Ineffective legal remedy for Building Defects

Applying the basic principles of English contract law, if building work is defective due to a breach of contract, the remedy is the cost of correcting the defects. 

Another approach is to retain the defective work as built and make an equitable deduction in payments to the builder.  Deductions might be based on whichever of the following is applicable: the savings made by the builder’s not having to correct the work, the loss of value in the finished building caused by retaining the defects, the lower cost of building poorly, the foreseeable increased cost of building maintenance, loss of longevity, etc.

The courts have in most cases based remedies on the cost of correction or of diminution in value.  There are exceptions where the courts have awarded nominal damages only.  This has occurred where the defects caused loss of amenity for the owner’s personal preferences.  The case of Ruxlev Electronics and Construction Ltd. v. Forsyth is often cited in this connection.

In a more recent case the courts awarded nominal damages for a failure to build a garage to the specified dimensions.  While the logic by which the courts held that nominal damages were an appropriate remedy can be distinguished from Ruxley, the effect is the same in so far as it makes it uncertain that a contract requiring building work to be done precisely as drawn and specified can be enforced effectively.  Where does this leave building professionals who advise on and prepare building contracts?  Do we have to say to our clients, if you enter a building contract based on agreed drawings and specifications, you may have to put up with a deficient building or pay twice?

The incidence of different types of defects

In the most general sense, a satisfactory building is one which is where it is needed, fits appropriately into its surroundings, and provides adequate space and facilities, protected from adverse weather and other undesirable external conditions. Since this protection cannot readily be achieved with short-lived structures, buildings typically outlast many other modern products, and, if built so that they can be adapted to changing requirements and easily repaired, can give satisfactory service for a long time.
Much can be learnt from the condition of the existing building stock about what mostly causes dissatisfaction after completion.
Existing buildings in Britain number about 25 million. Most are dwellings, which in 2000 numbered about 23 million – well over 90 per cent of the total, but it is estimated that in terms of floor area, domestic and non-domestic buildings are roughly equal.
At the beginning of the 20th century there was, in Britain, one dwelling for every 2.6 persons – slightly above the size of today’s dwindling average household. Population growth is now slow overall, and current demand for building arises largely from changes in household composition and inter-regional migration. The annual rate at which new dwellings were being completed in 2000 had fallen to well under 200,000, compared with more than double that figure in the mid 1960s.
Consequently, for English houses as a whole, recent official figures indicate that more than one fifth are over 80 years old, and around half are 50 years old. There are no comparable statistics for non-residential buildings.

In spite of their age, most existing buildings are still fit for continued use. Government statistics for dwellings officially designate as unfit less than 5 per cent of the total (i.e. 885,000 unfit dwellings). The most common reason for unfitness is disrepair (46%), followed by facilities for the preparation and cooking of food and dampness. Externally, faults occur most commonly in roof features and rainwater goods (34%), exterior wall finish (26%) and windows (25%). Internally faults are most common in ceilings (22%). This is an increase in the number of houses which are in disrepair when compared to the previous year’s survey.

Sustainable Solutions for Old Windows

Plastic windows are often put into older buildings, to ‘upgrade’ wooden windows, though the pvc-U they are manufactured from gives them an expected lifespan of not much more than 30 years. They may provide improvement in insulation via double-glazing and improved draft-proofing and so are often viewed as the sustainable solution. This is potentially belied by the reduction in light transmission, pvc-U window’s limited lifespan and the carbon footprint created in their manufacture.  Pvc-U can now be recycled and one major manufacturer recycles up to 90% of old pvc-U windows, including the glass, though even this process has a carbon footprint in the energy used to re-create the window parts.

Listed historic buildings cannot be sympathetically re-fitted with modern plastic windows and the appearance of many otherwise handsome, though non-listed, older buildings has been spoilt by the addition of carelessly chosen replacement windows. The making, rebuilding and repairing of sliding sash windows has merit.

Wooden window frames and sashes of whatever age can be easily repaired if they have not been allowed to rot, though sliding sash windows in particular are often seen by the inexperienced as more trouble than they are worth to restore.  However weights, cords, pulleys and other traditional sliding sash accessories are readily available and slender, pre-manufactured double glazing units can sometimes be used to replace original Victorian glass, which was often especially thick in larger windows. An expertly restored wooden sliding sash should be no harder to open and close than a UPVC replacement.

Good timber is durable, if taken care of it will last for centuries, though it does require periodic maintenance involving paint and repair. Paint too has a carbon footprint, though modern non-volatile paints are improving all the time. Pvc-u is low-maintenance but cannot be repaired as easily, so its longevity is not as good and older plastic windows may suffer permanent discolouration from exposure to sunlight. They can also become stained, mildewed and bird droppings are reportedly particular problems.

Early steel windows, manufactured prior to the introduction of rustproofing treatments at the end of the 1930’s also require additional maintenance. Wartime painting was often neglected and rust allowed to set in, often unseen beneath the putty in the glazing rebates. Cracked glass, provoked by compression from the building up of corrosion products, is a sure sign.

Such windows are often worth conserving and may be put back in good order. Careful removal of glass and putty, followed by grinding off rust to bright metal and the application of a good zinc based primer is essential, before re-glazing and painting.

When extensive conservation work is required, involving the repair or replacement of hardware, the dismantling of composite assemblies, or the piecing in of replacement bars, it may be worth having the windows taken out, removed to a workshop, stripped down and hot dip galvanized before re-assembly.

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