8 Things About Rectification Works You May Not Have Known

No matter the experience or skill of the contractor, many employers will eventually ask them to return to carry out rectification works. This involves correcting errors made during construction and ensuring that the project is completed to a high standard.

Rectification works, however, is a convoluted subject. And there are all kinds of things that contractors don’t know about it. In this post, we take a look at some aspects of rectification work that you might not be aware of.

1. You Don’t Have To Do It Unless Stated In The Contract

Yes, that’s right – you don’t actually have to carry out rectification work unless there is an explicit provision in the original contract.

To be clear, most contracts include a rectification clause. It says something like “the contractor will agree to return to complete works on the project if they do not fulfill the requirements of the employer.” But some contracts don’t contain clauses like these. So whether you return to correct defects or not is entirely up to you. For the sake of brand image, most firms do go back to carry out rectification work, but they don’t have to.

2. Most Contracts Set Out A Limited Defects Liability Period

A defects liability period – sometimes shortened DLP – is a term in a construction contract that sets out how long the employer has to identify defects following completion of the project.

Suppose, for instance, that an employer discovered defects in workmanship four weeks after the official end of the project. Quite reasonably, they could ask the contractor to return under the DLP.

Now consider a situation in which the employer discovers problems five years later. Is it still okay for them to ask the contractor to return to solve the issue? Usually not.

3. Defects Are A Breach Of Contract And Part Of Common Law Damages

Under common law, defects are a breach of contract and, therefore, give rise to damages. Whether DLP can time-limit these damages is contested in the courts and not clear from case studies. In some cases, courts have upheld the DLP while in others, they have told contractors to return to the site to carry out remedial work.

Damage claims usually need to be brought without the statutory limitation period. However, this varies from state to state. Some such as Queensland and Western Australia have extremely long 10-year periods. But there is ongoing debate as to whether it applies to both negligent actions, breach of contract or both.

4. Employers Can Include Demolition And Rebuilding Work As Part Of Rectification Work

According to the law, damages under defective work amount to what was promised under the contract. Usually, rectification requires making small changes. However, it can sometimes necessitate beginning the project over again from scratch. In this case, the contractor must foot the bill for the cost of demolition and rebuilding where necessary. They must also absorb any incidental costs, such as lost rent and structural engineer fees.

5. In Some Cases, Employers Cannot Request A Full Rebuild

Having said this, the cost of a full rebuild is often prohibitively expensive. Therefore, the law permits certain exceptions where contractors may not have to start from scratch. In many cases, if the cost of remedying the defect is unreasonable, the courts may provide the employer (also called the principal) with alternative means of recovering damages. These could include paying a sum of money equivalent to the lost value of the building or compensation for any lost convenience or enjoyment of the premises.

6. Most Completed Projects Are Not Defect-Free

The concept of a defect-free construction project is a myth. Practically speaking, most constructions have problems. This reality means that most rectification work continues after the official completion of the project.

Because of this, many contracts rely on the idea of “practical completion” – a tool that prevents projects from running on and on. Usually, practical completion occurs when the contractor fulfills minimum requirements set out by the employer. Contracts may also specify a date for practical completion which can move around as circumstances dictate. If there are defects, it is then up to the contractor’s and employer’s discretion as to what to do about them.

7. Employers Can Refuse To Allow Contractors To Return To The Site

In most cases, employers will allow contractors to return to the site to carry out rectification works. However, on some occasions, they may refuse to have them back.

On the face of it, this type of action seems a little strange. But the employer may not want the contractor to return on account of their shoddy work. Sometimes, a single contractor can put the rest of the project in jeopardy and the risk of allowing them to return just isn’t worth it.

Whether an employer can legally prevent a contractor from returning to the site depends on the quality of their original work. If they leave serious defects after their last attempt, that can act as evidence that they do not have the necessary skill to remedy the problems that you have. However, if the overall standard of the contractor’s original work was high, employers should not bar them from returning or use another contractor to complete it.

8. Liability For Defects Survive The Issuing Of The Final Certificate

Many contractors believe that the issuing of the Final Certificate absolves them of responsibility for any project defects. But that’s not true. Defect liability can survive both the Final Certificate and the rectification period. Furthermore, employers can claim for losses from defects, even if you rectify them. So you might have to pay for damages in the form of reduced payments from the employer.

Final Words

So, as you can see, the topic of rectification works can be a something of a nightmare. Yes – most contractors correct errors before the practical completion of the project. But if they don’t, the employer could hold them liable. And that could mean that you receive an extra bill in the post.

Fortunately, most cases of defect rectification do not go through the courts. But it always pays for contractors to have legal professionals ready to fight their case.

“SLN Consulting Pty Ltd carry out numerous structural solutions for our swimming pool customers Australia-wide. Their technical knowledge and practical experience exceeded our design requirements time and time again. I would highly recommend using SLN Consulting to everyone.”

(Nigel Butcher, Shipping Container Pools)