Make the Developer Get the Job Right': Remedies for defects in residential construction

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