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Liability In Relation To
Construction Contracts
ABOUT HARIS DEEN, PH.D., MBA, B.SC.,
FRICS, ACI ARB. (RETD.)

BY 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 Born in 1936 in Sri Lanka, Dr Haris Deen
Canada have a system of decennial liability underwritten by insurance. The has over 50 years experience working in the
extent and exposure of the parties liable may differ from country to country construction industry. His work has taken
but the principle is the same. him accross the globe, working on marquee
projects all over the world, including Sri
What is Decennial Liability? Lanka, the United Kingdom, Saudi Arabia,
Malaysia and the State of Qatar. Now an
As described in the foregoing paragraph, this is liability that is imposed by law expert in Contract Law, his current role is in
Qatar as Special Advisor to the President of
on construction activities for a period of ten years. Any damage or collapse to
Ashghal (Public Works Authority). Dr Haris
a constructed structure will require to be reinstated to its original position by
Deen earned his PhD in 2000, and has
the persons responsible. The liability in respect of the part so reinstated will
written and published two books in the field
continue to remain for another ten years while the rest of the structure will be of construction.
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 Dr Haris Deen would like to share some of
and the parties concerned repair and reinstate this portion by underpinning his vast experience with you. Enjoy the site!
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.
RECENT POSTS

Who is held liable? Intepreting Construction Contracts

Understanding Decennial Liability In Relation
Article 1792 -1 of the French Civil Code gives a broad brush definition of To Construction Contracts
“builders” as (1) architects, contractors, technicians or other persons bound to
Site Update – February 2011
the building by a contract of hire or work, (2) any person who sells, after
Employers Do Not Need Proof For Forfeiture
completion, a work which he built or had built (3) any person, who, although
on Demand Bonds
acting in the capacity of agent for the building owner, performs duties similar
The Significance of Interim Payments in a
to those of a hirer out of work. The consultants (the one responsible for design
Construction Contract
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
ARCHIVE
exposed to the issues of liability insofar as their respective involvements are
concerned. The French law extends the liability to developers and leasing March 2011 (2) February 2011 (2)
agents as well, who in turn will extend the liability to the first category of January 2011 (6) December
people. In Abu Dhabi it is mandatory that supervision of building works should 2010 (3)
be carried out by a licensed engineering office. Thereby the Abu Dhabi Law on
November
“Organising Building Works” makes designers and/or supervisors liable both 2010 (1)
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
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Kuwaiti imposes decennial liability on the contractor and a division of design Entries RSS Comments RSS
liability in unclear terms. Saudi Arabian Rules for Implementation of the
WordPress.org
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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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

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& 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)

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15 Comments
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 and
defects paten and latent during the contract period, i.e up to the
issue of the defects liability (or maintenance in some contracts)
certificate. But the legal liability as contained in the law is not
extinguished and the parties to whom such law is applicable will be
held liable for the stipulated damages and for the stipulated period.

Reply

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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

Haris Deen on March 13, 2011 at 11:34 am.

Dear Adelito,

Nice to hear from you. The liability is in respect of structural

damage and also on collapse. There is no need for the structure to
collapse to claim liability as long as there is structural damage. I
recall a case in Medina, Saudi Arabia (1979) where there was
structural damage to the roof of a sewerage treatment plant built
by Taylor Woodrow Construction. The damage occurred after six
years of construction completion and Taylor Woodrow had to come
back and re-construct the roof.

As for the M&E Sub-Contractor, he has no liability as far as the

Employer is concerned. But remember, the design consultant and
the supervision consultant are equally liable along with the
contractor and this is strict liability which does not need proof of
whose fault it was. I hope this clarifies your concerns.

Reply

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

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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

Haris Deen on March 14, 2011 at 8:40 am.

Thanks Troy.
You have read Article 880 and 881 of the UAE Civil Code in the
right context. The true wording as translated from Arabic does not
seem to indicate any liability on the supervision consultant.
However, the exclusion contained in Article 881 – “If the architect
has not supervised the construction work, he is answerable solely
for the defects of the design”. Strictly applied (as translated) this
might mean that the supervision consultant is excluded from the
equation of liability. Perhaps, one of our readers conversant in
Arabic 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)?

Reply

Haris Deen on March 17, 2011 at 11:32 am.

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

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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.

Reply

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

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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

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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

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“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

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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.
——————————————————————————————————————————

Reply

Haris Deen on March 22, 2011 at 11:46 am.

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

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

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Understanding Decennial Liability In Relation To Construction Contracts ... http://harisdeen.com/blog/legal/understanding-decennial-liability-in-relat...

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.

Reply

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