Building something - what documents do I need?

Building something - what documents do I need?

When starting a project, there is a lot to consider. This not only includes labour, materials, finance and designs but also what legal documents are required. Often these are treated as an afterthought and something that can be sorted out later. 

However, this can be a big mistake which may lead to the different people involved in the project not knowing what they are responsible for and what they have to do. Birkett Long will guide you through which documents you may need for your particular project, as well as helping you to complete these to meet your requirements.

Our construction solicitors have particular experience in providing advice on construction contracts and sub-contracts. We have experience in all the major standard forms including Joint Contracts Tribunal (JCT), New Engineering Contracts (NEC), International Federation of Consulting Engineers (FIDIC) and Institute of Civil Engineers (ICE). We also draft bespoke contracts if that is what is needed.

We can provide a full contract review service and advise on the risks arising and the current market position. We can also suggest suitable amendments which can protect your contractual position.

We work with a number of different professionals, including architects, engineers and surveyors on their contractual terms and collateral warranties. We advise on other associated documents required in the building industry such as guarantees, bonds and other finance documents.

We can also advise on public procurement matters throughout the construction industry. This includes assisting with drawing up the documents needed for the process.

Legal documents you may need to consider include:

  • Standard form contracts and amendments
  • Bespoke construction contracts
  • Professional appointments - for architects, surveyors, engineers, etc.
  • Collateral warranties or third party rights agreements - to employers, funders and purchasers
  • Subcontracts
  • Performance bonds and guarantees
  • Public Procurement Documents
  • Environmental issues
  • Sales and purchases of development land, including compulsory purchases
  • Options and conditional contracts
  • Joint ventures and consortium arrangements
  • Infrastructure agreements
  • Private Finance Initiatives

For a no obligation phone call to discuss how we can help your construction business, contact our specialist construction team on 01245 701198.

Peter Allen is a member of the Technology and Construction Solicitors Association (TeCSA) and the Society of Construction Law.


Do I need a building contract?

The answer to this is of course yes. In fact, you will almost certainly have one if building work has started, but the terms may not be clear. You should therefore make sure that any contract is in writing and sets out clearly each party’s obligations, responsibilities and liabilities. As many eventualities as possible should be covered. We can assist in drafting or reviewing your contract to make sure each party knows what they have to do.

How will the amended Construction Act affect me?

The amended act came into force for all “construction” contracts entered into, on or after 1 October 2011. It is therefore quite old. The major changes affected how payment notices work, which made it easier for receiving parties to ensure they obtained payment of their payment applications. It placed a higher obligation on the paying party to provide proper valuations of work at the correct time. We can advise on the procedures necessary to obtain payment.

What if my contractor goes bust?

This can cause lots of difficulties and prove to be very costly. It is therefore important to check the financial position of your contractor before you enter into the contract. You might be able to obtain security for any payment. You should make sure you don’t over pay for work done, and be very careful with advance payments. If the contractor goes bust then the contract can be brought to an end. You would then need to complete the building works and could make a claim in the insolvency for your losses, although it is unlikely that you would receive a payment out. We can advise you on how to make a claim and defend any proceedings from the contractor.

What is the best action for non-payment?

This depends on the circumstances, but you should be able to suspend performance of the work. You can then commence proceedings, usually adjudication, to obtain payment. You would also be able to take steps to terminate the contract. However non-payment does not, in most cases, automatically bring a contract to an end. We can advise on the process to suspend works and represent you in adjudication.

Can an employer sue an insolvent contractor?

You can make a claim in the insolvency proceedings for your losses. However, this may well take a long time and you may not make a recovery if the insolvent contractor does not actually have anything. We can advise you on how to calculate your claim and the process to follow to make it.

Can an insolvent contractor sue the employer and does the employer have to pay any money?

Yes an insolvent contractor can sue the employer. However, if payment has to be made this will depend on whether anything is actually owed. An employer will be able to set off against any sums owed its losses caused by the contractor becoming insolvent.

How do you terminate a building contract?

Construction contracts will include provisions allowing either the employer or the contractor to end the contractor’s employment to complete the works. Terminating a building contract can be complex and it is important that the correct procedures are followed. A contract can be terminated in two ways, either under the express terms of the contract or by repudiation. 

Terminating under the express terms of a contract

Under the express terms of a contract, there would usually be provisions involving a two-phase service of notices. A party would serve a warning notice drawing the default to the other party’s attention. This would be followed by a further termination notice, in the event the default is not remedied. 

Terminating a contract by repudiation

An innocent party could also consider a contract as terminated if one party behaves in such a way to indicate that they no longer intend to accept their obligations under the contract. This is known as repudiation by the party in breach. The innocent party can accept the other party’s breach from preventing any further performance of a contract, and can terminate the contract and claim damages.

We can advise you on the correct procedural requirements to terminate a building contract. 


Construction - Building something - staff reorder

  • Peter Allen
  • David Rayner
  • Keith Songhurst
  • Martin Hopkins
  • Claire Wiles
  • Natalie Whybrow