Q&As

Is it possible to issue a certificate of making good defects except in respect of a key defect which remains outstanding? Will the building contract need to be varied?

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Published on LexisPSL on 02/11/2018

The following Construction Q&A provides comprehensive and up to date legal information covering:

  • Is it possible to issue a certificate of making good defects except in respect of a key defect which remains outstanding? Will the building contract need to be varied?

Is it possible to issue a certificate of making good defects except in respect of a key defect which remains outstanding? Will the building contract need to be varied?

While we are aware of the occasional practice of a significant defect being carved out of a practical completion certificate (sometimes referred to as a ‘qualified practical completion certificate’), on the agreement that the defect will be rectified within a specified timeframe following practical completion, we have never come across this approach in relation to a certificate of making good defects. Having said that, we are not aware of any principle or case law to the effect that a defect could not be carved out of a certificate of making good defects in this way.

The parties should take note of the consequences that issuing a certificate of making good defects may have under the contract, even if it is qualified. For example, under the JCT Standard Building Contract 2016 the issuing of the certificate of making good defects by the Architect or Contract Administrator triggers the release of the second half of the retention (clause 4.19.2) and may start the timetable for the

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