Understanding Housing Defects

Duncan Marshall, Derek Worthing, Roger Heath, Nigel Dann

• Publisher: Estates Gazette
• Year: 2013
• ISBN:
  9781136153730
• Edition: 4
• Topic: Technology & Engineering
• Subtopic: Construction & Architectural Engineering
• Index: Technology & Engineering

Understanding Housing Defects provides a concise, coherent and comprehensive introduction to the causes, investigation and diagnosis of defects in domestic buildings.

For this new edition, many of the chapters have been substantially updated and new photographs have been added. There are four new chapters covering:

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• How defects are defined

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• An overview of building and architectural history

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• External joinery and painted finishes

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• Environmental and health- related building problems

Many of the 21 chapters cover a specific building element and include a brief introduction setting out construction principles and the evolution of current practice. All of the chapters consider the identification, cause and diagnosis of common (and sometimes not so common) defects. This book is a must have for all those students and practitioners who require a broad understanding of housing defects.

Building surveyors, general practice surveyors, architects, estate agents, housing officers and anyone involved in the management and maintenance of property as well as its construction will benefit hugely from this highly informative full-colour text. Written by the authors of The Construction of Houses, the book is also the natural companion to this bestselling textbook.

1

Understanding defects: an introduction

This book is concerned with explaining how a housing defect is caused, how it might be identified and, to some extent, what its consequences might be. The importance of an understanding of defects can be seen by the number of legal cases related to them. It is therefore worth considering what we mean when we say something is defective.

All building materials will have a lifespan over which they degrade and/or eventually fail. Proper and timely maintenance will help to extend the function by offering protection against degradation, or preventing failure in one element affecting another element. Notwithstanding the fact that all materials will fail at some point, and require repair or replacement, early failure may occur for various reasons including:

• poor manufacture

• poor design

• poor specification

• poor construction

• poor maintenance

• inappropriate use.

These are not necessarily ‘stand-alone’ reasons for early failure – sometimes they work in combination – it is not uncommon, for instance, for the failure of flat roofs to be caused by the ‘unholy trinity’ of an initial poor design, aggravated by a poor specification and then finished off by mistakes made at the construction stage.

Perhaps the most straightforward way of defining a defect is to suggest that something is defective when it no longer performs its functional requirements. As when, for example, a wall or its individual components no longer prevent rain from reaching the interior of the house, or perhaps, more dramatically, when a support or restraint gives way and a wall collapses. However, something could also be considered defective if it is still performing its primary function but its condition threatens to cause damage to other elements of the building, or, indeed, to other buildings.

In assessing the condition of a building, one usually attempts to make an assessment of the severity of the defect, based on an analysis, or at least an assumption, of the impact of the defect on the element itself and also on the surrounding elements. An example of this latter situation might be a rising damp problem in a wall, which is in itself a defect, but if it is not dealt with, it could lead to additional defects, such as dry or wet rot in, say, an adjoining timber floor. An assessment of potential impacts might also have to take into account a situation where there could be a relatively minor defect that, if it remains uncorrected, may lead to a more serious problem – an example of this might be a small plumbing leak that is a catalyst for dry rot. In both these cases a good knowledge and understanding of the construction and materials of the house being inspected are crucial in determining the likely severity and impact of the defect. The importance of understanding how the house being inspected was built, in general and in detail, and the materials used to do so, applies not only to older houses. For example, in a modern house the effect of damp penetration through the outer skin of an external wall will potentially have a greater significance for a timber-frame house than for a brick and block house in terms of the possibility of fungal attack and also differential movement.

It is of course possible that an element can be functioning as intended but is still considered to be defective because the requirements or expectations have changed with time – the width or steepness of stairs, for example – or that health and safety issues which were not appreciated at the time have emerged, such as the use of lead piping, lead paint, asbestos, etc. Another obvious example is that of increased environmental concerns where a lack of sufficient thermal insulation or heating controls in line with current, and indeed future, standards could be identified as a defect.

Perspectives on defects

However, it should be remembered that, while sometimes defects are a matter, more or less, of fact, they are also, sometimes, more of a matter of opinion, perception or interpretation. For example, the idea of character and patina of age may be relevant. Quite often, older houses are valued because they have character. To some people, the very fact that a building is old will be enough to imbue it with character. This connection between age and character is relevant to the identification of defects because it is clear that what might be regarded as an unacceptable physical condition in a new house might be seen as part of the character of an older house. Examples of this phenomenon might include sloping floors, or steep and/or narrow staircases.

To some extent, the issue of perception and context could also be affected by other factors close to, but not the same as, ideas of character. One of these could be that of expectation. For example, many people would accept the minor undulations or hairline cracks in the walls or ceilings of an older house that they would not in a newly built house, which they might expect to be in ‘perfect’ condition. Expectation also plays a part in determining the notion of something being defective in other ways. There is some evidence that the higher the purchase price of a house, the more the purchaser is likely to see minor ‘blemishes’ as significant defects, i.e. the owners of higher value houses perceive similar defects to be more serious than do owners of houses that cost less to purchase.

There is another aspect to the link between character, age and defects, and that is how something that might be considered defective in some circumstances – such as deterioration in the surface of stonework – might, in a house that is an historic building (i.e. listed because it is of cultural significance) be considered to be an important aspect of its ‘patina of age’ and therefore part of its essential character.

Obviously, in all of these cases of character there is a judgement to be made about where character ends and a defect begins. The same surface ‘damage’ in stonework that might be seen as part of its character will also make that stone more vulnerable to defects such as frost attack and damp penetration, which will in turn damage the historic value of the building through the loss of important historical fabric.

Design flaws

Although we do not deal explicitly in the book with defects in overall design, in the sense of, say, a house not functioning because of its juxtaposition of rooms or poor provision or use of space, design flaws can affect the functioning of an element. Examples of such flaws might be where the detailing of brickwork has been inadequate and has exposed it to excessive rain and low temperatures, leading to defects such as frost attack or sulfate attack. Or where a staircase is too narrow or too steep, making it difficult or dangerous to navigate. Design defects may also include the inadequate provision of natural ventilation via window openings. Some of these situations are covered in the Building Regulations.

Although we have not included wider issues regarding aesthetics in the book (in the sense of what a house looks like overall), aesthetic judgements are often linked to the issue of quality of workmanship and clearly something could be considered aesthetically defective in, for example, the quality of a finished surface in perhaps joinery, plaster or paint. This can be a matter of relative judgement or relative experience or knowledge: if you have never seen a high-quality emulsion paint finish on a plastered wall, you may think that the ‘orange peel’ effect is perfectly acceptable.

Legislation

One might consider that there is a factual basis for deciding that something is defective if it is identified as being so under one or more of the pieces of legislation which cover the physical condition of buildings but in reality this is, like much law, quite a complex area of both fact and interpretation. There are a number of statutes, as well as common law principles, which govern matters relating to buildings that are defective or ‘in disrepair’. The statutes overlap to a certain extent, and they approach the problem from different perspectives. Take the example of rising damp which could, depending on the severity of the problems, come within the definitions below:

• statutory nuisance, covered by the Environmental Protection Act 1990;

• unfit for human habitation, covered by the Housing Act 1985;

• landlord’s contractual repairing covenants, covered by the Landlord and Tenant Act 1984 and common law.

Because dampness is capable of causing injury, such as allergic reactions (in the sense that damp allows moulds to grow and their spores can create the problem), it could also be covered by the Defective Premises Act 1972. If it causes structural damage, such as rotting floor joists, which makes the building unsafe, it might be covered by the Building Act 1984. If the floor joists give way while a visitor is standing on them, the owner or occupier might be liable under the Occupiers Liability Act 1984.

Action taken under these statutes could in some instances lead to the criminal prosecution of the person with ultimate control of the building (the owner, usually). Common law and other statutes give rights to the injured party to sue the person responsible and for local authorities to take action.

There are a number of Acts of Parliament and considerable case law which can apply to housing defects, and which approach the problem from a number of different angles. Some examples of these are discussed below.

Defective Premises Act 1972

This Act, which applies to work in relation to a new dwelling (new development or conversion), imposes a duty on those who undertake work for, or in connection with, the provision of a dwelling, to:

• do the work in a professional or workmanlike manner;

• use proper materials;

• ensure that the dwelling is fit for human habitation when the work is completed.

Occupiers’ Liability Act 1957 and 1984

The duty of care imposed under this Act is to see that any visitor is reasonably safe in using the premises for the purposes for which they were allowed in. The duty of care may vary according to such factors as whether the visitor is a child, or an independent contractor employed to carry out works of repair, or in any event knows of the danger because it has been brought to their attention. Liability is imposed on the occupier, who, for the purposes of this Act, is the person in control of the premises.

Landlord and Tenant Act 1985

This Act places substantial legal duties on landlords to repair and maintain properties which they let to tenants. When landlords fail to keep their premises in repair, their tenants may be able to sue them for breach of contract. Tenants may be able to recover damages (compensation) for the breach for a period of up to six years, depending on when the landlord first had notice of the disrepair. The tenant can also ask the court to order that the repairs be carried out.

Environmental Protection Act 1990

A house in poor condition can amount to a statutory nuisance, which is a criminal offence. The law relating to statutory nuisance is set out in the Environmental Protection Act 1990 (EPA). This largely, but not entirely, replaced the Public Health Act of 1936. Statutory nuisance under the Act could include ‘any premises in such a state as to be prejudicial to health or a nuisance’. An example of a statutory nuisance might be an ill-fitting window frame, not because it needs repair, but because it allows wind and water penetration which in turn causes dampness and mould growth which are prejudicial to health.

The term ‘prejudicial to health’ is taken to mean ‘injurious, or likely to cause injury, to health’. Therefore, both actual and potential ill-health are covered. Premises will fall within this definition if it can be shown that the conditions of the premises would cause a well person to become ill, or the health of an ill person to deteriorate. ‘Health’ is defined broadly to include physical and mental health. Mere interference with comfort will not count but it would include stress caused by the effects of poor housing.

Dampness is a common statutory nuisance, whether it is penetrating, rising or condensation dampness. Premises which are damp are harder to heat and can aggravate conditions such as arthritis and rheumatism. Dampness can affect the furniture in the room, making beds and bed linen damp, for example. The mould growth associated with dampness, particularly condensation dampness, is a known health hazard. Many people are allergic to the mould spores, which can cause bronchitis, asthma and other complaints which cause breathing difficulties.

Liability in tort for failure to repair

A claim may be made in the tort of negligence where the state of repair of a building causes personal injury or damage to a person’s property, and the injury or damage can be said to arise out of the breach of a duty of care owed to that person. The categories of persons who are subject to legal liability for inadequate buildings have been expanded, both through common law and through statutes. Defects in the design, construction, or modification of a building may also give rise to a claim in negligence. This is a complex area of law and beyond the scope of this book.

The Building Act 1984

This is primary legislation under which various pieces of secondary legislation are made. The secondary legislation includes the Building Regulations, Dangerous Structures and Demolition of Buildings. The Act allows local authorities to take action in relation to premises which are in such a ‘defective state’ that they may be prejudicial to health or a nuisance. It also allows a local authority to take action where it considers that a building or structure or part of a building or structure is in a condition that renders it dangerous. This may include restrictions on the use of the building until it has been made safe.

The Act also allows the local authority to take action where a building’s ‘ruinous or dilapidated condition’ is considered to be seriously detrimental to the amenities of the neighbourhood.

The Building Regulations

The Building Regulations are not retrospective but they are a useful reference point for considering an existing building in the light of modern requirements and standards in respect of both the health and safety of occupants and energy usage.

Town and Country Planning Acts

Legislation relating to planning is perhaps a less obvious reference point for taking action concerning defects, but there are two relevant and possibly interconnected areas which may apply. The Town and Country Planning Act 1990 gives the local planning authority the power to require that land be cleaned up if its condition ‘adversely affects the amenity of the area’. Although reference in the legislation is to ‘land’, the term is used to cover land and buildings. Therefore, a building with a number of, presumably external, defects could be the focus of action under this legislation. The normal course of action is for the local authority to serve a notice on the owner setting out what must be done to remedy the situation. The local authority has the power under the Act to carry out the work themselves and recover the costs from the owner. There is encouragement from government for local authorities to use these powers proactively, i.e. not just in response to complaints by neighbours, and they are often used in respect of buildings in conservation areas and for listed buildings...