Construction Defects
A construction defect is any aspect of a building project that fails to meet agreed standards, whether due to poor workmanship, faulty materials, design errors or breach of statutory duty.
Construction defects commonly fall into two categories:
- Failure to meet contractual specifications:
- Workmanship: substandard or careless construction practices
- Materials and goods: use of defective or low-quality products
- Design flaws: inadequate or erroneous design work
- Failure to comply with statutory requirements:
- Sale of Goods Act 1979 and Sale of Goods and Services Act 1982, which imply terms of quality and fitness. Many construction contracts include clauses expressly excluding implied warranties.
Types Of Construction Defects
Understanding the nature of a defect is key to determining liability and the appropriate remedy.
Patent Defects are visible and discoverable through reasonable inspection during the defect liability period (e.g. cracked tiles, misaligned windows).
Latent Defects are hidden and undiscoverable through reasonable inspection. Patent defects often emerge long after project completion (e.g. water ingress, structural instability, fire safety breaches and faulty electrical installation). These issues can pose serious financial, legal and safety risks if left unaddressed.
Betterment And Set-Off
Betterment arises when remedial works lead to an improvement beyond the original contract specification. This often becomes contentious in damage claims and questions arise as to whether a party has taken sufficient steps to mitigate losses or been unjustly enriched.
Set Off is a contractual or equitable right that allows a party to reduce the amount they owe by deducting sums relating to defects, damages or other breaches of contract. It is a method of ‘netting out’ potential claims and counter-claims in a construction project.
Understanding Betterment and Set-Off is essential to properly quantifying and defending defect claims.
Key Contractual Provisions
Construction contracts typically include detailed clauses addressing how defects should be managed, including:
- Defects Liability Period: the post-completion window within which the contractor remains responsible for defects
- Notice and Rectification Timeframes: strict deadlines agreed and the outset of projects
- Certificates of Making Good: issued once defects have been resolved, satisfactorily
Our Team has experience negotiating and enforcing key defects clauses in high-value contracts.
Identifying Defects And Attributing Liability
Defect disputes are often contentious and complex. Disputes arise not only in relation to who is responsible for defects and the appropriate remedy to be applied, but also as to whether defects exist at all.
Our Team regularly works alongside independent experts (surveyors, engineers, fire consultants) to establish the nature and extent of defects, causation and liability for defects and the cost and scope of remedial works.
Managing Construction Defects: Proactive Legal Steps
Managing construction defects effectively starts with proactive legal and contractual preparation:
- Get the contract right.
- Clearly define standards for workmanship, materials and design.
- Understand your defect clauses.
- Know your rights and responsibilities.
- Act quickly.
- Serve notices within time and follow contractual procedures strictly.
- Maintain thorough records.
- Document inspections, communications and remedial works.
- Engage early with legal and technical advisors.
- Avoid a “wait and see” approach.
If disputes are unavoidable, Our Team can assist in court proceedings, arbitration, adjudication, mediation and/or expert determination.
Relevant Legislation And Limitation Periods
Construction defect claims are governed by various legal frameworks, each with strict time limits, including:
- Building Safety Act 2022: 30 years retrospectively (pre-28 June 2022), 15 years prospectively (from and including 28 June 2022)
- Defective Premises Act 1972: 6 years from completion
- Latent Damage Act 1986: 3 years from discovery of the defect
- Limitation Act 1980: 6 years for standard contracts and 12 years for deeds
We will assess your case and ensure that any claim is brought within the relevant statutory timeframe.
Legal Assistance
If you need help in relation to defects including drafting and negotiating robust contract clauses, assessing defects and legal exposure or strategic advice in relation to dispute resolution alternatives, we can help.
We recognise that every dispute is unique and strive to offer pragmatic, tailored and creative legal solutions and to maximise outcomes for our clients.
How To Get In Contact
If you require advice on Construction Law and are interested in finding out how we can help, please contact Paul O’Donnell at paul.odonnell@culbertellis.com or call 07521 417579.
