Defects Flashcards
What is a defect?
There is no precise legal definition for ‘defect’. Case law suggests that it can refer to both faulty work and issues with the design or construction of a building that falls short of the standards specified by the employer.
Since defects relate to the breaches of contract or breach of a requirement under the contract documents, in the majority of projects this is likely to relate to a breach of the specification in terms of materials, works or workmanship.
What is a patent defect?
In essence, patent defects are defects obvious at the time of construction or before the certificate of practical completion or the certificate of making good defects has been issued.
How are defects treated under JCT?
The architect/contract administrator has a right to open up for inspection any work covered up or to test materials or goods ‘whether or not already incorporated in the Works’. The cost of such inspections or tests is at the employer’s risk unless the work is found not to be in accordance with the contract.
How are defects dealt with under JCT?
The architect/contract administrator has a number of options where work is found to be defective. These include instructing the removal of any defective works, accepting that the defective work can remain or ordering further opening up for inspections or tests to identify the extent of any further non-compliance.
What is a latent defect?
An inherent defect in a property that is due to a defect in design, materials or workmanship which existed at the time of construction but did not become apparent until after completion of the building works.
When is the defects liability period and how long is it?
The defects liability period is the time between practical and final completion.
Length depends on what is stated within the contract, but should typically be 12 months.
What is the defects liability used for?
Generally this period is used to cover ‘snagging items’ that are not serious enough to prevent practical completion from occurring but mean that the works are not quite up to the standard required by the contract.
If the contractor is unable or unwilling to correct defects during this period, the customer may correct the defects at the contractor’s expense.
Can a subsequent purchaser claim against the contractor?
Yes, where the subsequent purchaser has no route to claim in contract because no contractual relationship can be established, or the contractual limitation period has expired, the alternative is to sue in tort, for example, the tort of negligence.
What is needed to prove a negligence claim?
The key requirements for a claimant to establish a negligence claim are to prove:
- it is owed a duty of care;
- there has been a breach of that duty;
- the breach has caused loss or damage; and
- it was foreseeable that the loss was likely to cause the damage in question.
What is the length of limitation period on a simple contract (under hand)?
6 years after PC.
What is the length of limitation period on a deed?
12 years after PC.
What is the length of limitation period under Tort?
6 years after the date on which the damage was suffered (even if undiscovered).
What is the length of limitation period under the Defective Premises Act (residential)?
6 years after completion of the building.
What questions should the CA answer prior to issuing practical completion with defects outstanding?
Should the certificate of practical completion be issued with any defects outstanding that have been identified during the works or prior to practical completion?
Does the acceptance of defective works cause potential damage to the employer in the future?
Do the retention monies held at practical completion cover the outstanding defects identified prior to practical completion and for those that could occur during the rectification period?
If the contract administrator issues practical completion, do their actions affect the employer’s entitlement to liquidated and ascertained damages?
Obligation to inspect the works and the warn the employer and identify patent defects.
What is another term for the defects liability period.
The rectification period
