CPD: Patent and latent defects

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In this CPD, published in this month’s Construction Management on behalf of the CIOB, Anthony Walker reviews the differences between patent and latent defects in buildings and how they impact contractors and clients. Click here to view original article.

The above quote encapsulates the concept of knowledge and uncertainty, particularly relevant in the complex world of construction defects. Despite meticulous planning and careful execution, defects can still occur, impacting a building’s quality, safety and longevity.

It’s important to distinguish between two types of defects: patent and latent.Patent defects are readily observable ‘known’ flaws, visible to the naked eye or detectable through a routine inspection. A patent defect wouldn’t typically require any specialised equipment to be identified. Some examples include cracks in walls or floors, improperly installed windows or doors, water leaks, uneven floors or ceilings and missing or damaged materials.

In contrast, latent defects are hidden ‘unknown’ flaws – and potentially more complex and problematic. These are not immediately apparent and may take months or even years to become noticeable, sometimes manifesting only after significant damage.

They often require a more in-depth inspection, more specialised knowledge and sometimes testing to uncover. Some examples include insufficient foundations, under-strength materials, defective waterproofing, faulty wiring, leaking pipes and improperly installed roofing.

Both types of defects pose problems, but in different ways:

For clients: Patent defects can be frustrating and inconvenient, requiring repairs that eat into budgets and disrupt planned schedules, but they are identifiable and can be addressed relatively easily.Latent defects, on the other hand, present a greater challenge, often needing expensive repairs due to structural instability or safety hazards, and may cause a significant decrease in the property’s value.

The concept of a ‘latent defects liability period’ is crucial for understanding contractors’ responsibilities. This period, as set out in the Latent Damage Act 1986, is typically six years from the completion of a construction project, but it can be extended to 12 years if the contract was executed as a deed (a formal legal document).

The act also provides an additional three years in certain circumstances to claim for latent damage. Section 14B also imposes an overall long-stop date of 15 years from the breach of duty resulting in the damage.

Building owners or managers are recommended to commission a latent defect survey before the liability period expires.

These surveys, typically carried out by a building surveyor, provide a comprehensive understanding of existing defects, their causes, necessary repairs and estimated costs. This information can be invaluable for future financial and legal discussions.

A typical latent defect survey involves:

Additional advice from M&E surveyors, structural engineers or other specialists may be required for some surveys.

Contractors are generally liable for both patent and latent defects within the defined time limitations.

If patent defects are not corrected, clients can seek compensation or engage other contractors for repairs at the original contractor’s expense.

For latent defects, proving contractor liability can be more challenging once the limitation period has expired. Clients must demonstrate that the defects were pre-existing to hold contractors accountable, which can require extensive evidence and legal support.

Understanding patent and latent defects is beneficial for all stakeholders in construction projects. By recognising the risks and taking proactive steps like latent defect surveys, potential legal and financial issues can be mitigated, while ensuring the safety and satisfaction of building occupants.

High-quality standards from contractors, and property inspection and maintenance from clients are key to minimising defects and creating reliable buildings for everyone.

Several key pieces of legislation and guidance pertain to defects in the UK, including:

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By Anthony Walker
FRICS MIFireE, Director at Sircle