Defects

Defects are dealt with differently depending on whether they are identified during the construction period or after (sometimes considerably after) the certificate of practical completion or certificate of making good defects have been issued. They may also be dealt with differently depending on whether the contract specifically defines what a 'defect' is.

Defects should always be brought to the attention of the contractor as soon as possible, preferably in writing, to enable resolution in the most efficient and practical way. While the contract is being performed, the contractor may be incentivised to remedy defects through the withholding of a contractually agreed retention sum or through the payment application process under the contract. Whether or not it is appropriate to issue a 'pay less' notice should be considered.

Following the issue of the defects certificate, however, the employer’s hold is loosened but the employer still retains the ability to pursue the contractor through a breach of contract claim or, in limited circumstances, a claim in tort or possibly the Defective Premises Act (DPA) 1972.

This section is maintained by Matt Collingwood-Cooper of Addleshaw Goddard LLP.

RICS standards: Subsidence in relation to insurance claims

RICS journal article: Using digital documentation and data processing technologies for defect detection

Feature: Defects: cladding systems