When working in the construction industry, you are probably well prepared for handling any obvious defects, even if these slow down or disrupt the work you are conducting.
However, latent defects can present a more significant problem as they can sometimes take months or years to manifest.
This leaves many people in the construction industry unsure of who is liable for handling latent defects and when this liability may end.
We are going to take a look at the essential information surrounding latent defects so that you can understand your rights and responsibilities.
What do I do when I spot a latent defect?
If you are the one discovering and reporting a latent claim, then it is imperative that you handle the matter with certainty and a delicate touch.
There is always a risk that the latent defect may be wrongly attributed to the construction work that you have been involved in, so it is imperative that you create a detailed record of how and why you came to discover the fault.
Supporting any written reports with photographed evidence can help to demonstrate the issue, and it is beneficial to document when there are cosmetic issues and when the defect extends to functionality or safety.
You should attempt to define the fault and give some explanation as to how the defect has arisen and why it may have remained undetected for a period of time.
This is usually done by obtaining independent expert evidence and you should consider getting such evidence and guidance at an early stage.
Where possible, determining the full financial impact of the latent defect can help formulate a claim should one be required.
Once you have compiled a detailed report, you will then be at liberty to serve a formal notice under the contract’s latent defects clause (if present) or via protocol letters to preserve the right to claim and comply with any pre-action requirements.
You should be aware that the Limitation Act 1980 imposes a six-year limitation period for contract and tort claims, running from the date on which the cause of action accrued or 12 years for breach of contract if the contract has been signed as a Deed.
In addition, there are other limitation periods you should be aware of in respect of negligence or under the Defective Premises Act, which has been updated by the Building Safety Act.
Our team can assist and advise you more fully with this, should you require such advice.
Courts generally treat the cause of action as accruing when the defect is, or ought reasonably to have been, discovered rather than the date of practical completion, albeit often practical completion is a good starting point.
This is why justifying the lack of prior discovery is an important part of the claim.
It is therefore important that you seek advice at an early stage so you can be advised fully on limitations.
This is because once the limitation has passed, you will be prevented from bringing any claim.
When entering into a contract in the construction industry, you should ensure that there are clearly defined latent defect clauses that can better highlight the liability period and potentially extend it if you feel that the work undertaken is high-risk.
What happens if I need to defend against a latent defect allegation?
The reverse is true regarding the presence of latent defect clauses in contracts.
If there are no latent defect clauses, or the window of liability is small, then it may be possible that the claim will not be valid.
Similarly, if you can prove that the defect was the result of third-party work and therefore not your responsibility, then you may escape the allegations.
This can be more difficult to prove after the fact, so ensuring that construction work is fully documented and completed to the highest possible standard is the best way to proactively reduce the risk of encountering a latent defect.
It may be possible to turn the claim around on the one who discovers it.
If the employer or manager had an obligation to complete maintenance work that they had been neglecting, then this could be the cause of the defect.
If they have not been maintaining maintenance records, then it will be difficult for them to disprove accusations that the fault is with them.
Whichever side of the latent defect issue you are on, strong record-keeping is the best asset in your possession.
Proving that you have fulfilled both legal and contractual obligations to the fullest extent of your abilities can help keep you compliant and profitable when you work in the construction industry.
For additional help and support, our expert team are on hand to advise you of your rights and responsibilities within the construction sector.
Don’t let latent defect accusations disrupt your construction work. Speak to our team today!