Defects at practical completion

Often under building contracts certain provisions require the contractor to remedy defects appearing within the rectification period, but do not expressly refer to the completion of any known outstanding items which exist at the time when practical completion is achieved. This can sometimes lead to a strict interpretation of what amounts to practical completion; namely, that nothing at all must be awaiting completion however minor in nature.

Some forms define practical completion to permit the issue of the appropriate certificate where minor outstanding works remain, provided that neither their existence nor their execution will affect the use of the building, although there is a danger that if the architect/contract administrator certifies practical completion while there are some patent defects, half the retention is released and the contractor may never return. The employer's common law rights will be lost if the contractor goes into liquidation and the employer may have grounds to say that the architect/contract administrator was negligent in issuing the certificate and look to them for compensation for the cost of rectifying the defects that exceed the retention sum.

Partial possession

Where (with consent of the contract), the occupier takes possession of part of the work in the contract, the actions outlined here must be applied to each part as though it were itself a complete building. Retention money will be released in the same ratio as the cost of the part to the whole and, in the same way, the rectification period will apply to each part as it is taken into possession by the occupier. Separate ccertificates of partial completion and of making good defects will also be required for the whole of the works (in addition to the certificates for the last completed part of the work).

Sectional completion

When the contract has been specifically amended for completion in sections by the use of the sectional completion supplement, a duty is imposed upon the contractor to complete in stages in accordance with the contract. Accordingly, each section may have a different start and cessation date for the rectification period. Separate certificates of sectional completion and of making good defects will be required for each section of works. A certificate of practical completion and a certificate of making good defects will also be required for the whole of the works (in addition to the certificates for the last completed section).