Defects in construction
Defects are aspects of the works that are not in accordance with the contract.
Defects may occur because of:
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 when settlement causes cracking in the building. When a latent defect becomes apparent, it becomes patent rather than latent.
During the defects liability period, the client reports any defects that arise to the contract administrator who decides whether they are defects in the works (i.e. works that are not in accordance with the contract), or whether they are in fact maintenance issues. If the contract administrator considers that they are defects, then they may issue instructions to the contractor to make good the defects within a reasonable time.
NB: It is the contractor's responsibility to identify and rectify defects, not the clients, so if the client does bring defects to the contractor's notice, they should make clear that this is not a comprehensive list of all defects.
At the end of the defects liability period, the contract administrator prepares a schedule of defects, listing those defects that have not yet been rectified, and agrees with the contractor the date by which they will be rectified. The contractor must in any event rectify defects within a reasonable time.
When the contract administrator considers that all items on the schedule of defects have been rectified, they issue a certificate of making good. This has the effect of releasing the remainder of any retention monies and will result in the issuing of the final certificate.
It is important to note that the defects liability period is not a chance to correct problems apparent at practical completion, it is a period during which the contractor may be recalled to rectify defects which appear. If there are defects apparent before practical completion, then these should be rectified before a certificate of practical completion is issued.
This can put the contract administrator in a difficult position, where both the contractor and the client are keen to issue the certificate (so that the building can be handed over) and yet defects (more than a de minimis) are apparent in the works. Issuing the certificate under these circumstances could render the contract administrator liable for problems that this causes, for example, in the calculation of liquidated damages.
If the contract administrator is pressured to certify practical completion even though the works are not complete, they might consider informing the client in writing of the potential problems of doing so, obtaining written consent from the client to certify practical completion and obtaining agreement from the contractor that they will complete the works and rectify any defects. If the contract administrator is not confident about the potential problems that may result from early certification, they might advise the client to seek legal advice.
After the defects liability period, the building owner does not have a contractual right to insist that the contractor rectifies defects not notified during that period. The building owner must instead seek redress in an action for damages, for breach of contract, or for negligence. In the case of dwellings there is a statutory remedy provided by the Defective Premises Act 1972. These rights of action are not perpetual; actions for breach of contract are time barred after six years from the date of the breach (usually the completion of the building although with a failure of design the breach may have occurred earlier), or for a contract under seal, the period is 12 years
For more information see: Latent defects.
NB: NEC suggests that in the ECC (Engineering and Construction Contract), a defect is '...a part of the works which is not as stated in the Works Information or not in accordance with applicable law or the accepted design. There is a reciprocal obligation on both the supervisor and contractor to notify each other as soon as they are aware of a Defect.' At or just after the defects date the supervisor issues a defects certificate, which either certifies that there are no defects, or lists any uncorrected defects.
In a submission to the Inquiry into the Construction of Edinburgh Schools in 2016, the Royal Incorporation of Architects in Scotland (RIAS) criticised the transfer of responsibility from construction professionals to other parties less involved with the design process and sited the dilution of the role of the design team as one of the causes of poor quality construction. See Inquiry into the construction of Edinburgh schools view of the RIAS for more information.
[edit] Related articles on Designing Buildings Wiki
- Aftercare manager.
- Alkali-silica reaction (ASR).
- Building pathology.
- Certificate of making good defects.
- Common mistakes on building drawings.
- Corrosion.
- Cracking and building movement.
- Creep.
- Decennial liability.
- Defective Concrete Blocks Grant Scheme.
- Defective Premises - Liability and Measure of Damages.
- Defective Premises Act.
- Defects certificate.
- Defects correction period.
- Defects date.
- Defects in brickwork.
- Defects in dot and dab.
- Defects in stonework.
- Defects liability period.
- Defects list.
- Degradation of construction materials.
- Design liability.
- Deterioration.
- Dilapidations.
- Failure modes and effect analysis (FMEA).
- Failure of metals.
- Fit for purpose.
- Flat roof defects.
- Flooring defects.
- Forensic investigations: can we trust them?
- Guarantees.
- Housing defects.
- Latent defects.
- Making good.
- Opening up works for inspection and testing.
- Patent defects.
- Practical completion.
- Professional consultant's certificate.
- Professional indemnity insurance.
- Punch list.
- Pyrite and mica redress issues in Dail Eireann.
- Reasonable skill and care.
- Remedial work.
- Retention bond.
- Roofing defects.
- Schedule of defects.
- Surfside condo collapse: climate change demands adaptation in design and approach.
- Using satellite imagery to monitor movements in megaprojects.
- Why do buildings crack? (DG 361).
- Workmanship.
[edit] External references
- Blake-Turner & Co. Solicitors: Building defects; the legal position.
Featured articles and news
Ministers to unleash biggest building boom in half a century
50 major infrastructure projects, 5 billion for housing and 1.5 million homes.
RIBA Principal Designer Practice Note published
With key descriptions, best practice examples and FAQs, with supporting template resources.
Electrical businesses brace for project delays in 2025
BEB survey reveals over half worried about impact of delays.
Accelerating the remediation of buildings with unsafe cladding in England
The government publishes its Remediation Acceleration Plan.
Airtightness in raised access plenum floors
New testing guidance from BSRIA out now.
Picking up the hard hat on site or not
Common factors preventing workers using head protection and how to solve them.
Building trust with customers through endorsed trades
Commitment to quality demonstrated through government endorsed scheme.
New guidance for preparing structural submissions for Gateways 2 and 3
Published by the The Institution of Structural Engineers.
CIOB launches global mental health survey
To address the silent mental health crisis in construction.
New categories in sustainability, health and safety, and emerging talent.
Key takeaways from the BSRIA Briefing 2024
Not just waiting for Net Zero, but driving it.
The ISO answer to what is a digital twin
Talking about digital twins in a more consistent manner.
Top tips and risks to look out for.
New Code of Practice for fire and escape door hardware
Published by GAI and DHF.
Retrofit of Buildings, a CIOB Technical Publication
Pertinent technical issues, retrofit measures and the roles involved.
New alliance will tackle skills shortage in greater Manchester
The pioneering Electrotechnical Training and Careers Alliance.