be good and proper for the work;(c) that the house will be fit for human habitation. These warranties arise under the initial contract. The purpose of this paper is to examine recent authorities which extend a tortious liability to builders and local authorities in respect of defective construction work. The writer will seek to establish the extent to which that liability runs in favour of both initial and later purchasers of defective premises. The cases examined are a series of United Kingdom decisions.