Tolson III: The Reckoning

The time has come for the third and final installment of the tale of my building work (the first two were on 12 and 19 December 2003).

The ending is a happy one. The budget may have been blown, but the finished result is testimony to the success of the process and the input of all the players. So no need for the violins or for you to shed a crocodile tear for a lawyer and his lot.

You heard last time that the family were back in residence after more than a year in temporary accommodation, and you heard my views on partial possession: when it should be taken or refused.

It is a fact of life that building works, like the arrow that never reaches the target in the Eleatic paradox, have a propensity to get closer and closer to completion but never quite to arrive. There is a honeymoon period after moving in. When that fades, it is amazing how little things – that not-quite-finished look – can gain a big nuisance value.

Excuse me if I’m a little cynical about the building industry’s invention of the concept of “practical completion”. The term is widely understood in the industry to mean the stage at which the works are reasonably ready for their intended use, notwithstanding that there may be snagging. The authorities, however, suggest a somewhat more rigorous test, but I won’t take you there now …

In this piece I deal with snagging, and what happens after practical completion but before the issue of the certificate of making good defects – which usually, but not always, leads to that fabulous beast, the final certificate.

The defects liability period, which the Tolson family are now in, is akin to a guarantee period, and the contractor usually has the obligation to remedy defects appearing within this time.

It also has the right to do so, which is a point overlooked at the employer’s peril.

The contractor is usually required to remedy these defects free of charge, but the practice is to the benefit of both parties, since the contractor would otherwise be liable for the greater cost of bringing in another contractor. An abatement in the price is possible, but usually only where the employer decides to leave a discrepant piece of work or material as it is.

But there are some myths that contractors perpetrate. One is the fairly widespread misconception that the defects liability period is intended as a time when the contractor attends to snagging items at the date of practical completion. The other is they can fold their arms until the architect’s list hits their doorstep at the end of the liability period.

In fact, the JCT contracts say there should not be any outstanding items at practical completion, and the liability period is the time in which the parties wait and see what defects emerge.

Therefore the liability period is when latent defects, shrinkages or other faults, which appear as a result of materials or workmanship not being in accordance with this contract, are to be made good. Usually the architect issues a defects list no later than the standard JCT cut-off of 14 days from the end of the liability period, but there is nothing to stop any defects that come to light before then being brought to the contractor’s notice.

In my case, my contractor has embraced the liability period and attended without demur (well, almost). Things are rather different elsewhere in the big wide world. A great deal of improvement has taken place over the past five years or so, but the industry is still slow at getting the best out of its supply chains where co-operation between several actors is central to success, be it for the putting-up, the procurement, or the design. Most of the national housebuilders have much to learn. A recent MORI poll for The Housing Forum, shows what most in the industry already know – that standards are pretty lousy.

Indeed much of the housebuilding industry regularly employs specialist snagging contractors to bring their developments to an acceptable standard after completion.

At the buyer’s end, the market has met the demand of unhappy prospective and retrospective purchasers through numerous professional new-home snagging inspection companies and even a dedicated website: www.snagging.org.

Simon Tolson is senior partner in Fenwick Elliott