Construction Defects

MACE DAVIES ~ BLOG

Construction defects are common and generally refer to a deficiency in the construction process that leads to a failure in the structure.  Whether that failure is due to workmanship, materials or design, to be classed as a defect these deficiencies must also have caused damage to a person or property whether financial or otherwise i.e., a construction defect must include all 3 of the following:

  1. A deficiency in the construction process itself (resulting from poor design, materials, or workmanship).
  2. The deficiency must lead to a failure in the structure (that is being built during the project).
  3. That failure must cause damage to a person or property (financial damages or otherwise).

Although a defect might be as simple as falling short of an owner’s expectations, sometimes, it could be as serious as a structural defect in the property and the resulting fallout will vary greatly based on the source and severity of the issue.

Unfortunately, defects typically are not discovered until a long time after building works have been completed.

Whilst most defects are minor, defending against some of the more dangerous defect claims is a big and sometimes expensive task.

Patent v’s Latent Defects

Once the type of construction defect has been ascertained, they are commonly classified as being either patent or latent.

Patent defects are those that are known or readily obvious upon inspection. Easily recognised by a contractor, sub, or other trade during normal inspections.  These types of defects are normally aesthetic and easily fixed without invasive methods.

Latent defects, however, are those that are concealed or not easily detected and may not be found even with thorough inspection.  This usually means they are below the surface or a defective system has been used and as a result, are more problematic.

Design Defects

Design defects occur by error or omission – a failure to produce accurate construction documents. Errors usually require redesign and replacement of a component part, while omission can be remedied by adding to a contractor’s scope of work.

Material Defects

Defects that arise from damaged or inadequate building materials are called “material defects”. The parties using these materials are not usually aware of the defect from the manufacturer until after they have already been incorporated into the project. This makes material defects particularly expensive because they may require additional labour and new materials to remedy.

Workmanship Defects

Workmanship defects can range from simple aesthetic issues to structural integrity problems occurring when a contractor fails to build a structure or component part in accordance with the construction documents.  Allocating liability and determining how and who failed to abide by the property standard of care can be extremely complex.

Determining Damages

Determining the scope of damages is particularly challenging, because of the number of factors that can affect the award. For instance: what was the extent of the damage?   The court can include the cost of repairs, the decline in property value, loss of use, court costs, and, in some cases, even punitive damages (if gross negligence or recklessness was present). If there are multiple defendants, then the court will need to determine how to spread liability amongst everyone.

Minimising Construction Defects and Their Impact

Everyone on a project is responsible for minimising construction defects. There are proactive measures everyone can take to decrease the chance of encountering one.

Contract Terms and Policy Coverage

When several people are involved on a project, there are many places where blame could lay. For all project stakeholders (designers, contractors, subs, and suppliers, etc.), the construction contract should clearly assign accountability and confirm that everyone is responsible for their own work.

Also keep an eye out for provisions concerning responsibilities, liabilities, and any risk-shifting language.

A clear understanding of liability coverage will also help minimise your exposure to defect claims, so make sure you confirm that everyone else on the project has sufficient coverage as well.

Summary

If a defect is discovered, perform a walk-through to determine what the issue is and present it to the owner, contractor, or management team as soon as possible, meaning you can decide how to proceed in the most cost-effective way.

Having a quality control programme provides an opportunity to repair the defective work prior to completion, which can reduce monetary damages and prevent future litigation.

Construction defects can quickly turn a project upside down, and, with so many parties involved, they are not always easy to identify or manage.

Everyone involved with a project – from both the design team and the construction team – must do their part to avoid defects. Quality control programs, communication, and documentation are an easy, yet effective way to minimise defective work which can help both your bottom line and reputation.

For all your surveying needs, contact Chris at Mace Davies.

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