Defects

Defects

Defects can be a major source of disputes on construction projects, including arguments about whether something is in fact a defect, the requirement (or right) for a contractor to rectify defects, latent (hidden) defects and the duty to warn about defects in other parties’ work.

There is no common or universal definition of ‘defect’ but, in broad terms, it is work that does not meet a specification or standard required by a contract due to fault(s) in the work, materials or design, or because of deficiencies in the quality of the work. For more detail on what a defect is, how defects can arise, and relevant case law, see Practice Note: Defects claims in construction—What is a defect?

There is a distinction in construction law between patent and latent defects—the former is a defect that is detectable during the works or during a defined period following practical completion known, usually, as the defects liability period. Note that a defect does not have to have been observed/detected in order to be patent; it is sufficient if the defect was ‘observable’. Thus, if a defect is capable of being

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

TAKE A FREE TRIAL

Latest Construction News

Adjudication—claimant’s insolvency should not be used as a ‘shield’ to enforcement (Malin v Volkerfitzpatrick)

Construction analysis: The Technology and Construction Court (TCC) enforced an adjudicator’s decision in favour of a claimant in administration, subject to a stay of execution. Though the defendant maintained a counterclaim against the claimant, and the claimant had offered no security in respect of that counterclaim, the court was not satisfied that the counterclaim was strong enough to justify an outright refusal to enforce.

Contractual interpretation and termination: Misunderstanding of contract terms results in repudiatory breach (BNP Paribas Depository Services v Briggs & Forrester)

Construction analysis: The [Technology and Construction Court (TCC)] granted declarations sought by an employer in relation to unlawful suspension and termination of a design and build contract and the contractor’s consequent repudiatory breach. The TCC held that suspension and termination notices served by the contractor, in relation to an alleged prevention of work by the owner by its failure to provide instructions in relation to asbestos removal work and structural repairs, were not valid.

MHCLG publishes Remediation Acceleration Plan to address unsafe cladding

The Ministry of Housing, Communities and Local Government (MHCLG) has published a new Remediation Acceleration Plan (RAP), aimed at expediting the removal of unsafe cladding in England, identifying all unsafe buildings, and supporting residents from the financial burdens of remediation. The plan sets key targets for 2029, including remediating all 18m+ buildings with unsafe cladding in government-funded schemes by 2029, and ensuring all 11m+ buildings are either remediated, have a completion date, or landlords face severe penalties. The RAP is supported by increased enforcement investment, which will increase the capacity of local authorities, fire and rescue authorities and the Building Safety Regulator (BSR) to manage hundreds of cases annually. The publication of the RAP coincides with a Parliamentary debate on the findings of the Grenfell Tower Inquiry’s final report. During the debate, it was announced that a continuous review process for statutory guidance to building regulations will be introduced, covering fire safety and building design by the BSR. In addition, there will be a review of how the Building Regulations guidance is produced, updated, and communicated to the construction industry.

FIDIC announces renewal and expansion of contract agreement with AfDB

The International Federation of Consulting Engineers (FIDIC) has announced the renewal and expansion of its agreement with the African Development Bank (AfDB) for a further five years. The new agreement grants AfDB a non-exclusive licence to use ten key FIDIC standard contracts, including the 2022 Rainbow Suite, the Green Book 2021, the reprint of Emerald Book 2023 contract for Underground Works, and the Dredgers contract 2016. These contracts will be incorporated into the AfDB's main standard bidding documents for projects it finances.