(B) Contracts involving buildings: tenancies and building contracts

However, both English courts and the legislature have taken very different approaches to contracts concerning buildings, whether of sale, hire (leases or tenancies and licences) and the liability of builders.

First, the law governing liability under contracts for the sale of land (and therefore of the buildings attached to land) remains strikingly different from the law of sale of goods. In principle, a seller of land is subjected to no implied term as to the state of the land or its fitness for its purposes, even to the extent that in principle a seller of residential premises is not under any duty as regards their fitness for habitation.⁵⁴ This stark position was qualified in 1972 by statute, according to which ‘a person taking on work for or in connection with the provision of a dwelling’ owes a duty to see that the work is done in a ‘workmanlike’ or professional’ manner ‘so that as regards that work the dwelling will be fit for habitation when completed’.⁵⁵ While this does not change the position for sellers of premises in general, it does create a new and strict liability in those ‘taking on work’ (which would include builders and architects) in respect of ‘dwellings’ (that is, residential properties), it being provided that this liability (p.275) benefits the person who commissioned the work and extends ‘to every person who acquires an interest (whether legal or equitable) in the dwelling’.⁵⁶ On the other hand, for many years this liability had little practical relevance as it did not apply to most new housing as it was excluded in respect of houses built under the National House Builders Protection Scheme.⁵⁷ Even after the discontinuation of this scheme in 1990, the short limitation period of six years from the completion of the work is likely to have a restrictive effect on its impact.⁵⁸

Moreover, after Murphy v Brentwood District Council⁵⁹ the courts have firmly rejected the imposition of liability in either a seller or a builder in respect of defects in quality in a building sold in the tort of negligence.⁶⁰ It is partly for this reason that in the English context a buyer of premises almost always instructs a surveyor to inspect any premises which are intended for purchase, this also being required as a condition of the loan of money by building societies and banks concerned to lend only on a reasonably safe security. This general immunity of sellers of real property also explains the importance attached to the liability of surveyors of property in respect of inspections and reports with a view to purchase.⁶¹

The common law’s attitude to the liability of landlords in respect of the state of the premises was also restrictive. So, at common law there is no implied term in contracts of tenancy that the leased premises are or will be fit for habitation or for any particular use,⁶² though an exception was made as regards tenancies of furnished accommodation where there is an implied term (usually called an implied covenant) that they are reasonably fit for habitation when let.⁶³ At common law, this general contractual immunity in landlords to their tenants was paralleled by a rejection of any duty of care in the tort of negligence in landlords to their tenants or others even as regards personal injuries or death,⁶⁴ though in the second half of the last century the courts cut down this immunity where the landlord had designed or built the premises in question.⁶⁵

However, there are important exceptions to this common law position. First, as regards houses or flats let at a low rent, there is an implied term that the premises will be at the start of the tenancy and will remain during its life fit for human habitation;⁶⁶ and as regards houses or flats let for a period of less than seven years, a landlord owes a number of obligations to repair and maintain the premises.⁶⁷ Secondly, by statute by virtue either of an obligation or a right to repair premises a landlord owes a duty to take reasonable care to maintain or repair the premises ‘to all persons who might reasonably be expected to be affected by defects in the state of the premises’.⁶⁸ This duty may therefore be owed either to a tenant or a non-tenant,⁶⁹ but it is expressly limited to recovery in respect of personal injury, death or damage to their own property and requires proof of negligence in the landlord.⁷⁰

(p.276) This complex and somewhat patchy pattern of liability contrasts strikingly with the English law governing the liability of a business supplier of goods, where liability is imposed strictly to the transferee. Even more, though, it contrasts with the rules governing the liabilities of sellers of immovable property, of landlords to their tenants and of builders in French law. As I have explained, all these can be liable for the harm caused by the defects in the buildings which they supply, either by way of the general law of the Civil Code (as in the case of sale, where the rules governing immovable and movable property share a common framework) or by way of special legislation distinguishing different types of defect (as in the case of the liabilities of constructeurs).⁷¹ As regards builders, the French liability is both very strict and runs happily beyond privity to subsequent purchasers of the property, though within set prescription periods.⁷² While in part these differences can be seen as a practical consequence of the historic divorce in English law between the law governing real and personal property and the harmony of treatment of the laws of sale and louage in French law, they also reflect very different choices of policy as regards the proper liabilities in particular of builders, including the decision by the French legislature in imposing liability in 1978 that all ‘builders’ must be insured.⁷³