Disputes with purchasers are an increasingly common feature of residential development. Claims are often framed around defective works, delay, or misrepresentation and can escalate quickly if not managed properly. From a litigation perspective, defending new build claims requires positioning your defence early, preserving evidence, and understanding where liability can be limited or avoided altogether.
This guide outlines the most common claims brought by purchasers and how developers can robustly defend them.
Breach of contract claims
Purchasers frequently allege that the property:
- Does not match the agreed specification
- Has not been constructed with reasonable skill and care
Potential defence
You should rely on the Contractual Framework; your primary protection lies in the sale agreement. Key provisions to rely on include:
- Specification clauses: Was the finish or feature actually guaranteed?
- Variation clauses: Many contracts allow changes to materials or layout
- Entire agreement clauses: Limits reliance on marketing statements
You should demonstrate (with evidence) that works were carried out:
- In accordance with industry standards
- In line with approved plans and specifications
Even under consumer legislation, the benchmark is reasonableness, not perfection.
Claims under the Defective Premises Act 1972
Purchasers often rely on the Defective Premises Act 1972 arguing the property is not “fit for habitation.”
Potential defence
You should challenge the Threshold, as the statutory test is relatively high. Minor defects or snagging issues will not render a property unfit and you should focus on whether the property is actually unsafe or uninhabitable
You should consider obtaining early Expert Evidence as in most cases, liability depends on:
- Causation
- Severity of defects
When instructing an independent expert, they can assist in rebutting allegations and attribute issues to non-construction causes.
Misrepresentation claims
These arise where purchasers allege reliance on:
- Brochures
- Show homes
- Sales statements
Potential defence
You should rely on and use the Entire Agreement and Disclaimer Clauses, as well-drafted contracts should:
- Exclude reliance on pre-contract representations
- Confirm that only written terms are binding
While such clauses must be reasonable, they are often effective in limiting exposure.
You should maintain records showing:
- Accurate marketing materials
- Clear communication of potential changes
As the above helps rebut allegations of misleading conduct.
Snagging and quality complaints
Many claims relate to:
- Cosmetic defects
- Minor workmanship issues
Potential defence
You should categorise issues properly, which distinguish between:
- Snagging items (minor, expected in new builds)
- Material defects (more serious issues)
Courts are generally reluctant to treat minor imperfections as actionable breaches.
Operating a clear snagging process can assist in resolving disputes early and demonstrate reasonable conduct, as failure to engage can escalate minor issues into litigation.
Warranty-based arguments
Purchasers often rely on warranty schemes such as NHBC to further their claim.
Potential defence
You should direct Claims appropriately and where applicable refer purchasers to the warranty provider. However, you should not assume this removes your liability entirely.
Aligning the builds with warranty standards, insofar as they meet or exceed warranty requirements as this provides an additional evidential layer in your favour.
Causation
A key litigation battleground is whether the defect was caused by the developer at all.
Potential defence
If appropriate you could consider attributing issues to Occupier Use, as common arguments utilised include:
- Cracking due to natural settlement
- Damp caused by lifestyle factors (e.g. poor ventilation)
- Damage resulting from purchaser alterations
It is advisable that you maintain detailed build records, with contemporaneous evidence being vital, which includes but is not limited to:
- Site reports
- Inspection logs
- Photographs
Without this, defending causation becomes significantly harder.
Subcontractor responsibility
Developers often rely on subcontractors for large parts of construction tasks.
While you may remain liable to the purchaser, you can consider passing liability down the chain via contractual indemnities or joining subcontractors into proceedings if necessary.
In spite of the above, you should ensure your subcontract agreements are properly drafted.
Limitation defences
One of the most effective ways to defeat a claim is to show the claim is out of time. Should identify the date of breach or completion and assess whether limitation periods have expired
Limitation is often a complete defence, regardless of the merits.
Failure to mitigate
Purchasers must take reasonable steps to limit their losses.
As such you could argue that the purchaser failed to carry out reasonable repairs, and/or allowed damage to worsen unnecessarily
Failure to mitigate can result in a reduction of the level of damages and undermine the overall claim.
Practical risk management for developers
The strongest defence begins before any dispute arises. Key steps you could take include:
- Robust contracts, Including variation, limitation, and entire agreement clauses
- Accurate marketing
- Detailed record-keeping, maintaining full audit trails of construction and inspections
- Effective aftercare to address any snagging issues promptly
Final thoughts
Purchaser claims relating to new builds are often technically complex and fact-sensitive.
While developers do face significant exposure, there are well-established legal and evidential strategies available to defend such claims effectively.
The key is a structured, evidence-led approach, supported by clear contractual protections and proactive dispute management.
How can we help?
Mario Mastantuono is a Senior Associate in our Dispute Resolution Team.
For further information about new build claims or to discuss your specific situation, please do not hesitate to contact Mario Mastantuono via email: [email protected] or telephone number: 01245584517. You can also get in touch with our team via our online enquiry form or call 08455 435 700.
We have offices in Chelmsford, Colchester and London, and our lawyers are ready to help.