HGCR Act 1996 - Residential Dwellings

© Daniel Atkinson 2001 29 September 2001

SUMMARY

The Act is not intended to apply to work carried out on flats or buildings for the residential occupier.

If the building has been subdivided into flats occupied by residential tenants, then the Act will apply to work carried out on the flats for the landlord, even if the landlord is a residential occupier of part of the building.

1  Section 106

Section 106(1)(a) provides that Part II of the Act does not apply to a construction contract with a residential occupier. This is defined under Section 106(2) as a construction contract which principally relates to operations on a "dwelling" which one of the parties to the contract occupies or intends to occupy as their residence.

It would appear that the dwelling does not have to be the occupier’s main residence although there must be an intention to occupy it at some time in the future. However a considerable amount of work carried out on domestic property will fall within the Act as it will be carried out for Local Authorities, Housing Associations, commercial landlords and managing agents.

The term "dwelling" includes a flat which is defined as a separate and self contained premises part of a building and adapted or constructed for use for residential purposes.

The term "dwelling" includes a dwelling house, but does not include a building containing a flat. It is clear therefore that if a building has been subdivided into flats that the whole building cannot qualify as a dwelling. Each part may qualify by being a flat. It will then be necessary to consider whether the work on the flat is being carried out for the resident or the landlord.

2  Caselaw

In Samuel Thomas Construction Ltd v Anon (2000) TCC it was held that a residential occupier does not have to be in occupation. That was perfectly obvious from the words "intends to occupy as his residence". The fact that, when the operations commence, a property is not properly described as "a dwelling' is neither here nor there, provided that the operations on the item as a whole can properly be described as principally operations on a dwelling. If one started off with a derelict barn which was intended to convert it into a dwelling, at some stage it would cease to be a derelict barn and would become the beginning of a partly-constructed dwelling. The question is not: "Was it a dwelling at the commencement of the operations?', but: "Did the operations as a whole principally relate to operations on a dwelling?'

Judge Overend held that the contract did not principally relate to an operation on a residential dwelling, but it was related to another building as well as the dwelling and, a garage block, courtyard and drainage, and was not excluded under section 106(l)(a) of the Act.

n Absolute Rentals Ltd v Gencor Enterprises Ltd (2000) TCC His Honour judge David Wilcox stated obiter that a limited company cannot be a residential occupier of a dwelling house.