Early use and partial possession

The following Construction practice note provides comprehensive and up to date legal information covering:

  • Early use and partial possession
  • Taking occupation before practical completion
  • Early use
  • Partial possession
  • Distinguishing between early use and partial possession

Early use and partial possession

Taking occupation before practical completion

The default position in most building contracts is that the contractor is given exclusive possession of the site and the works and this continues until practical completion of the works takes place (see Practice Note: What is practical completion?). At practical completion, exclusive possession of the site/works passes back from the contractor to the employer. This is ordinarily the case unless the contract contains express terms to the contrary (eg terms providing for sectional completion).

However, the nature of construction projects, and the commercial drivers that motivate employers, mean that, on occasions, an employer may decide that it wants to access, use, occupy or even sell a part or parts of the site/works before completion of the whole of the works. One of the most common reasons that the employer may decide to do that is to allow it (or its purchaser/tenant) to commence fit-out works.

If sectional completion is agreed in advance, the building contract should be drafted so that provisions, including those relating to completion, handover, insurance, retention, extension of time and liquidated damages, all deal with completion of the work in sections. For more information, see Practice Note: Sectional completion.

However, it is sometimes after contracts have been signed and work is underway, that the employer decides that it wants to be able to use part

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