BUILDING DEFECTS: a legal perspective Denis O’Driscoll & Associates Solicitors www.doda.ie Denis O' Driscoll & Associates Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors Defining a Defect “A shortcoming, imperfection, or lack” Oxford English Dictionary “A defect is a physical, aesthetic, or functional attribute of a product or service that exhibits that the product or service failed to meet one of the desired specification”.  Wikipedia Denis O' Driscoll & Associates, Solicitors

PWC definition of Defect “ Non-compliance of the Works or a works item with the Contract [including a failed test and, after Substantial Completion, work that has not been completed” Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors Repudiatory Breach ? “…the quality of work was deteriorating and the number of defects multiplying, many of which [the architect] had tried unsuccessfully to have put right…the contractors had neither the ability, competence or the will this time to complete the work in the manner required by the contract”. Sutcliffe v Chippendale & Edmundson [1971] Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

RIAI Conditions of Contract Cl 2: Architect’s power to instruct making good defects Cl 9: Power to open up works Cl 31: Practical Completion…any defects then patent are of a trivial nature only……..DLP Cl 35: Effect of the Final Certificate Denis O' Driscoll & Associates, Solicitors

Clause 35(c) Interim Cert “The amount stated as due on an interim certificate shall be the value of work duly executed” Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors PWC Clauses 8,6 & 7 Standards of Workmanship & Materials Quality Assurance, tests and Inspections Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors Negligence The Tort of Negligence is a legal wrong that is suffered by someone at the hands of another who fails to take proper care to avoid what a reasonable person would regard as a foreseeable risk Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors Scenario #1 A homeowner engages an architect to design and oversee the construction of a house. He engages a builder to construct the house. 2 years after taking up occupancy, cracks appear on the wall. €100,000 to rectify. What to do? Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors Scenario #1 What if the Contractor had gone into Liquidation, can he sue the Architect for the full €100,000? Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors Scenario #2 What if the Homeowner had flipped the house on completion? Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors Scenario #2 Can new owner sue in Contract? Can he sue in Tort? Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors PRIMARY CONTRACTS Funder Purchaser -Tenant DesignTeam Employer Contractor Sub-Contractor Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors COLLATERAL CONTRACTS Funder Purchaser -Tenant DesignTeam Employer Contractor Sub-Contractor Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors DEFENCES Limitation Periods Final Certificate Limitation of liability clauses Net Contribution Clauses Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Effect of the Final Certificate Clause 35(h)(j) the said Final Certificate shall be conclusive in any proceedings arising out of this Contract... That the Works have been properly carried out and completed in accordance with the terms of this Contract and that any necessary effect has been given to all terms of this Contract which require an adjustment to be made to the Contract Sum, except and Insofar as any sum mentioned in the said Final Certificate Is erroneous by reason of: (i) fraud, dishonesty of fraudulent concealment relating to the Works or any part thereof...(ii) any defect... In the in the Works or any part thereof which reasonable inspection or examination at any reasonable time during the carrying out of the Works before the issue of the said Final Certificate would not have disclosed. Denis O' Driscoll & Associates, Solicitors

NET CONTRIBUTION CLAUSE Collateral Agreement [Orange. 1999 Ed] “3. Limitations The Contractor shall be only liable under this Agreement for the reasonable costs of repairing any defect, or omission or other fault in the construction of the Works... It is agreed that all other damages, costs and losses (including consequential loss and/or loss of profit) are expressly excluded. The Contractor's liability... Is limited to the proportion of the cost of making good damage... which it would be just and equitable to require the Contractor to pay having regard to the extent of the Contractor's responsibility for same... The Contractor shall be entitled in any action or proceedings... to rely on any limitation in the Main Contract...” Denis O' Driscoll & Associates, Solicitors

Limitation of Liability Clauses RIAI AGREEMENT BETWEEN CLIENT AND ARCHITECT [ Ed 1: 2014]  “2. Architect’s duties The architect will exercise reasonable skill and care on the project in accordance with the normal standards of the architect's profession... 5. Consultants, Subcontractors and Suppliers  Specialist consultants, sub- contractors or suppliers may be appointed on the architect's recommendation... where such persons design part of the work, the client shall separately engage and pay those people and shall hold them solely responsible for the performance of their design.   6. Inspection of building work ... The architect was visited the site at intervals s/he considers appropriate to the stage of construction to inspect the progress and quality of the work and to determine that the work is being carried out generally in accordance with the contract documents.... Frequent or constant inspection does not form part of the standard services... It is the contractor's responsibility to supervise the building work. 9. Architect's liability The architect's liability shall extend.... to a term of six years beginning on... The architect's issue of the Certificate of Practical Completion... and… To the cost of making good any construction defects which are established has been caused by the architect's negligence or breach of contract, but not to the cost of making good any loss consequential on such defects." Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors Remedies "If a builder builds a house for a man and does not make its construction firm and the house which he has built collapses and causes the death of the owner of the house that builder shall be put to death...   …If the son of the owner dies, the son of the builder shall be killed."  Code of Hammurabi, King of Babylon, 1750 BC Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors Remedies Cost of Reinstatement Diminution in Value Both? “Residual Blight” Consequential Losses Loss of Amenity, distress anxiety & inconvenience Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors

Denis O' Driscoll & Associates, Solicitors