Partial possession of the site by the client
As construction nears completion, there can be considerable pressure to allow the client or tenants to take possession of part of a building or site, even if the works are ongoing or there are defects that have not been rectified. This can be programmed as part of the works through a requirement for sectional completion, but in the absence of such a provision many contracts offer the more open-ended option of partial possession.
The effect of partial possession is that:
- Any part for which partial possession is given is deemed to have achieved practical completion.
- Half of the retention for that part must be released.
- The defects liability period (or rectification period) begins for that part.
- Liquidated damages reduce proportionally.
- The client is responsible for that part and should insure it.
The contractor is not obliged to allow partial possession (although permission cannot be unreasonably withheld), and may not wish to, if for example access routes are difficult to achieve, it would disrupt the works, or it would incur additional costs. There could also be additional difficulties if the occupants of the part that has been possessed disrupt the contractor, which could result in a claim for extension of time and / or loss and expense.
An alternative arrangement might be for the client to 'use or occupy' the works. This is different from possession in that the client does not have sole use of the works, and the contractor remains in possession, with responsibility for insurance and so on.
Partial possession requires particular consideration of:
- Difficulties with logistics on site.
- The protection of completed parts of the works.
- The provision of appropriate insurance.
- The adoption of appropriate health and safety measures to deal with risks resulting from occupation of areas adjacent to, or only accessible through ongoing construction works.
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