Last edited 19 Oct 2020

Design and build: occupation and defects liability period

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The occupation and defects liability period takes place after the client has taken possession of the development for occupation. During this stage, any defects are rectified and the final certificate is issued signifying that the construction works have been fully completed. As the development is now occupied, and the contractor no longer has possession of the site, close co-operation is required between the contractor and the client so as so not to disturb occupants, whose activities will take priority over work required to rectify defects.

[edit] Starting the work stage.

The employer's agent arranges a start-up meeting to plan the work stage.

The client may identify a requirement to appoint additional independent client advisers (such as site inspectors) in particular if the consultant team has been novated or switched to the contractor.

[edit] Rectifying defects.

If the contract allows, the employer's agent may review all relevant events that might be considered to have affected the completion date and may adjust the completion date accordingly.

The client reports any defects in the works to the employer's agent. On large projects the contractor may set up a hot desk for responding to any complaints or to provide assistance required by the incoming occupants. The employer's agent instructs the contractor to rectify the defects and the contractor and client agree a programme for rectifying defects in a way that minimises disruption to the client.

The contractor rectifies the defects.

If rectification works are significant, it may be necessary to re-appoint the principal designer (whose appointment may have terminated on certification of practical completion) and it may be necessary to amend to the health and safety file.

If any amounts are due to the contractor, they prepares interim applications for payment (or the client might issue payment notices, depending on the provisions of the contract).

The employer's agent checks applications for payment and issues payments notice to the contractor. The notices must be issued within five days of the dates for payment set out in the contract. If the client intends to pay less than the notified amount, a pay less notice must be issued giving notice of the amount that will be paid and the basis for its calculation. The client pays the contractor by the final date for payment.

At the end of the defects liability period, the employer's agent arranges inspections of the works and prepares a schedule of defects which is issued to the contractor. The employer's agent agrees the programme for rectification of items on the schedule of defects with the contractor, which should in any event be rectified within a reasonable time.

The contractor rectifies items listed on the schedules of defects and informs the employer's agent. The employer's agent arranges final inspections of the works and if satisfied issues a statement confirming that the defects have been made good.

If a site waste management plan has been prepared, the contractor may reconcile the planned handling of waste (as described in the site waste management plan) against what actually happened and provide an explanation of any differences.

[edit] Issuing the final statement.

The employer's agent co-ordinates preparation of a final report.

The contractor co-ordinates preparation of the final statement (and supporting information) for the employer's agent.

The employer's agent checks the final statement and gives notice to the contractor of the amount to be paid. If the final statement is not disputed it becomes conclusive that all items identified in the employer's requirements as for the 'approval' of the client are be deemed to have been approved. It is also conclusive regarding extensions of time and claims for loss and/or expense.

The client makes payment by the final date for payment (including the release of any remaining retention).

Issuing the final certificate may signify the end of independent client advisers appointments. If post-occupancy evaluation services are required, these may involve a new appointment.

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