Guide letter 35: Confirmation to client - defects and incomplete work

1. When and how?

1.1 At practical completion, as well as defects there may be items that have not been completed, which are often incorrectly referred to as defects. They are in fact incomplete work for which the contractor should not be paid. Defects on the other hand, refer to work that has been completed and paid for, but is defective.

1.2 It is your responsibility to take reasonable steps to establish the full extent of defects and incomplete work (including services designed by specialist consultants) which arise after practical completion and throughout the defects liability period. Some defects will be claimed by the client, but you must assess if they really are defects, or user damage. Once you have made your assessment you must detail them to your client and the contractor.

1.3 It is prudent for you to obtain your client's written agreement to your advice. The client may wish to negotiate a credit from the contractor in lieu of rectification of some of the defects.

1.4 The contractor has the right to rectify defects at an early date to minimise liability which may arise out of a defect.

1.5 Prior to writing this letter you should inspect the works with the contractor.

1.6 You may issue several lists of defects throughout the defects liability period to both contractor and your client, however the contractor must only be given access at reasonable intervals to prevent undue interference with the end user's activities.

1.7 Urgent matters should be dealt with promptly.

2. Content

Confirm with your client:

• when the defects liability period commences and expires (refer also Guide letter 33 and Guide letter 34)
• the list of incomplete work
• the list of all defects identified at the time of practical completion and as they arise which remain unrectified (it is advised that the architect has detailed photographic records).

Advise:

• any particular comments which you may have on specific defects
• when you need your client's reply – the last notification to the contractor should be no later than one week before the end of the defects liability period (confirm with your contract) to allow the contractor to complete the rectification of defective work prior to the expiration of the defects liability period.

Request:

• your client's advice of any defect which has come to their attention but is not included in the current list;
• your client's agreement to the list provided by you; and
• any specific requirements and restrictions by your client regarding the contractor's access to the site to rectify defects.

3. Action

3.1 You are strongly urged to issue this letter to ensure that your client has the opportunity to add to the defects list and to reach agreement. Generally no new defects can be added to this list after the end of the defects liability period.

4. What happens next?

4.1 Follow up this letter with a letter to the contractor giving formal notice of the defects needing rectification and requesting advice of the contractor's program to do so (refer to Guide letter 36). At the end of the defects liability period you will reinspect the works and report. This process will be repeated until either all defects are rectified or satisfactory negotiations have been concluded.

5. Are there other possibilities?

5.1 No.

6. What can happen if you don't?

6.1 If you fail to obtain your client's advice about any defect which has come to their attention during the defects liability period and fail to instruct its rectification, your client may lose the opportunity to have it rectified.

7. Copies

7.1 Architect's file

7.2 Contractor

7.3 Relevant specialist consultants