Homeowner responsible for repairing building defects

The recent High Court case of Thomas v Taylor Wimpey Developments Limited will be welcomed by housebuilders but not by homeowners.

In that case, Mr & Mrs Thomas purchased a new-build property from Taylor Wimpey in January 2007. The property was covered by a 10 year warranty from the National House Building Council (NHBC) known as the Buildmark Warranty. The Claimants claimed that the log retaining wall at the rear of the back garden of the property was poorly constructed and defective and they brought a claim against Taylor Wimpey for breach of their duty of care at common law, misrepresentation and breach of the Defective Premises Act 1972. The Claimants also sought to recover from the NHBC on the basis that the defect in the wall fell within the scope of the Buildmark Warranty and that the NHBC had wrongly refused to cover the costs of the remedial works.

The Court had to decide whether:

Taylor Wimpey owed the Claimants a duty of care in negligence for the loss and damage that were alleged;
whether the claim against Taylor Wimpey in misrepresentation and under the Defective Premises Act were out of time; and
whether the defect fell within the scope of the Buildmark Warranty.

The Court decided that Taylor Wimpey owed no duty of care to the Claimants because, relying upon long established legal principles, the only loss suffered by them was the economic loss arising from the cost of remedying the defect in the wall and such loss was unrecoverable.

Both the claims for misrepresentation and for breach of the Defective Premises Act were brought beyond the relevant limitation period and were therefore time-barred.

The claim against the NHBC also failed because the Buildmark Warranty only covered retaining walls necessary for the structural viability of a property whereas in this case the retaining wall was merely a boundary feature and therefore had no impact upon the structure of the building.

This case illustrates the importance of bringing claims promptly within limitation periods. Had the Claimants brought the claim earlier then their claims for misrepresentation and under the Defective Premises Act as well as under the developer’s contractual obligations to carry out the building works with reasonable skill and care may well have succeeded. Instead they had to bring a claim in negligence as this allowed them to bring the claim within 3 years of becoming aware of the defect (which ultimately proved unsuccessful).

Contrary to many homeowners’ assumptions, this case also highlights the limited scope of the protection which they are afforded by the NHBC Buildmark Warranty.

 

If you are involved in any property or contractual dispute then Blacks Solicitors can assist. Please contact Luke Patel on 0113 227 9316 or by email at “LPatel@LawBlacks.com”.

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