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Last edited 26 Nov 2019
Remedial works in construction
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:
- 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 client's beneficial occupancy of the building) or 'cosmetic' (not in compliance with the contract, but not affecting the client's 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 be 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.
NB The Home Quality Mark One, Technical Manual SD239, England, Scotland & Wales, published by BRE in 2018, suggests that: 'Where systems or services fail commissioning or are not performing as expected, remedial works are the measures taken to ensure systems and services pass commissioning. These measures may involve performing repairs and adjusting settings appropriate to the particular home being commissioned. These measures may also involve providing guidance or advice to occupants, where poor performance is partly due to how they are interacting with their systems or services (for example, where seasonal commissioning is carried out). The remedial works implemented must be in accordance with the recommendations made by the Commissioning strategy.'
 Related articles on Designing Buildings Wiki
- Abortive work.
- Beneficial occupation.
- Building pathology.
- Collateral warranty.
- Contaminated land.
- Cracking and building movement.
- De minimis.
- Defects liability period.
- Ground heave.
- Making good.
- Opening up works for inspection and testing.
- Set off.
- Site inspection.
- Third party rights.
- Timber preservation.
 External references
- Fenwick Elliot, Liability for Defects in Construction Contracts - who pays and how much? 2008.
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