Construction defects are inevitable in many building projects, whether caused by poor building materials, subpar workmanship, or design flaws. Such defects can manifest in various ways and can be broadly classified into two categories: latent defects and patent defects. Both types of defects can pose significant challenges to property owners, contractors, and builders, but understanding their characteristics and how they are managed can help ensure better outcomes for all parties involved.
In this article, we’ll delve into the differences between latent and patent defects, explore how each is handled, and provide advice on how to protect against or deal with such issues during and after construction.
Patent Defects in Construction
Patent defects are visible and easily discovered during regular inspections. These defects are apparent to the naked eye and can be identified without specialized tools or testing. Examples of patent defects include:
- Faulty Pipes: Leaks, burst pipes, or improper installation.
- Water Stains on Walls: Indicating potential leaks or dampness issues.
- Cracks in Walls: Indicating structural stress or material defects.
Because patent defects are easily observable, they are typically the focus of immediate correction during the construction process. One critical document in managing patent defects is the Practical Completion Certificate. This certificate is issued when the building is completed and ready for possession and use by the client. However, before this certificate is issued, all visible defects must be rectified. Once the Practical Completion Certificate is issued, a Defects Liability Period (DLP) begins.
Defects Liability Period (DLP)
The DLP is a specified period after practical completion during which the client can report any defects found within the structure. During this time, the contractor is obligated to rectify any patent defects that arise. Once the defects are fixed, a Certificate of Making Good Defects (CMGD), also called the Certificate of Making Good, is issued. This certificate signifies that all identified defects have been addressed.
If further issues arise after the CMGD is issued, the contractor is still required to resolve these defects before the final completion certificate is granted. This final certificate confirms that the entire contract has been completed to the satisfaction of both parties, with all defects addressed and final accounts settled.
How to Deal with Patent Defects
Patent defects are often identified during regular inspections and snagging processes, which are part of the standard construction procedure. The contractor typically compiles a snag list, which outlines all defects or unfinished work that needs to be corrected. The contractor is required to address these items within a reasonable timeframe. After the corrections are made, the client can confirm the completion and closure of the issue, ensuring that all aspects of the construction are in working order before finalizing the project.
Latent Defects in Construction
In contrast to patent defects, latent defects are hidden issues that are not immediately visible and may not be discovered until years after the completion of the building. These defects result from deficiencies in the design, materials, or workmanship that are not easily detectable without specialized inspection or significant wear and tear. Some common examples of latent defects include:
- Defective Basement Foundations: Poorly designed or constructed foundations that might cause subsidence or flooding over time.
- Movement or Damage of Walls Due to Inadequate Wall Ties: Over time, poorly reinforced walls can shift or crack.
- Weak Concrete Structures: Concrete that was poorly mixed or poured can begin to deteriorate, potentially compromising the integrity of the entire building.
- Inadequate Foundation: A poorly constructed foundation can lead to cracks, sinking, or shifting in the structure.
Unlike patent defects, latent defects often remain hidden and undetected during the construction process and the defects liability period. Since they are not immediately visible, latent defects present unique challenges in both detection and resolution. Additionally, once the defects liability period ends, contractors are no longer contractually obligated to address these issues.
Challenges of Latent Defects
Latent defects can go unnoticed for years, sometimes only becoming apparent when the building starts to experience structural or functional problems. The primary challenge with latent defects is their concealed nature, which makes them difficult to detect during the construction phase or within the defects liability period.
As latent defects often only become visible long after the defects liability period has ended, there is no contractual obligation requiring contractors to fix them after that time. This leaves property owners in a challenging situation, especially if the building experiences major issues years down the line. In such cases, the building owner may need to pursue legal action, such as filing a lawsuit for breach of contract or negligence.
Dealing with Latent Defects
While latent defects cannot always be rectified by contractors once the defects liability period has ended, there are several steps that building owners can take to address and manage these issues.
Legal Actions for Latent Defects
If a latent defect is discovered after the defects liability period has expired, the building owner has the option to pursue legal remedies. These may include breach of contract or negligence claims against the contractor, designer, or manufacturer who may have contributed to the defect. Legal recourse can help the owner recover costs for repairs or compensation for damages caused by latent defects.
Dilapidation Reports
A dilapidation report is an essential tool for property owners, especially when purchasing or selling a property. This report involves an expert inspection of the property to identify potential latent defects or predict the likelihood of future issues. Having such a report can help owners or buyers anticipate and manage latent defects proactively. It also protects the property owner by documenting existing conditions before disputes arise, thus reducing the likelihood of the contractor shifting the blame to the owner.
Insurance Solutions for Latent Defects
There are also insurance products available to mitigate the risks associated with latent defects. Two main types of insurance include:
- Building Insurance: This policy can cover structural damage to roofs, walls, and foundations, including some latent defects that emerge after construction.
- Latent Defect Insurance: Specifically designed to cover defects in design, materials, or workmanship that may only become apparent after the defects liability period.
Having these insurance policies in place can provide significant peace of mind for property owners, as they ensure financial protection in case latent defects become apparent after construction is completed.
Property Transactions and Latent Defects
Latent defects are an important consideration when buying or selling property. Sellers are generally not obligated to disclose latent defects, unless they are aware of them and attempting to conceal them, in which case it constitutes fraudulent concealment. For property buyers, a diligent property inspection and obtaining a dilapidation report can uncover hidden issues that might not be apparent at first glance.
In the case of latent defect disputes, it’s recommended that all parties involved—whether buyers, sellers, property inspectors, or real estate agents—seek legal advice. A qualified lawyer can assist in navigating these disputes and ensuring that the interests of all parties are fairly represented.
Conclusion
Construction defects, whether latent or patent, can have a significant impact on the integrity, safety, and value of a property. Patent defects, being visible and easily detected, are typically managed during regular inspections and are often resolved before the final completion of a project. On the other hand, latent defects can remain hidden for years, causing potentially severe issues long after the construction is completed. These defects require proactive measures such as dilapidation reports, insurance, and, in some cases, legal action to address.
For both contractors and property owners, understanding the difference between patent and latent defects—and knowing how to handle them—is essential to ensuring the long-term success and safety of a construction project.