The legal landscape surrounding construction defects has changed significantly in recent years. Since the introduction of the Building Safety Act 2022, limitation periods for certain claims under the Defective Premises Act 1972 have been extended from six years to as much as 30 years for historic claims and 15 years for future claims, increasing potential exposure for developers, contractors and construction professionals. These reforms, introduced as part of wider building safety measures, have expanded opportunities for property owners and other interested parties to pursue claims relating to defective residential construction works.
As a result, businesses involved in the design, construction and ownership of buildings face greater scrutiny and an increased risk of claims. For developers, contractors, consultants and property investors, defects can lead to substantial remediation costs, project delays, reputational damage and lengthy disputes. Understanding where responsibility sits, what evidence should be preserved and how recovery options can be protected is therefore increasingly important for organisations operating across the construction sector.
The Growing Role of the Building Safety Regulator
The Building Safety Act 2022 introduced the Building Safety Regulator (BSR) as part of a wider programme of reforms aimed at improving standards across the built environment. The BSR oversees the safety and performance of buildings, regulates higher-risk buildings and is responsible for driving improvements in competence throughout the construction industry.
For developers, contractors and consultants, the BSA/BSR has introduced a more rigorous regulatory environment, particularly in relation to the design, construction and occupation of higher-risk buildings. Enhanced oversight, stricter compliance requirements and increased record-keeping obligations mean that project teams are expected to demonstrate not only that works have been completed correctly, but also that appropriate processes and decision-making have been followed throughout the project lifecycle.
While the BSR is not responsible for determining construction defect claims, its focus on accountability, safety and regulatory compliance has increased scrutiny of construction practices. Where defects are identified, the documentation, approvals and compliance records generated during a project may become important evidence in assessing liability and pursuing recovery actions. As the regulatory framework continues to evolve, organisations involved in construction projects should ensure that compliance and risk management remain central considerations from project inception through to completion.
Why Construction Defect Claims Are Increasing
Construction projects are becoming increasingly complex, involving larger supply chains, specialist contractors and more stringent regulatory requirements.
At the same time, building owners and occupiers are paying closer attention to construction quality and compliance. Issues that may previously have remained undiscovered until much later in a building’s lifecycle are now being identified earlier through inspections, surveys and due diligence exercises.
Businesses are also becoming more willing to investigate whether the costs of remedial works can be recovered from those responsible. In a challenging economic climate, few organisations are prepared to absorb significant repair costs without considering the possibility of pursuing a claim.
The result is a growing number of disputes concerning design defects, workmanship failures, specification errors, fire safety concerns, water ingress, structural movement and other issues that can have a significant impact on a building’s performance and value.
Understanding Responsibility Across the Supply Chain
One of the most challenging aspects of any construction defect claim is establishing where liability sits.
Modern construction projects rarely involve a single party delivering every element of works. Instead, responsibility is often spread across developers, contractors, consultants, engineers, architects, subcontractors and suppliers.
A defect that appears straightforward on the surface may have several contributing causes. For example, a building envelope failure may stem from a design issue, an installation problem, inadequate supervision or a combination of all three.
Determining responsibility requires a careful review of project documentation, contractual obligations, the laws determining liability and the factual circumstances surrounding the works.
Businesses should resist the temptation to assume liability rests solely with the party that delivered the finished product. In many cases, responsibility can extend further down the supply chain, creating opportunities for recovery that might otherwise be overlooked.
Claims Against Contractors, Consultants and Subcontractors
Where defects are identified, potential claims may arise against a range of parties involved in the project.
Contractors may face claims relating to workmanship, failure to follow specifications or inadequate project management. Consultants and design professionals can be exposed where defects arise from errors in design, advice or professional services. Specialist subcontractors may also carry liability for defects affecting particular elements of the works.
The viability of any claim will depend on several factors, including the contractual framework, the nature of the defect, available evidence and the financial position of the parties involved.
Early investigation is therefore critical. Businesses that take prompt action are often in a stronger position to assess liability, preserve evidence and evaluate potential recovery options before positions become entrenched.
Recovering Costs for Remedial Works
Defects frequently require urgent attention, particularly where safety, business continuity or regulatory compliance is affected. However, organisations often focus solely on arranging repairs without considering the implications for a future claim.
Before significant remedial works are undertaken, businesses should consider obtaining appropriate expert evidence to establish the nature and cause of the defects. Failing to do so can make it more difficult to demonstrate liability at a later stage.
Depending on the circumstances, recoverable losses may extend beyond the cost of repairs themselves and could include:
- Professional and expert fees
- Investigation costs
- Temporary mitigation measures
- Project delays
- Business interruption losses
- Alternative accommodation costs
- Associated legal expenses
A carefully planned strategy can help maximise recovery opportunities whilst ensuring that urgent remedial works are not unnecessarily delayed.
Evidence Businesses Should Preserve Now
The success of many construction defect claims is determined by the quality of the evidence available.
Unfortunately, businesses often discover defects years after completion, by which point important records may have been lost, deleted or archived.
As soon as a defect is identified, steps should be taken to preserve potentially relevant information. This may include:
- Construction contracts and appointments
- Drawings and specifications
- Site photographs and inspection records
- Practical completion documentation
- Product information and certifications
- Emails and project correspondence
- Meeting minutes
- Expert reports and surveys
Maintaining comprehensive records throughout a project not only supports potential claims but can also be invaluable when defending allegations made by others.
Insurance and Funding Considerations
Insurance can play a significant role in managing the financial impact of construction defects.
Businesses should review their insurance arrangements at the earliest opportunity to understand what cover may be available and whether notification obligations apply. Similarly, consideration should be given to the financial position of parties that may ultimately be responsible for the defects. A strong legal claim is of little benefit if the respondent lacks the resources to satisfy any judgment or settlement.
Understanding the practical realities of recovery at an early stage often helps businesses make informed decisions about dispute resolution strategy, settlement opportunities and litigation risk.
Future-Proofing Projects Through Better Contract Drafting
Whilst disputes cannot always be avoided, many risks can be significantly reduced through careful planning and drafting before a project begins.
Well-prepared construction contracts should clearly allocate responsibility for design, workmanship, quality assurance, compliance obligations and risk management. Ambiguity in these areas frequently becomes a source of dispute when defects later emerge.
Businesses should also ensure that contractual arrangements are supported by robust project governance, effective record keeping and clear communication between project stakeholders.
Taking a proactive approach at the outset is often considerably less expensive than dealing with the consequences of a major defect claim years later.
Protecting Your Position
Construction defect claims are becoming increasingly common and increasingly complex. Businesses that understand their contractual rights, preserve evidence effectively and seek legal advice at an early stage are generally in the strongest position to manage risk and pursue recovery where appropriate.
Whether you are dealing with newly discovered defects, responding to allegations from a building owner or seeking to improve risk management on future projects, obtaining specialist advice early can help protect both your commercial interests and your long-term business objectives.
At Herrington Carmichael, our Construction and Disputes teams advise developers, contractors, consultants, funders and property owners on construction defect claims, remediation disputes and risk management strategies. If you would like to discuss a potential claim or review your contractual position, please contact us.
