The items that are not defects

A defect is work that does not comply with the contract. That definition sounds sufficient until a schedule arrives with a hundred and forty items on it after a year of occupation.

The four categories that are not defects

Wear and tear. A building in use degrades. Scuffed paint in a school corridor after a year is not defective decoration.

Damage by the occupier. A door frame damaged by trolleys, a floor marked by furniture, a ceiling tile broken during an IT installation. The contractor did not cause any of it.

Failure to maintain. Gutters that were never cleared, filters never changed, seals never inspected. Where the operation and maintenance information specified a regime and the regime was not followed, the consequences are not defective work.

Design changes. The item works as specified and the occupier now wants something different. That is a variation, priced as one, and it is not free because the rectification period happens to be running.

Design defects sit differently again

Where the design was the contractor’s responsibility, a design failure is its defect. Where the design came from the employer’s consultants, workmanship that faithfully executed a flawed design is not defective workmanship, whatever the outcome looks like.

That distinction runs through most serious defects arguments, and it is why establishing who designed the element usually comes before establishing whether it failed.

Latent versus patent

Patent defects are apparent on reasonable inspection; latent ones are not. The rectification process deals with what has appeared. A latent defect that emerges in year six is a matter for breach of contract and limitation, not for a schedule.

How to run the negotiation

• Issue the schedule promptly, while it is still obvious which items are which.
• Categorise as you go: defect, occupier damage, maintenance, variation.
• Record disputed items as disputed rather than leaving them outstanding, so the reason for the block is visible.
• Deal with the variations as variations. Some will be worth doing while the contractor is on site.

Why promptness matters more than anything

After three months of argument nobody can tell whether the mark on the floor was there at handover. Photographs at practical completion, and a schedule issued when the period ends rather than when somebody gets round to it, resolve nine tenths of this before it becomes a position.