Defective building work, and for how long
Construction work runs on two clocks that are easily confused: the period within which the defect must appear, and the period to sue once it has. Both must be satisfied before a claim can be brought.
The first clock: one year or five
The first paragraph of section 600 of the Civil and Commercial Code provides that unless the contract says otherwise, a contractor is liable only for defects appearing within one year of delivery, or within five years where the work is a structure on land other than a timber building. The difference between one year and five turns on the nature of the work, not the value of the contract.
The second clock: a year from appearance
Section 601 is short and absolute: no action may be brought against the contractor after one year from the day the defect appeared. A defect showing up in year four of a structure is therefore still within the liability set by section 600, but must be sued on within a year of appearing, rather than saved up until the five years are complete.
The exception for concealment
The second paragraph of section 600 provides that the limitation does not apply where the contractor concealed the defect. That matters greatly in work where the fault lies out of sight, such as structural work later plastered over or services buried in walls, because proving concealment takes the time limit in the first paragraph out of play.
The contract may say otherwise
Section 600 opens with the words unless the contract says otherwise, which means the parties may agree different terms. Many construction contracts therefore carry their own defects-liability period. Reading the contract matters more than remembering the statutory figures, and it is why reviewing a draft before signature is worth far more than arguing afterwards.
The evidence that decides it
What has to be kept is a clear delivery date and the date the defect first appeared, since those are the starting points of the two different clocks. Dated photographs, a letter to the contractor with proof of sending, and an engineer's or inspector's report carry far more weight than a later account, particularly when the contractor argues the damage came from use.
PREPARE
What to bring
- The contract with the drawings, specifications and every attachment
- Evidence of the delivery date and of acceptance
- Dated photographs of the defect and the date it was first seen
- Letters to the contractor and any reply
- Any engineer's or independent inspector's report
QUESTIONS
Questions this raises
Cracks appeared in year three. Can I still claim?
Section 600 makes a contractor liable for defects appearing within five years where the work is a structure on land other than a timber building, so a defect in year three is within the frame. Section 601 then bars suit a year after the defect appeared, so the count runs from the day the cracks were first seen, not from delivery.
The contractor says the contractual warranty has expired.
Section 600 allows the contract to provide otherwise, so its terms have effect, but what defects the clause actually covers still has to be read. The second paragraph also disapplies the limitation where the contractor concealed the defect, so damage below the surface deserves close examination before that answer is accepted.
LAW
The legislation
- Civil and Commercial Code, sections 600 and 601
ENQUIRIES
