Defects liability period is a common feature of construction contracts. The defects liability period is the period of time within which the contractor is contractually obliged to return to the construction site to repair defects which have appeared in the contractor’s works.
In addition, a certificate of practical completion is usually issued by the architect upon completion of the building project to certify that the works have been completed in accordance with the contract. This marks the beginning of defects liability period. The actual nature of the defects liability period is a period stated in the construction contract document agreement. During this period, the occurrence of defects is at the contractor’s own liability and the contractor shall be called upon to return to site to rectify the defects as necessary.
The reliance of clients on defects liability period is becoming worrisome in Nigeria building industry. The defects liability period practice in Nigeria compared to other developing countries is a major issue to contend with. In construction projects delivery, construction defects are inevitable and are usually contentious between the contractor or sub-contractors and employer. Most of the defects are due to shoddy jobs and sub- standard materials used during the construction activities. After the expiration of defects liability period if defects appear, employer’s remedy in most cases is limited to pursuing a legal claim in damages. However, disregard to civil laws which is common in Nigeria permeates the building industry. This high level of apparent lawlessness finds a fertile ground in non-adherence to the building codes and hasty construction. Defects in building occur during construction, during defects liability period and post defects liability period. Most of the defects verified in recent years occur during construction stage.
The unacceptable qualities of a project which can be identified and remedied are the construction defects stage. In construction contracts it is common to require the contractor to warrant that the works upon completion are free from defects and to make good defects which occur during the defects liability period. Practical mechanism provision to the employer for the repair or making good of defects which may not be obvious before completion, without restoring to resolution is the defects liability period. After the issuance of final certificate, the liability of the building is passed onto the employer and defects in building components may occur shortly after the defects liability period.
In 2006, the council for the Regulation of Engineering in Nigeria (COREN) recommended the persecution of a pharmacist who supervised a collapsed building in Port Harcourt in 2005 in flagrant disregard for the laws that guide the building industry in Nigeria.
Common types of construction defects include: faulty electrical wiring or lighting; structural defects resulting in cracks or collapse; inadequate or faulty ventilation; heating; suppression systems/ inadequate fire protection and inadequate heating or cooling systems; inadequate or faulty drainage systems; defective or faulty plumbing and inadequate sound proofing or insulation. Building works which fall short of complying with the requirements of contract, specifications or contract drawings, together with conditions of its quality and any implied terms, durability, workmanship, design or performance and aesthetic can be defined as defective building works.
Defects in building works are premature failures resulting from errors of workmanship, design, the use of faulty materials or maintenance.
Hence, most projects are confronted with defective work and possibility of defects, which generally occur in structures that cannot perform their originally intended purposes. From the legal aspect, building defect is defined as an element constructed which is not in accordance with the contract, or as some action having consequences not authorized by the contract. Also, when the standard, materials as specified in the contract is deficient and quality of workmanship is inadequate, the building works is considered as defective.
Defects can be viewed and classified into two main categories which are latent and patent defects:
Latent defects are faults and defects caused by failures in design, workmanship or materials that may not become apparent or readily detectable (even with the exercise of reasonable care) until many years after completion of a building project, long after the end of the defects liability period. This is as opposed to Patent defects which are apparent.
Hence, Patent defects are the deficiency in a structure that is apparent to reasonable inspection or the defects which can be noticed upon examination. Patent defects are quite obvious to the eyes and the defects are capable of being assessed, inspected and if necessary; rectified.
Thus, as stated by its nature, a latent defect cannot be discovered until it becomes patent and yet it may not be discovered immediately since there may be no apparent signs to indicate the presence of the defect in its early stages.
As emphatic as this article has been on the issue of building defects liability period, suffice to say that it is hardly put into full perspective/cognizance nor entirely implemented in Nigeria, though not alien.