In the construction industry, defects are common occurrences when the construction works of a building and/or civil engineering project is completed by the Contractor.
Whilst most defects appear during construction and over the defects liability period as stipulated in most standard forms of construction/building contract, often there are still defects that occur after such period, even when the Certificate of Making Good Defects has been issued by the Superintending Offices of the project. The relevant provisions on defects liability of these forms refer to defects, shrinkages, imperfections, any other faults, etc., with no purposeful definition on defects. Further, there is also no distinction between outstanding and/or not compliant works against defective works, both patent and latent in nature, established to enable a clear demarcation to be made between them so as to facilitate proper and effective contract administration by the parties concern.
Under such circumstances, it is common that the Employer and the Contractor may attempt to push the responsibility of rectifying the defects to each other. The Employer may claim that the defects are latent, whereas the Contractor may content that the defects liability period is over or the defects are due to normal use and fair wear and tear, whereby the Contractor is not responsible or liable for. Consequently, disputes often arise over the category of defects and the party/ies responsible.
In the first of two parts article, Entrusty aims to provide readers with a better understanding of defects, its definition, categories and the party/parties responsible and in dealing with rectifying of the defects, by answering the following:-
• What are defects?
• Who is responsible for the defects?
• How to deal with defects?