It is the nature of construction projects that faults and defects caused by failures in design, workmanship or materials, may not become apparent or readily detectable (even with the exercise of reasonable care) until many years after completion of the project, long after the end of the defects liability period. Such defects are known as latent defects (as opposed to patent defects which are apparent).
Examples of common latent defects include:
- Defective basement tanking allowing water penetration.
- Inadequate wind-posts or wall ties causing movement damage to walls.
- Under-strength concrete or misplaced reinforcement allowing movement damage to the structure.
- Inadequate foundations causing subsidence of the building.
It is also a feature of construction projects that the completed building will have a life-cycle of many years often with a succession of future owners who had no involvement in the original construction, but who have a liability to maintain the structure.
After the end of 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 (as will often be the case with latent defects). 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 6 years from the date of breach (usually the completion of the building although with a failure of design the breach may occur earlier) see the Limitation Act 1980 Section 5. For a contract under seal, the period is 12 years (see the Limitation Act 1980 Section 8). Clearly therefore it is important to the building owner that all contracts are made under seal; not so for the contractor, the professional consultant or their insurers. Where the claim is for negligence, the time limit is 6 years from the date on which the cause of action accrued, which will be the date when the damage occurred.
Complex arguments arise in respect of economic loss. This may be many years after the completion of the building. The provisions of the Latent Damage Act 1986 Section 1 (by way of a new Section 14A to the Limitation Act) provides a limitation period for negligence of 3 years from the first knowledge of the cause of action and (by way of a new section 14B to the Limitation Act) an overriding 15 year long-stop from the act of negligence giving rise to the damage. Section 3 of the Act is important as it gives a new cause of action to successive owners.
Commercial fixes for latent defects and successive owners include, collateral warranties, guarantees, building warranty schemes and latent defects insurance. Latent defects insurance first appeared in the UK in the 1980’s, imported from Europe and known as decennial insurance. It soon fell out of favour as a result of being over-hyped and overpriced. Latent defect insurance is now making a comeback.
 Related articles on Designing Buildings Wiki.
- Alternative dispute resolution.
- Caveat emptor.
- Certificate of making good defects.
- Collateral warranties.
- Completion of construction contracts.
- Contract conditions.
- Decennial liability.
- Defects liability period.
- Design liability.
- Final certificate.
- Flooring defects.
- Ground heave.
- Opening up works for inspection and testing.
- Patent defects.
- Practical completion.
- Professional indemnity insurance.
- Site inspector.
- Soft landings.
 External references
Featured articles and news
RIAS criticise the transfer of responsibility from construction professionals to other parties less involved with the design process.
Take a look at this new music/arts centre in Calgary, with subtle curves and a skybridge.
Building Automation and Control Systems (BACS) market in North America continues to grow.
Frank Lloyd Wright's last major project, the Solomon R. Guggenheim Museum in New York.
Designing Buildings Wiki attended the Surface Design Show and spoke with 2 leading figures in natural stone and hotel design.
How can data from homes help plan smarter cities?
CIOB launch new toolkit to help tackle modern day slavery in construction.
Have a read of our introductory article on bored piles.
Have a look at this striking new 'H-shaped' office building in China.
Read about the pile foundation solutions BAUER have delivered for Battersea Power Station.
As it's Valentine's Day, read the story of this 'labour of love' castle built on Heart Island.
An introductory guide to the project team for building design and construction.