Last edited 11 Jul 2016

Remedial works in construction

Defects are aspects of the works that are not in accordance with the contract.

Defects can be 'patent' or 'latent'. Patent defects are those which can be discovered by reasonable inspection. Latent defects are those which cannot be discovered by reasonable inspection, for example problems with foundations which may not become apparent for several years after completion.

Defects may occur because of:

When defects become apparent remedial work may be necessary to correct the defect. However, this is not always straight forward:

  • It is not always clear what constitutes a defect. For example if the specification is not clear, or if the contract does not set out what testing is necessary or what the consequences will be if a test is failed.
  • Whether a defect is in fact a maintenance issue.
  • It is not always clear what has caused a defect. For example, it may be a combination of design and workmanship deficiencies, or an apparent defect in finishes may actually be caused by a structural problem.
  • It is not always clear where the fault lies, or it may lie with more than one party; such as the contractor, consultant, sub-contractor, supplier, and so on.
  • The remedial works necessary to correct the defect may be very extensive, complex, costly, time consuming or out of proportion with the nature of the defect.
  • The defect may be fundamental (for example, requiring demolition, making the building unsafe or being in breach of a permission), functional (affecting the clients beneficial occupancy of the building) or 'cosmetic' (not in compliance with the contract, but not affecting the clients beneficial occupancy of the building).

Defects are a very common cause of disputes on construction projects. The natural reaction to defects is to quickly apportion blame and seek redress to put the works back in the position they would have been if there had not been a defect. However, it is generally wise to take the time to correctly determine the cause of the defect, to assess the range or possible remedial actions and to assess the consequences of the resulting delay, disruption and cost of remediation against the impact of the defect. This may take time, particularly if it requires that the works are opened up and tested, and it is important that any investigations carried out by individuals with the capability of diagnosing the defect, assessing the extent of different parties responsibility and recommending suitable corrective measures. It may be that on proper consideration, it is in the clients interest to seek an alternative, negotiated solution rather than simply to seek redress.

When defects are identified before the end of the defects liability period, the contract will generally allow the contractor to carry out necessary remedial work. However, if the client requires that works are opened up and tested, and then no defect is found, they will generally have to bear the costs.

If defects become apparent after the defects liability period, there is generally no right for the contractor to return to the site to undertake remedial work and the client may employ others to correct the defect and claim damages from the contractor.

Losses may be assessed based on the reasonable cost of the remedial work, or where the cost of remedial works would be wholly disproportionate, the difference in the value of the works as a result of the defect, and the loss of amenity that the client has suffered.

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