52121375-understanding-decennial-liability-in-relation-to-constru

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Understanding DecennialLiability In Relation ToConstruction ContractsBY ADMIN | MARCH 8, 2011

Everyone in the construction industry talks of “decennial liability” but most of

them have not got a clue as to what it means. Decennial liability is liability for

stipulated occurrences over ten year periods of time. This is particularly

applicable as a strict liability under French Civil Law for construction works.

Even Common Law countries like the United Kingdom, the United States and

Canada have a system of decennial liability underwritten by insurance. The

extent and exposure of the parties liable may differ from country to country

but the principle is the same.

What is Decennial Liability?

As described in the foregoing paragraph, this is liability that is imposed by law

on construction activities for a period of ten years. Any damage or collapse to

a constructed structure will require to be reinstated to its original position by

the persons responsible. The liability in respect of the part so reinstated will

continue to remain for another ten years while the rest of the structure will be

subject to the period of liability remaining. As an example, if one part of a

building collapses due to a failure in one pile after five years of its completion

and the parties concerned repair and reinstate this portion by underpinning

the pile and restoring the damaged part. The liability for this part will continue

for another ten years while the unaffected parts will be subject to the

remaining five years of the period of liability.

Who is held liable?

Article 1792 -1 of the French Civil Code gives a broad brush definition of

“builders” as (1) architects, contractors, technicians or other persons bound to

the building by a contract of hire or work, (2) any person who sells, after

completion, a work which he built or had built (3) any person, who, although

acting in the capacity of agent for the building owner, performs duties similar

to those of a hirer out of work. The consultants (the one responsible for design

and also the one responsible for supervision) and the contractor are jointly

and severally liable for any collapse. Therefore, it would mean that the

designer (architect or engineer), the supervisor and the contractor are equally

exposed to the issues of liability insofar as their respective involvements are

concerned. The French law extends the liability to developers and leasing

agents as well, who in turn will extend the liability to the first category of

people. In Abu Dhabi it is mandatory that supervision of building works should

be carried out by a licensed engineering office. Thereby the Abu Dhabi Law on

“Organising Building Works” makes designers and/or supervisors liable both

for safety during construction and for a period of ten years thereafter. Articles

880 to 883 of the UAE Civil Code attaches, mandatory ten years liability on

the contractor, designer and supervisor. Similarly Articles 602 to 697 of the

March 2011 (2) February 2011 (2)

January 2011 (6) December2010 (3)

November2010 (1)

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Born in 1936 in Sri Lanka, Dr Haris Deenhas over 50 years experience working in theconstruction industry. His work has takenhim accross the globe, working on marqueeprojects all over the world, including SriLanka, the United Kingdom, Saudi Arabia,Malaysia and the State of Qatar. Now anexpert in Contract Law, his current role is inQatar as Special Advisor to the President ofAshghal (Public Works Authority). Dr HarisDeen earned his PhD in 2000, and haswritten and published two books in the fieldof construction.

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1 of 13 02/04/2011 09:44

Kuwaiti imposes decennial liability on the contractor and a division of design

liability in unclear terms. Saudi Arabian Rules for Implementation of the

Tender Regulations – Article 30 and the Oman BCEW Conditions for public

works makes the contractor liable for ten years with a requirement for the

contractor to review the design of the works. Does this mean that the designer

and supervisor is not held liable? According reliable sources not so, they are

equally liable according to their interpretation of the law. In the State of Qatar

main contractors, design consultants and supervisors are liable under Article

711 of Law No. 22 of 2004 of the Civil Code. Therefore, generally it is the

designer (who designs the building), the main contractor (who

constructs according to the design provided) and the supervision

consultant (who is expected to ensure construction according to the

design) are all liable under the Laws cited in this paragraph.

It seems unreasonable to hold the supervision consultant, where he has no

involvement or say in the design but supervises the operations to ensure

construction according to designs and specifications supplied to him. It would

seem that the original intention would have been that the design consultant

himself supervises the construction works. However, this is not so in the

Middle East. Therefore, it will be up to consultants undertaking supervision

work to challenge this concept by proving that they had acted with absolute

skill and care and it is not their negligence, lack of care or diligence that

caused any damage. The burden of proof will be on them (reverse burden),

because the owner does not need to prove fault.

What is the law?

The French Civil Law could be described as the trigger for decennial liability,

aimed at protecting the interests of building owners. The Spinetta Statute

enacted in France in the year 1978 guarantees the protection relied upon.

Articles 1792 and 1792-4-1 of the French Civil Code make it a strict liability

on builders for construction works up to ten years from acceptance of the

works. There is no need upon the owner to prove fault when any damage of a

defined nature occurs in order to claim usually repairs. The Articles of the

Laws of the different countries cited in the last paragraph to a great extent

states the law, except in Bahrain where the liability is for five years. The UAE’s

Civil Code, Federal Law No. 5 of 1985 contains extensive clauses to cover

construction work and Articles 880 to 883 impose upon the contractor and the

designer strict joint liability for ten years covering any defect in the building

designed by the architect and constructed by the builder. It is important to

note that Article 880 (1) also makes the supervision consultant liable.

The decennial liability period starts when the works are taken over at the end

of the contractual defects liability period on the issue of the defects liability (in

some contracts maintenance) certificate. Any defects of whatsoever nature

that would appear during the contractual defects liability period do not come

within the ambit of decennial liability. Decennial liability starts only after

all contractual liabilities are extinguished.

Does that mean that there is no contract in place and the contractor and the

consultants are absolved from any further liability?

Not so – decennial liability is a legal requirement and has to be

honoured whether included in the contract or otherwise.

What is the extent of liability?

The extent of liability extends to all buildings or any other structures against

total or partial collapse and/or a defect threatening stability or safety of the

structure.

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2 of 13 02/04/2011 09:44

There is no specific definition of a building or structure in the Laws attributed

to Decennial Liability in the Middle East. The NHBC Insurance in the UK

though covers specific events so described therein.

Michael Grose and Laura Warren point out in respect of Decennial Liability

under the Qatari Code, that liability attaches notwithstanding that the collapse

or defect is caused by sub-surface conditions or that the building owner

approved the defective work and that buildings or structures, the life cycle of

which is less than ten years, attract liability for the duration of that life cycle.

The question often arises in respect of infrastructure projects which has a

combination of buildings, structures (like bridges, underpasses, overpasses,

culverts etc). Where does one draw the line? I believe that in applying the law

one must give it’s simple meaning as perceived from the wording in the Law. A

building is simple as defined but the problem of interpretation arises when

dealing with a structure. Is road a structure? Probably someone will come up

with an answer or seek the courts intervention. In this context it is relevant to

refer to Article 880 (2) of the UAE Civil code which translated into English

states that “the obligation to make compensation shall remain regardless of

whether any defect or collapse arises out of a fault in the land itself or that the

employer consented to the construction of the defective buildings or

installations. Under Article 1792 of the French Civil Code the damages on a

work must, either endanger the strength of the building or affecting it in one

of its constituent parts or one of its elements of equipment, render it

unsuitable for its purpose.

Is it insurable?

In Europe and the Americas there are insurance companies providing

decennial liability insurance. In the United Kingdom for instance all contractors

take out the NHBC insurance to cover this risk. I also found an insistence on

some owners in Saudi Arabia for contractors to provide such insurance. Under

French Law Article L 241-1 a builder must be covered by compulsory liability

insurance (assurance de responsabilite obligatoire) and must be covered by

compulsory insurance against damage under Article L 242-1. The French law is

very strict on these insurances and imposes a punishment of a six months

prison sentence and/or a fine of €75,000.

It will be a prudent action on the part of investors in the Middle East

dependant on foreign contracting firms for almost all their major construction

needs, to insist on providing such insurance. The problem really will arise in

the administration after the works is complete and the contractors have left

the country. The logistics of the administrative arrangement will have to be

meticulously worked out.

Time for bringing a claim

In common law countries the Statute of Limitations will provide the time limit

with which a claim should be brought. In the UK for contractual claims it is six

years from the first occurrence of the event. In the USA it depends on each

States laws.

According to Article 714 of the Qatari Civil Code, claims for compensation must

be commenced within three years of the collapse or discovery of the defect.

Similarly Article 883 of the UAE Civil Code makes it mandatory for a claim to

be brought within three years from the collapse of the building or discovery of

the defect.

References:

Bundschuh, G – Risk Brief – Design and Construction (February 2009) – Ames


3 of 13 02/04/2011 09:44

«Previous Post Next Post »

& Gough (downloaded 07.03.2011)

Dimitracopoulus A – Architects Liability Under UAE Law (September 2004)

(downloaded 07.03.2011)

Grose, M and Warren, L – Decennial Liability under the Qatari civil code –

(October 2007) – Clyde & Co (downloaded 07.03.2011)

15 COMMENTS • LEGAL

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4 of 13 02/04/2011 09:44

Reply

Mohammed Awad on March 10, 2011 at 8:05 am.

Normally the liability of the parties to any contract ceases by the

expiry of the contract’s duration or the performance of the agreed

obligations, this is also applicable to the liability of contractors.

When the contract expires, the contractor is no more liable to carry

out any new works, or to provide any technical support or any of

the obligations arising from the contract.

However, the law may extend the liability of the contractor for

construction defects, this liability will normally start at the end of

the agreed maintenance period and continue for 10 years.

The laws applicable in many countries impose this liability on

contractors, including the countries of common law origin such as

Sudan, this reflects the importance of decennial liability and its role

in construction industry.

Reply

Haris Deen on March 10, 2011 at 9:35 am.

Yes; Mr. Awad,You as a lawyer understood the concept exactly as I have explaned.You are absolutely right all contractual liability for construction anddefects paten and latent during the contract period, i.e up to theissue of the defects liability (or maintenance in some contracts)certificate. But the legal liability as contained in the law is notextinguished and the parties to whom such law is applicable will beheld liable for the stipulated damages and for the stipulated period.

15 Comments


5 of 13 02/04/2011 09:44

Reply

Hemantha Mendis on March 12, 2011 at 2:34 am.

Hi Dr Deen,

Very interesting and important topic. It will be very useful for me.

At present I am employed as the Contract Administrator with the

Gladstone Port Corporation Civil Projects Team. We are responsible

of managing Deepening of the shipping Channel of the Gladstone

Harbour to facilitate Berthing of Large LNG Carriers. I am mainly

responsible for the construction of the Dredging Basin that

comprises a 8.2 km Bund in the Sea.

I will pass this information to my project team.

Hope you are keeping well !!!!!!

Reply

Adelito Bunyi on March 13, 2011 at 10:12 am.

Hi Dr. Haris,

Thanks for sending this interesting blog.

Is the liability limited to structural damage or collapse?

We had a project in Qassim (KSA) where the owner came to us

(Contractor) just before the elapse of the 10-year period. The

problem was spalling in some roof beams and slabs, which was

starting to collapse, caused by breach in the roof waterproofing.

The waterproofers investigated and they sent a report that it was

the fault of the MEP whose roof equipment anchors pierced their

membrane. The MEP people in-turn said their contract obligations

and liability has long expired with the DL period. After months of

going-around in circles, the Contractor did the concrete repair, the

equipment pads, and the restoration of waterproofing.

Cheers and regards.

Reply


Dear Adelito,

Nice to hear from you. The liability is in respect of structuraldamage and also on collapse. There is no need for the structure tocollapse to claim liability as long as there is structural damage. Irecall a case in Medina, Saudi Arabia (1979) where there wasstructural damage to the roof of a sewerage treatment plant builtby Taylor Woodrow Construction. The damage occurred after sixyears of construction completion and Taylor Woodrow had to comeback and re-construct the roof.

As for the M&E Sub-Contractor, he has no liability as far as theEmployer is concerned. But remember, the design consultant andthe supervision consultant are equally liable along with thecontractor and this is strict liability which does not need proof ofwhose fault it was. I hope this clarifies your concerns.

Troy Dias on March 13, 2011 at 10:32 pm.


6 of 13 02/04/2011 09:44

Reply

Dear Dr. Dean,

Thanks for the article. I have a question regarding UAE Civil Code.

Unfortunately I don’t have it with me now but if my memory serves

me right Article 880-883 only states the contractor and the

designer are jointly liable for total or partial collapse of a building

for ten years (minimum – if we want we can increase but cannot

reduce it). If that the case, I think the supervision consultant (or

the Engineer under FIDIC) is not liable under these provisions.

Reply


Thanks Troy.You have read Article 880 and 881 of the UAE Civil Code in theright context. The true wording as translated from Arabic does notseem to indicate any liability on the supervision consultant.However, the exclusion contained in Article 881 – “If the architecthas not supervised the construction work, he is answerable solelyfor the defects of the design”. Strictly applied (as translated) thismight mean that the supervision consultant is excluded from theequation of liability. Perhaps, one of our readers conversant inArabic might shed some light on the exact meaning of Article 880(1) as written in Arabic.

Reply

Assalamu Alaikum!

Dear Dr. Haris,

1. Last year I was working for a contractor who was constructing a

high rise building in Qatar. The client insisted on issuing ‘Decennial

Liability Insurance’ at the commencement, whereas contractor

stressed that it should be issued at the completion of the project.

This led to a serious dispute and the contractor was preparing to go

for an arbitration. I left the company at that point so was not aware

of the outcome. Was the contractor correct?

You have emphasised that “Decennial liability starts only after all

contractual liabilities are extinguished.” When is the ideal time to

issue the certificate?

2. Is it possible to increase or decrease the period of Decennial

Liability?

3. “Any damage or collapse to a constructed structure will require

to be reinstated to its original position by the persons responsible.”

Should an employer wait until a damage or collapse occurs? Is the

contractor exposed to a claim if a defect was discovered and there

is no damage yet?

4. What’s time limit for a claim after a damage (one year, two

years)?


Ameen, Thank you for your queries for which I respond as follows:


7 of 13 02/04/2011 09:44

Reply

Troy Dias on March 20, 2011 at 11:50 am.

Whist I still maintain my opinion that BQ should not use to identify

the Scope of Works, in the same context I further disagree with you

that BQ quantity should be used for the purpose of valuing

variations.

Generally, in relation to the valuation of variations, standard forms

include two important provisions; (a) variations should be

measured and (b) valued using rates and prices contained in the

Contract (if applicable). Thus, in both omissions and additions,

quantities should be measured using the Contract Drawings and the

revised Drawings. On the same token and in extreme cases, you

could deduct more than the Contract Price in case of a variation.

For example in a curtain walling contract (lump sum price of 5

million) with BQ includes only one item for curtain walling (1,000

m2 and 5,000 per m2) and CA instructed to change the curtain

walling to cladding (rate = 5,050 per m2). In this case, if the

measured quantity is only 1,050 m2, then actually the Contract

Price will be increased by 52,500 as the omitted value exceeds the

Contract Price.

Reply

Troy Dias on March 20, 2011 at 11:56 am.

Sorry – just noticed – my above comment is not related to this

article.

Amal Jayasuriya on March 21, 2011 at 11:11 am.

BUILDING CONSTRCUTION INDUSTRY

DECENNIAL LIABILITY FOR BUILDINGS

The above law is prevailing in France and the Middle East countries

like e.g UAE allows the “Builder” to be liable to the owner or the

developer for damages for any structural defects of a building upto

10 years from the time of final hand over.

Decennial Liability being part of the Law of the country is above

any contracts that parties enter into for construction works, which

means liability of the builder is guaranteed by the law and this

cannot be altered by way of any contracts of which may become

unlawful if found to be contradicting with the country’s laws. Hence,

the government of a country who has this law shall enforce it on all

construction contracts that fulfill the criteria.

The purpose of this article is to highlight multiple issues that need

clarification on the Decennial Liability law from the point of an

Architect / Builder as this law forces major liability on Architects

and Builders as interpreted by the law.

• The term builder is used to interpret the construction team which

during the recent past is headed by the Architect. Thereby,

Architect was vested the full responsibility of delivering the project

to the client. The management of contractors, supervising the

works was part and parcel of the responsibilities of the architect.

However, it is a common fact that with the modern projects, parties


8 of 13 02/04/2011 09:44

to the project are many with varying responsibilities and different

types of procurement systems are used to engage specialists in

many fields which contribute to the project. In this scenario it has

been noticed that the Architect has lost most of the control of the

project and sometimes limited to preparation of construction

drawings. As a result, the liabilities of each party will be limited to

the services provided.

This shows that in modern projects it will be extremely difficult to

establish the liability for a certain defect as all services are inter-

related.

However the basic interpretation in the law is very broad and will

legally cover all parties as being responsible.

• Law explains that the liability is limited to 10 years in the case of

buildings which are intended to have a life span of more that 10

years, However, this may not be applicable to buildings which is

intended to last less than 10 years. This concept is extremely

ambiguous.

1.1 What is a “building”

This is explained as any man built element, hence will include

roads/dams/infrastructure projects ect. However different issues

persists in these types of project which needs further investigation

when enforcing Decennial Liability.

1.2 Life span of a building

This concept of life span has many aspects. To name a few,

• Economical lifespan

• Structural lifespan

• Aesthetical lifespan

• Functional lifespan

The law is applicable for buildings having a lifespan of more than 10

years. Hence, the concept of lifespan is very critical in enforcing the

law.

It is a common fact that 99% of the developers or clients do not

emphasise the lifespan of their building needs. The modern market

driven economy is pushing consultants and contractors to be ever

more economical in their works and constructions to ensure that

the project becomes financially viable and as a result will be a

profitable investment to the developer. Hence the lifespan of a

building is critical in design stage to ensure that the project

becomes economically feasible.

Then, to make all this happen who decides the lifespan. is it the

Developer, Architect, Structural Engineer? With the lack of clarity

on this matter, it will most probably be the structural engineer who

will design the structure which will last to a generally accepted

lifespan.( Structural Lifespan)

But, as far as the architect and developer are concerned, more

emphasis will be on the Economical lifespan and the Functional

lifespan, which will decide whether a building will be in use in

future.

Another aspect of designing buildings is that all buildings are

designed for a purpose or a specific function. As a result designer is

fully responsible for the developer to ensure that the building

serves the purpose which it was intended to. Hence the emphasis is

more on the functional lifespan while the building is at the design

stage thereby the responsibility of the Architect is restricted to the

extent where the building is used for the intended function. Which


9 of 13 02/04/2011 09:44

means, if the developer decides to change the function due to

commercial interests or any other reason, the Architect’s

responsibility for the building may become unenforceable. This is

common to all consultants, including structural.

Hence, it is clear that the concept of lifespan of the building may

become a controversial issue when enforcing Decennial Liability.

The above issues needs more clarification in terms of to what

extent the Decennial Liability Law addresses the above matters.

The following article is an extract on the Decennial Liability which

also emphasizes some more issues.

Filed in Construction Industry, Contract Administration on Jan.29,

2010

By Lisa Dale & Steven Hunt

Since the advent of Dubai’s construction boom circa 2002, fuelled

by the relaxation of restrictions on property ownership by foreign

nationals, thousands of new residential property units have been

completed by developers and handed over to their new owners for

occupation. This relatively recent phenomenon of home ownership

on any significant scale has heightened the need for both

contractors and developers to understand their potential legal

exposure to home owners when defects begin to appear in the

properties that they have either constructed or sold to them.

Property defects can range from major structural defects that

threaten the stability of a building, and in some cases cause its

partial or total collapse, through to more minor non-structural

defects such as a leaky roof or loose floor tiling. In this article, we

explore the principles of decennial liability and latent defects under

the laws of the United Arab Emirates (“UAE”) and Dubai, and

address the issue of contractors’ and developers’ liability in respect

of each. This article does not seek to address either contractual

liability or tortious liability, both of which also require consideration

as circumstances dictate.

Decennial liability

Decennial liability is a form of strict liability arising from the French

Civil Code. It has been widely adopted in Middle East civil code

jurisdictions, including the United Arab Emirates, Kingdom of Saudi

Arabia, Kuwait and Qatar.

The UAE Federal Civil Code: Supervising architects and contractors

liable to Developers

The source of decennial liability in Dubai is to be found in the UAE

Federal Civil Code¹ (“Civil Code”), in Articles 880-883. In summary,

these Articles provide that the contractor and the supervising

architect (which, where the context permits, can mean the

supervising engineer) are jointly liable to the employer for a period

of ten years from the date of delivery of the work if:

The building constructed or installation erected suffers total or

partial collapse; or

There is a defect which threatens the stability or safety of the

building.

The available remedy to the employer is compensation, and the

obligation to compensate arises notwithstanding that the collapse

or defect arises out of a defect in the land or that the employer

consented to the construction of the defective buildings or

installations. This all applies unless the contracting parties intended

that the installations should remain in place for less than ten years.

It is not possible for the supervising architect or contractor to


10 of 13 02/04/2011 09:44

“contract out” of decennial liability or to limit his liability. However,

it should be emphasised that where the role of the architect is

simply to prepare plans and not to supervise their execution, he is

liable only for defects in the plans.

The “no fault” concept of decennial liability contained in the Civil

Code is somewhat onerous for supervising architects and

contractors when compared with many common law jurisdictions,

where liability will generally only attach to architects and

contractors if they have failed to perform their professional

obligations in accordance with the requisite standards of

professional skill and care.

It is clear from the foregoing that the supervising architect and

contractor is liable only to the developer, as the employer, under

the decennial liability provisions contained in the Civil Code.

Subject to what we say below regarding a contractual extension of

liability under Article 254 of the Civil Code, the architect and

contractor are not liable to the home owner under the principles of

decennial liability as there is no direct contractual relationship

between them.

Dubai’s “Strata Law”: Developers liable to home owners?

Whilst the Civil Code provisions relating to decennial liability

described above impose potential strict liability only on supervising

architects and contractors, there are provisions in Law No (27) of

2007 on Ownership of Jointly Owned Properties in the Emirate of

Dubai (the so-called “Strata Law”) which, in the context of strata

developments, apparently extend the concept of decennial liability

to developers towards home owners and Owners’ Associations.

Article 26(1) of the Strata Law states (in translation):

“In compliance with the construction contract provisions in [the

Civil Code] the Developer remains liable for 10 years from the date

of completion certificate of the building to repair and cure any

defects in the structural elements of the Jointly Owned Property

notified to him by the Owners’ Association or a Unit Owner.”

Articles 880-883 of the Civil Code, which contain the decennial

liability provisions described above, are the only Articles in the Civil

Code that specifically refer to a 10-year liability period for

structural defects in relation to construction contracts (hence the

term “decennial”). The implication is, therefore, that although the

statutory remedies differ, the effect of Article 26(1) of the Strata

Law is to extend the application of decennial liability to developers

vis-à-vis the owners of their properties in strata schemes and their

Associations (the latter with regard to the common areas in such

schemes). We are not aware that this has yet been tested before

the Courts or any arbitration tribunal. At the very least, however,

the effect of Article 26(1) is to extend a developer’s liability for

latent defects in the structure of the property beyond the original

contracting purchaser of his property to all persons who own that

property within the first 10 years of its completion. Latent defects

generally are discussed further below.

Latent Defects

The examples referred to earlier of loose tiles and leaky roofs fall

within the realm of latent defects. Simply put, latent defects are

defects which are neither discovered nor capable of being

discovered at the time of issuance of the certificate of practical

completion for the building. They may be of a structural or

non-structural nature.

The UAE Federal Civil Code: Contractors liable to developers;

developers liable to purchasers

There are no provisions in the Civil Code that specifically deal with


11 of 13 02/04/2011 09:44

Reply

latent defects in relation to muqawala (construction contracts).

However, the Civil Code does recognise the principle of latent

defects elsewhere, for example in Article 544. This relates to sale of

goods, but the principle has broad application, including arguably in

respect of construction related issues.

Article 544 of the Civil Code deals with “old” (pre-existing) defects

in goods sold and defines such defects as follows:

“(4) for a defect to be regarded as old it must have been latent, and

a latent defect is one which cannot be observed by an external

inspection of the goods, or which would not be apparent to the

ordinary man, or which could not be discovered by any person

other than an expert or which would only be apparent upon

testing.”

Thus, by virtue of the construction contract, a contractor is

potentially liable to the developer for latent defects appearing in

the property that he constructs; and by virtue of the property sale

contract, a developer is liable to a purchaser for the same latent

defects. One mechanism that a developer might employ in order to

make the contractor directly liable to the purchaser is founded upon

the provisions of Article 254(1) of the Civil Code which states (in

translation):

“It shall be permissible for a person to contract in his own name

imposing a condition that rights are to enure to the benefit of a

third party if he has a personal interest, whether material or moral,

in the performance thereof.”

In other words, a construction contract may contain an express

provision that, depending upon its precise drafting, effectively

enables a purchaser (as an interested third party) to directly

enforce remedies for defective property against the contractor. This

would not, however, necessarily relieve the developer from his own

liability to the purchaser.

Conclusion

In this article we have sought to explain the remedies that are

available as a matter of general law under the UAE Federal Civil

Code when property defects occur after the property has been

handed over by the developer to the home owner. We have looked

at both decennial liability and liability for latent defects, in the

context of both a contractor’s and developer’s exposure for the

same.

Of course, a construction contract or property sale contract will

usually contain express warranties regarding defects, which often

provide wider rights to the purchasing party than those afforded

under the Civil Code. A review of the contract is therefore also

important, alongside the provisions of the Civil Code.

Finally, in this article we have not explored the remedies available

when property defects occur, the role of insurance or the applicable

limitation periods within which claims need to be brought. Each of

these factors are also of relevance and must be considered when a

party, be it the contractor, developer or home owner, is involved

with a claim for defective property.

——————————————————————————————————————————


Thank you very much Amal, nice to hear from you from far awayNamibia:

Although, I do not wish to contradict what you have stated at


12 of 13 02/04/2011 09:44

Reply

Mohammed Awad on March 29, 2011 at 2:06 pm.

With regard to the duration of Decennial liability and the ability of

the parties to agree to a longer period of liability, it is very

important to refer to the terms of the pertinent law applicable to

the contract so as to determine the exact duration stated by the

law (in some cases the duration of the liability can be less than 10

years e.g in case of temporary buildings intended to be removed

after 9 years, the liability period will be 9 years).

The law may allow the parties to extend the duration of this liability

by mutual agreement.

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52121375-understanding-decennial-liability-in-relation-to-constru

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