Our client started occupying and using a new work space in July 2021.
They have still not issued us with a completion certificate due to a couple of very minor defects that we are due to rectify soon as part of a planned visit for some additional works
Can they do this and how does it effect the defects liability period which in our view will expire in July?
You do not specify which type of contract you refer to (I will assume NEC3 ECC), but generally speaking āminorā defects should not prevent your client from certifying Completion. They would have to be defects that prevent your client from using the works.
The defects liability period expires on the defects date (italics) which should be set out in CD Part 1 as x weeks after Completion of the whole of the works. You therefore need to ensure that the (overdue) Completion Certificate states that the whole of the works were completed on the correct date; if your client certifies that Completion was achieved on a later date, your defects date will be changed also.
1 Like
Hi GY, I was drafting my response when Peter gave his but Iāll post it anyway, hopefully it will help. Completion is a defined term under clause 11.2(2), the Contractor must have done all the work stated in the Scope (Works Info NEC3) to be done by the Completion Date and corrected Defects which would prevent the Client from using the works or Others doing their work. If the work to be done by the Comp Date is not stated in the Scope, Completion is when the Contractor has done all the work necessary for the Client to use the works and Others to do their work. So as you can see Completion can be achieved despite their being uncorrected Defects. Any Defect existing at Completion must be corrected within the defect correction period which begins at Completion for Defects notified before Completion - see clause 44.2 [NEC3 43.2]. Clause 35 refers to ātake overā of the works by the Client and take over is basically when the Client starts to use parts of the works. Clause 35.3 the Project Manager certifies take over within one week of it happening.
So if the Defects are minor then it sounds as if the āClientā [Project Manager] is wrong to have not certified Completion but if it had done then you would have been obliged to correct the Defects within whatever the defect correction period is in contract following Completion - see Contract Data part one section 4.
As Peter points out the defects date runs from Completion of the whole of the works, also see Contract Data part one section 4. If as you describe you did achieve Completion in July 21 then the PM is in breach of their obligations to certify both Completion and ātake overā.
Hope that helps, happy to discuss.
2 Likes