When a building contract comes to an end, there are often snags or remedial works that are already known about or become known about shortly afterwards.  A number of questions can arise, such as: does the contractor have to return to site?  Can the employer force the contractor to return to site?  What costs can be recovered if the contractor does not carry out the remedial works?

In most circumstances the contractor is contacted, informed of the defects and attends site to carry out the remedial works.  When the contractor does this, it is at no cost to the employer.

However, sometimes the contractor will refuse to return to site.  If this happens the employer is entitled to arrange for an alternative contractor to carry out the remedial works and to charge the original contractor for the costs incurred.  Those costs have to be reasonable and the works carried out should be to the same standard as the contract for the original works.  The employer will also be entitled to recover any other costs it incurs as a result of having to carry out those remedial works.

A more tricky situation occurs if the employer does not want the contractor to return to site in order to carry out the remedial works.  An employer can only do this if it has good reason, otherwise it will not have mitigated its loss and may only be able to recover what the cost of carrying out the remedial works would have been to the original contractor.  If those works were carried out by a subcontractor, the cost to the original contractor might, in fact, be zero as the subcontractor may perform remedial works at no cost.

However, there are a number of good reasons why an employer could be entitled to refuse to allow the original contractor to return; these include:

• the defects are so large that no reasonable employer would allow the contractor to return
• the contractor has behaved fraudulently
• the contractor has made it clear that it is unwilling to rectify any defects
• the contractor has attempted to remedy the defects previously and has failed, therefore it should not be given a further chance
• the contractor is offering to undertake different remedial works to the ones required
• the contractor has delayed in carrying out the remedial works

These reasons, depending upon the specific circumstances, could all provide grounds for the employer to reasonably refuse to give the contractor the chance to carry out remedial works.  In most circumstances the employer would then be entitled to recover the costs of doing the remedial work from the contractor.  The employer would also be entitled to claim for any extra costs incurred as a result. 

Both employers and contractors should therefore be very careful when it comes to carrying out remedial works.  The contractor who does not carry them out may face a bill that is considerably higher than the works themselves would have cost.  Conversely, if an employer refuses unreasonably to allow a contractor to carry out remedial works, then it may incur costs with another contractor that it is unable to recover.  Such an expensive mistake can be avoided by obtaining early legal advice from your solicitor.

Claire Wiles
01268 824930
claire.wiles@birkettlong.co.uk