As indicated in the high level report laid before Parliament in 1970 the contractual sale terms are very important (and especially so given it is probable the 1972 Act has been interpreted incorrectly by the Court of Appeal).

In some cases, express terms are contracting/reducing in relation to the house-builder’s quality/design obligations (from the purchasers perspective),  presumably on the house-builder taking legal advice, in respect of new dwellings sold: 

a.     Notice of defects to the builder is central to liability within the first two years under the NHBC Warranties;

b.    ‘Design’ rarely gets a mention in the contract;

c.     House-builders’ attempt to exclude terms which would ordinarily be implied into the contract of sale (which are otherwise good for purchasers of new dwellings);

d.    House-builders attempt to limit their liability to 2 years (in accordance with their perceived obligations under insurance backed warranties) totally ignoring the DPA 1972 (which does not normally get a mention in the contract of sale);

e.     Entire agreement clauses are deployed by house-builders to exclude representations made e.g. by sales agents and others (as well as attempts to exclude implied terms);

In the case of d. above the exclusion clause was in the following terms in a leading case:

"This Agreement and the "Buildmark" Offer of Cover constitute the entire contract between the parties and shall be only varied or modified....in writing under the hands of the parties and any terms undertakings promises or agreements not set out in this Agreement are released by both parties and shall have no effect. The buyer acknowledges that save as to such of the written statements of the Seller's Solicitors prior to the Agreement Date as were not susceptible of independent verification by inspection and search and enquiry of any local or other public authority (and whether or not such inspection search and enquiry has been made) the Buyer has not entered into this Agreement in reliance wholly or partly on any statement or representation made to him."

And

"The Buyer agrees that no oral representations have been made to the Buyer prior to the date of this Contract by the Seller or its employees or agents which has [sic] influenced or persuaded the Buyer to enter into this Contract. In any event, the Buyer will not be able to rely upon any oral or written representations and this Contract contains all of the terms of the Contract."

Note that implied terms were not caught by terms cited above. The meaning of such clauses are expensive to litigate and invoke complex legislation that controls, in favour of consumers, the use of such terms by house-builders and others.

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