Latent defects meaning

Repair under the common law Under the common law, a landlord, relative to a tenant, bears notably heavy duties regarding upkeep and repair of the leased premises, see Practice Note: Repair clauses in commercial leases in Scotland—Repair under the common law. Within commercial leasing, landlords will almost invariably aim to exclude all such common law repairing liabilities for the demised premises, though not for common areas in multi-let buildings; see Practice Note: Service charge and outgoing provisions in commercial leases in Scotland. Consequently, tenants usually shoulder substantial repair commitments. The prevalent model is the full repairing and insuring (FRI) lease, under which the tenant assumes responsibility for repairs of every kind save for damage arising from insured risks; see Practice Note: Repair clauses in commercial leases in Scotland—Contracting out of the common law—the full repairing and insuring (FRI) Lease and The modern commercial lease: Stair Memorial Encyclopaedia [466]...

Scrutiny of construction documentation is typically pertinent to assets constructed within 12 years of the purchase date, or, for older properties, where works have been undertaken in the preceding 12-year period; however, treat this timeframe as a practical minimum only, since extended limitation periods for certain building safety-related claims may warrant a broader review for property that is, or includes, residential accommodation. See Practice Note: The construction due diligence process. This Checklist sets out the principal points that must be considered following receipt of the construction documents in relation to the property concerned. The papers should be reviewed at the outset and these key issues evaluated before putting any pre-contract enquiries to the seller. For an example of a list of pre-contract enquiries, see: Construction pre-contract enquiries-checklist. Documents (1) Confirm that a complete suite of construction documents relating to the property's construction and/or to works completed in the last 12 years, or any longer period as appropriate, has been provided and properly...

Any resolution of a dispute should be set out in a signed, enforceable written agreement that precisely records the parties’ terms. This reduces the prospect of later misunderstanding and allows a party to commence proceedings if the other side does not comply. As the agreement is a contract, contract law governs its drafting and interpretation, so it must be written with clarity. This Checklist highlights the key considerations of particular importance to construction disputes. For illustrative clauses and deeper analysis (including drafting notes), see Precedent: Settlement agreement for construction dispute (long form). Ensure that settlement negotiations are conducted on a without prejudice basis State expressly that settlement discussions are conducted on a ‘without prejudice’ basis so that, if talks fail, any proposed concessions cannot be relied upon by the other party in subsequent legal proceedings. Do not assume that terms such as ‘confidential’ or ‘off the record’ offer comparable protection. For further detail, see Practice Note: Without prejudice communications. Who is entering into the settlement?...

Contributory negligence When the defendant holds primary responsibility for the incident, they may assert that the other party contributed to it. The matters to assess are: which parties were to blame for the incident, and to what extent? in what proportion should damages be allocated, having regard to the comparative responsibilities of those at fault?...

Care homes, construction defects and commercial loss—guidance from the Technology and Construction Court (Toppan & Abbey v Simply) (1) Toppan Holdings Ltd, (2) Abbey Healthcare (Mill Hill) Limited v August 2008 LLP (formerly Simply Construct (UK) LLP) [2025] EWHC 1691 (TCC) What are the practical implications of this case? This decision will be of interest to the construction industry in a number of key respects: Contractors and designers will be expected to meet rigorous fire safety compliance standards The TCC has reaffirmed the established position that defects will be treated seriously, even when latent and uncovered only after practical completion. As emphasised in His Honour Judge Bowdery KC’s judgment, the court will take a dim view of parties who appear to ‘underestimate’ or ‘under‑appreciate’ the consequences of fire safety defects. The judge recorded on several occasions that the ‘appalling’ defects posed ‘a real risk to the health and safety of the elderly residents’, and that the presence of ‘potentially life‑threatening defects’ must...

Introduction to risk under the FIDIC Red, Yellow and Silver Books The bigger and more intricate a construction scheme becomes, the higher the risks borne by both sides and the greater the chance that delivery slips on cost, schedule or the required quality or performance thresholds. FIDIC contracts are widely viewed as balanced, equitable standard forms for building works and aim to allocate in advance the risks that arise on such undertakings. The guiding principle of these forms is that each risk should sit with the party best able to control or manage it. Concerns were raised about certain risk concepts and definitions in the 1999 editions, which FIDIC attempted to remedy in the 2017 updates; nevertheless, the overall shift in risk sharing was not particularly marked. FIDIC’s general position endures: the party most suitably placed to handle a given risk should bear it. The chosen FIDIC book influences the baseline allocation of risk: the Red Book (construction contract) places a substantial...

Practical completion signals the close of a project’s construction phase, the point at which the works are sufficiently ‘finished’ for the employer to take possession and/or put them to use. It commonly triggers the commencement of the defects liability period or maintenance period. As set out below, this milestone carries weight, bringing notable commercial, contractual, financial and practical consequences for both the employer and the contractor. Determining whether a scheme has actually reached practical completion often provokes contention, becoming a regular flashpoint for disagreements and disputes across the construction industry. In some contracts, practical completion is described as ‘substantial completion’ or simply ‘completion’. What does 'practical completion' mean? Many of the difficulties that arise on construction projects in relation to practical completion stem from uncertainty over what the term really entails. The phrase is frequently included in building contracts with minimal, if any, definition, leaving parties unclear about the precise state the works must attain for them to be certified as practically complete...

Limitation Act 1980 and Latent Damage Act 1986 The Limitation Act 1980 (LA 1980), as amended by the Latent Damage Act 1986 (LDA 1986), sets the time limits for starting different categories of legal action. If proceedings are issued after the relevant period has run, a defendant can contend that the claimant’s remedy is time-barred. For the construction sector, the most pertinent deadlines concern contractual and tortious (negligence) claims, though the LA 1980 also fixes periods for personal injury, defective products and defamation. There are, moreover, particular limitation rules for claims under specific statutes, including the Defective Premises Act 1972, the Building Act 1984 and the Building Safety Act 2022. Limitation is often critical for disputes about defective work, as the cause of action may arise long before any issue is visible. For example, faulty foundations installed by a contractor might later cause wall cracking and subsidence, yet the problem may not manifest for years. In such circumstances, the limitation period may have lapsed before the defect becomes apparent...

We have taken it that, because communal areas are mentioned, the property in question is a block of flats. For the first two years after completion of the initial sale of a new-build property, defects cover is supplied, under National House Building Council (NHBC) Buildmark, by the builder, who is responsible for putting right any faults that arise in the property and that then fall within the scope of the policy...