The Walk to Paradise Gardens: Flat-owners and Building Defects

A paper derived from a talk to a meeting of the Society of Construction Law in Birmingham on 7th April 2009.

When owners of flats in a multi-unit development realise that their flats and ‘the common parts’ of their development may be suffering from construction defects, what rights do they have in law, on what legal basis, and against whom? In ‘The Walk to Paradise Gardens’, Philip Britton and Mark Fairweather analyse a scenario drawn from real life, which illustrates the potential complexity of both the facts and the law. It includes pointers to the tactical and practical issues involved in mobilising residents and the flat management company towards making a claim, then pursuing that claim in the Technology and Construction Court if necessary. The paper also considers why English law in this area appears so unsatisfactory for flat-owners; and how other legal systems may do better.

A. Background - The development - The problems - Dealing with the defects - B. Repairs without needing to litigate? - The NHBC Buildmark warranty - Other warranty claims? - C. Find your defendant, claimant and right of action - Claims by original flat-owners - Successors of the original purchasers: claiming in contract - Successors of the original purchasers: claiming by other routes - Claims by the FMC - D. Starting a claim - Limitation issues - Pre-action disclosure - ADR and litigation - Suing in the TCC - E. Cost (and costs) issues - Individual flat-owners - The FMC (or RTM company) - F. Possible defence arguments - G. Remedies - H. Conclusions.

The authors: Philip Britton LLB BCL is a former Director, now Visiting Professor, Centre of Construction Law and Dispute Resolution, Kings' College London and Mark Fairweather MA is a director of Fairweather Stephenson Ltd, solicitors.

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