Construction defects are caused as a result of various deficiencies such as poor building materials and workmanship or faulty design. They can be categorized into patent or latent defects.
Patent (visible) defects are defects that can be discovered by reasonable inspection, while latent (hidden) defects are concealed defects or problems within the structure that are not easily discovered.
Latent defects may stay undetected for years, before finally making themselves visible and becoming patent defects.
This article discusses the features and differences between latent and patent defects in construction projects.
Patent Defects in Construction
Patent defects are defects that are completely visible to the naked eye—for example, faulty pipes, water stains on the walls, wall cracks, etc.
A practical completion certificate is a contractual document that allows the client to take possession of and use a building. All the defects apparent before the practical completion of the project should be rectified before issuing the certificate of practical completion.
After issuing the practical completion certificate, the defects liability period begins. During the defects liability or rectification period, the client can report any defects to the contractor. Once they are rectified, a certificate of making good defects (CMGD) (now called the certificate of making good) is issued to the client.
If defects occur even after certifying CMGD, they must be cleared completely before issuing the contractor the final completion certificate. A final certificate is a certification by the contract administrator implying that a construction contract has been fully completed.
The value of the final certificate is based on the final accounts which means all the patent defects are remedied, any adjustments to the contract sum are agreed and all claims are settled.
How to Deal with Patent Defects?
Patent defects are frequently dealt with during the regular inspection and become a part of snagging as they are surface defects. The snag list is submitted and corrected by the contractor within a reasonable timeframe.
Latent Defects in Construction
Some faults and defects in construction projects caused by failures in design, workmanship, or materials may not become detectable until many years after completion of the project, or long after the defects liability period. These defects are called as latent defects.
Defective basement, movement or damage of wall due to inadequate wall ties, poor strength concrete issues, error in reinforcing the structure, or building cracks due to inadequate foundation are a few examples of latent defects.
Compared to patent defects, latent defects are complicated to identify and resolve during the construction period or defect liability period. Hence, there is no contractual right that obliges the contractor to rectify it.
How to Deal With Latent Defects in Construction?
The building owner does not have a contractual right to compel the contractor to rectify any latent defect that is observed after the defects liability period. But, as most latent defects are concealed flaws and are mostly discovered after this period, the owner can seek redress in an action for breach of contract or for negligence.
Another solution is to prepare a dilapidation report to capture possible latent defects. An expert can inspect and forecast future possibilities of defects caused due to poor planning or workmanship during the design or construction phase. Without a dilapidation report, the contractor can shift the blame on the owner for a latent defect caused.
Other solutions include:
- Building insurance for structural damage and defects to roofs, walls or foundation.
- Latent defect insurance that covers defects in design, workmanship or materials that becomes apparent after the defect liability period.
Latent defects are a matter of great concern when one is planning to buy a property. A seller has no obligation to disclose existing patent or latent defects in the building, but if attempts to hide any, it is referred to in law as fraudulent concealment.
It is advised that a purchaser, seller, property inspector, or real estate agent/broker involved in a latent defect dispute to obtain legal advice from a qualified lawyer for better settlement of disputes.
FAQs
Patent defects are completely visible to the naked eye—for example, faulty pipes, water stains on the walls, wall cracks, etc.
Some faults and defects in construction projects caused by failures in design, workmanship or materials may not become detectable until many years after completion of the project, or long after the defects liability period. These defects are called as latent defects.
Latent defects can be solved by:
1. Dilapidation report
2. Seek redress in an action for breach of contract or for negligence.
3. Building insurance
4. Latent defect insurance
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