The test of participation in the act of building
Ten-year liability covers builders, that is those participating in the act of building whose failings may affect stability. The developer is treated as one according to their actual role.
A developer who has acted only as vendor therefore does not answer for ten-year liability, having not participated in that act.
That is logical and consistent with the test, but counter-intuitive for the purchaser, who contracted only with them.
The practical consequence is heavy: the purchaser would then have to proceed against professionals with whom they have no contractual link.
The major exception
It changes everything, and it explains why the branch on the Breyne Act is the core of this guide. The capacity of the vendor governs the applicable regime.
The developer-vendor assumes ten-year liability where the sale falls under the Breyne Act.
The protection therefore goes well beyond insolvency risk. A purchaser protected by the act has a single counterpart, including for defects affecting soundness, whereas the same purchaser outside its scope would have to find the responsible party among the chain of participants.
It is probably the act's most underestimated effect, and it is covered in the corresponding branch on the Breyne Act.
| Capacity of the vendor | Applicable regime | Purchaser's remedy |
|---|---|---|
| Builder, participating in the act of building | Ten-year liability | Direct claim against them |
| Vendor of a completed property | Warranty against defects in the thing sold | General law remedy |
| Developer selling off-plan | Breyne Act where the conditions are met | Cumulative statutory protections |
The other configurations
Three intermediate situations deserve distinguishing. They blur the line between vendor and builder.
A developer who actually participates in the act of building may be held like other builders, their characterisation then depending on their real role rather than their title.
A developer who contracts with the architect and the firms acts as client during construction, which is the typical off-plan arrangement, described in the article on the single contractor test.
A developer selling completed property falls outside the Breyne Act's scope, the protection targeting construction to come or under way.
In all three cases the reality of the role prevails over the label, and that assessment is one of fact.
What that changes for the purchaser
Three practical consequences, to be known before signing. They bear on the remedies open to the purchaser.
Who their counterpart is when a serious defect arises. Under the Breyne Act, the developer. Outside its scope, potentially nobody with whom they contracted.
The difficulty of proof. Proceeding against an unknown participant means identifying who was involved, which is not always documented.
The usable time. Time spent identifying the responsible party runs against the ten-year period, which is one of forfeiture, as the article on the layered regimes recalls.
Why the question arises before signing
A point of method that holds for the whole guide. Classification follows the facts, not the heading.
The applicable regime is determined at conclusion, from the nature of the operation and the arrangement adopted.
It is not chosen afterwards. A purchaser who discovers after a defect that they were not protected cannot retroactively change their position.
Hence the five-question method, to be applied before signing, set out in the article on checking whether the Breyne Act applies.
What this means for a professional
Four rules.
Characterise the developer's real role, rather than relying on their title.
Tell the purchaser about the Breyne Act's effect on ten-year liability, an effect they almost never know.
Document who the participants were in operations outside the Breyne Act, that information governing any later claim.
Check the insurance cover of the actual participants, not that of the vendor alone.
This article reflects rules and case law at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.