Defects in construction

Defects are aspects of the works that are not in accordance with the contract.

Defects may occur because of:

 Design deficiencies.
 Material deficiencies.
 Specification problems.
 Workmanship deficiencies.

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 reasonableinspection,
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 defectbecomes
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 thecontractor 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
theclient 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 contractorthe 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
theclient are keen to issue the certificate (so that the building can be handed over) and
yetdefects (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 worksare 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 obtainingagreement from
the contractor that they will complete the works and rectify any defects. If thecontract administrator is
not confident about the potential problems that may result from early certification, they might advise
the client to seek legal advise.

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 failureof 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 thedefects date the supervisor
issues a defects certificate, which either certifies that there are nodefects, 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 fromconstruction
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. SeeInquiry into the construction of
Edinburgh schools view of the RIAS for more information.

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