Remedies for defective housing: devising a model for legal redress and regulatory reform

Abstract

A number of significant building failures have come to light in Ireland in the past twenty years. These failures widespread non-compliance with Building Regulations, necessitating the evacuation of the Priory Hall apartments in North Dublin in 2011 due to fire risks, and the discovery that minerals such as mica and pyrite in construction materials has caused major structural damage to thousands of houses. The Irish State and public bodies have paid significant amounts to rectify these defects, as the owners often cannot access financial remedies under Irish law, for various reasons. These failures have highlighted the lack of effective legal remedies under Irish law in respect of building defects, and indicate serious deficiencies in the regulatory regime for residential construction. Limitations on contractual remedies, for example due to the legal rules on privity of contract, limitation of actions, and restrictions on assignment of building contracts, have made it very difficult for home owners to secure legal remedies through their primary legal relationships. Builders from whom remedies might have been sought in contract were often insolvent and not a mark for litigation. Building control authorities failed to detect the occurrence of breaches of Building Regulations and to implement an effective regulatory regime. The main provider of home defects insurance withdrew indemnity cover in respect of pyrite damage following litigation against a supplier. Piecemeal and inexhaustive measures were introduced by the Irish Government in response to these failures, including the Building Control (Amendment) Regulations 2014, and the Pyrite Resolution Board in 2013. The Law Reform Commission has considered the deficiencies in legal remedies for home owners on a number of occasions, but its recommendations have not been implemented. No package of reform has yet been devised that provides effective redress to consumers for defective homes. This situation stands in contrast to the substantial consumer protection applicable to other fields of economic activity. This thesis considers the legal environment and the appropriate regulatory response to building failures, by analysing existing and potential legal remedies available to home owners, by critically examining and evaluating the regulatory regime for residential construction, and by proposing improved remedies and regulatory reform.