DEALING WITH CONSTRUCTION DEFECTS: YOUR RIGHTS AND OPTIONS AGAINST THE CONTRACTOR

Imagine finally seeing your construction project come to life—months of planning, investment, and anticipation have culminated in the completion of your dream building. But soon after, cracks appear in the walls, doors refuse to close properly, or the paint begins to peel. Defects can quickly turn that dream into a nightmare, leaving you wondering, "What now?"?

Understanding your rights and options when construction defects arise can make all the difference in effectively addressing the issues without escalating costs or disputes. Here’s an insightful guide to help you navigate the process and hold your contractor accountable.

What Is the Defects Liability Period, and Why Does It Matter??

In construction contracts, there’s a built-in safety net known as the defects liability period. Think of it as a grace period that kicks in after the contractor has achieved practical completion—meaning the project is complete enough to be used for its intended purpose, but not yet handed over without a final review.?

This period, usually ranging from 6 to 12 months, allows any hidden defects to reveal themselves. It’s a window of opportunity where the contractor is obligated to return and make necessary repairs, ensuring that the building meets the standards outlined in the contract.

Identifying Defects: What Counts as a Defect??

Not every blemish qualifies as a defect, so it’s essential to distinguish between what’s merely an aesthetic imperfection and what constitutes a legitimate contractual fault. Here are the most common types of defects you might encounter:

1. Poor Workmanship: When the quality of work doesn’t meet the specified standards—think uneven tiles, poorly installed plumbing, or shoddy finishes.
2. Substandard Materials: Using materials that don’t meet the agreed specifications or industry standards, such as low-quality cement or inferior paint, can lead to significant issues over time.
3. Design Flaws: Errors in the design itself, resulting in structural problems, inadequate drainage, or inefficient use of space.?

Your Rights as an Employer: What Can You Do When Defects Are Found??

When defects are detected, you, as the employer, have several options to ensure your project is completed to the expected standard. Here’s what you can do:

1. Call the Contractor Back to Fix the Defects?

The most straightforward solution is to notify the contractor of the defects and give them the opportunity to rectify the issues. Most construction contracts contain a defects clause, obligating the contractor to return and make repairs at no additional cost during the defects liability period.

• Pro Tip: Prepare a comprehensive list of all defects (known as a "snagging list") and send it to the contractor in writing. This ensures clarity on what needs fixing and sets a clear timeline for completion.?

2. Engaging a Different Contractor—But Beware!?

If the original contractor refuses to address the defects or has proven unreliable, you may be tempted to hire another contractor to fix the problems. This is an option, but proceed with caution:

• Conditions to Consider: You should only take this step if the original contractor has been given a fair chance to rectify the defects and has failed to do so. Additionally, if the defects were caused by serious negligence or fraud, engaging a new contractor becomes more justified.
• Cost Implications: You have the right to recover the costs of repairs from the original contractor, but you must act reasonably. This means not opting for an excessively expensive solution when a more economical one would suffice.

3. Claiming Damages: When Defects Become Expensive?

If the defects have caused additional financial losses or the contractor’s refusal to fix them has led to delays, you may be entitled to claim damages. This legal remedy allows you to recover compensation for the costs incurred to bring the work up to the required standard.

• How It Works: The compensation should cover the expenses related to rectifying the defects and any other consequential losses you’ve suffered, such as lost rental income due to project delays.

The Contractor’s Obligations: Why They Should Fix the Defects?

It’s not just about what you, as the employer, are entitled to; the contractor also has obligations to fulfill. During the defects liability period, they have the right—and the duty—to return to the site and address any faults. This process ensures they complete the project as per the contract’s requirements, maintaining their professional reputation and avoiding potential legal battles.

When Is the Job Truly Done? Completing the Defect Rectification Process?

Once the contractor has attended to all defects, the employer (or their representative) should conduct a thorough inspection to ensure the work now meets the contractual standards. If everything checks out, a certificate confirming that all defects have been rectified is issued, officially closing the project.?

Final Thought: This phase is your last opportunity to ensure all issues have been addressed before the contractor's obligations end. Don’t rush it—take the time to conduct a meticulous review.

CONCLUSION?

Dealing with construction defects can be frustrating, but understanding your rights and options can help you manage the process effectively and ensure your project reaches the quality you envisioned. The defects liability period is there to protect your investment, giving you the leverage to demand that the work meets the agreed standards.?

For expert advice on construction contracts, defect disputes, or to ensure your rights are protected every step of the way, reach out to us at Ameli Inyangu & Partners Advocates. Our experienced team is here to guide you through the complexities of construction law and safeguard your interests.?

Contact Us:

• Phone: +254 722 367 647
• Email: [email protected]

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