Philip Britton
March 2013
A paper based on the commended entry in the Hudson Prize essay competition 2012
In contrast to the employer in a commercial construction project, the off-plan buyer of a flat in a residential development has few rights if construction defects come to light soon after construction is complete. Philip Britton’s paper considers the remedies for defects which are available to residents in a multi-unit residential development in English law, explaining the limitations of the most obvious remedy – an action for damages against the developer – and of the widely available third-party warranties. It goes on to argue that it may sometimes be appropriate to ask the court for an order of specific performance of the purchase contract – especially if the defects are in ‘the common parts’ of the development. The paper concludes by drawing comparisons with the law in Australasia, where many jurisdictions offer a more systematic and detailed statutory protection of residential consumers of construction – with remedies to suit – than English law does so far.
Introduction (Residential projects: specific legal context – Primary remedy: damages – Alternative remedy: specific performance) – The scenario (Factual background – A warranty claim? – Claiming against the developer – Three potential difficulties for the residents – Position of the Management Company) – Specific performance? (General principles – Application to construction – Residential claimants and specific performance) – Statutory remedies in Australasia (Background – Remedies in domestic building cases – Specialist tribunals : VCAT – New Zealand) – Conclusions.
The author: Philip Britton LLB BCL is a Senior Fellow, University of Melbourne; Consultant, Fairweather Stephenson & Co Ltd (Aldeburgh, UK); also former Visiting Professor and Director, Centre of Construction Law & Dispute Resolution, King’s College London.
Text 21 pages