Defects will occur in buildings. It is one of the great certainties in construction, the equivalent of death and taxes in life more generally
Defining a defect
Generally a defect is
anything which renders the [works] unfit for the use for which it is intended, when used in a reasonable way and with reasonable care
The standard form construction and engineering contracts define defects differently:
- any defects shrinkages or other faults [appearing] within the relevant Rectification Period due to any failure of the Contractor to comply with his obligations under this Contract [JCT DB 2016 clause 2.35]
- a part of the works which is not in accordance with the Works Information, or a part of the works designed by the Contractor which is not in accordance with the applicable law or the Contractor’s design which the Project Manager has accepted [NEC3 clause 11.2(5)]
- any defect in or damage to any part of the Works and which arises either from any defective materials, workmanship or design or from any act or omission of the Contractor during the defects period except where the defects arose from designs provided by the Purchaser or Engineer in relation to which the Contractor disclaimed responsibility under clause 13.3 [MF/1 rev 6 clause 36.2]
Types of defect
There are two types of defect: patent and latent.
- Patent defects are defects that are visible or capable of being discovered (observed and observable).
- Latent defects are not reasonably discoverable and often come to come to light after completion and even after the defects period.
The next post considers when those defects can be resolved by the parties.
Quote at top from article by Harrison Consult quoting Professor Anthony Lavers. Definition of a defect from Yarmouth v France (1887) 19 QBD 647. See also Tate v Latham [1987] 1 QB 502 where a defect meant the absence of an item essential to complete the works – even if the works were operable without the item.
