Practical completion - what a crazy idea! The courts and legal commentators alike have grappled with the notion of construction works which are nearly but not quite complete, or are notionally, but not actually, complete, or are apparently complete subject to the manifestation of latent defects.
I was confronted with the reality of practical completion over the Whitsun break. The architect cheerfully certified that the works to our weekend cottage were complete, subject to a few outstanding matters, while the plasterer slopped by with a couple of buckets of wet stuff, the decorator had all the windows open and the carpet layer left several rolls of Crucial Trading's best sisal in the garage, refusing to lay it because, well, the place was a building site. Against this background I faced the prospect of the furniture being returned from storage the following day, and, far more serious, the children arriving for the bank holiday. The decision to certify completion had been taken because, on paper at least, very little was left to be done. And anyway, I was told, it is quite usual to issue a qualified certificate. This may, of course, be how it is in practise. Once safely back in the office, returned from what someone with a bleak sense of humour might have called a holiday, I looked into the theory of practical completion.
The courts recognise that the construction of a building is not the same as the manufacture of a product in a factory and that there is no clear demarcation between work in progress and the finished product. They also acknowledge that it is a rare new building in which every screw and every brush of paint is absolutely correct. That being said, a line has to be drawn to mark the end of the construction period, and with it the end of the contractor's liability for liquidated damages, and the beginning of the defects liability period, during which the contractors can put right any defects which subsequently appear. To this end, the JCT standard forms of contract invoke the concept of 'practical completion' but, importantly, do not define it.
Instead it is left to the certifier's discretion to decide, in each case, whether the works are complete. Some certifiers believe that if the works are near enough complete, all outstanding works, be they obvious defects, sizeable omissions or minor snagging, can be dealt with during the defects liability period. The courts, however, have found it difficult to encapsulate the distinction between 'practical completion' and 'completion'. In Jarvis v Westminster the House of Lords said that normally a task was practically completed when it was almost, but not entirely, finished, but the term 'practical completion' suggested the completion of all the construction work that has to be done. In the same case, the Court of Appeal, considering it from the employer's point of view, described, 'completion for all practical purposes, for the purpose of allowing the employer to take possession of the works and use them as intended, but not completion down to the last detail, however trivial and unimportant'. On the question of latent defects, however, the courts are agreed. While they accept that obvious minor snagging items and latent defects, however serious, ought not to prevent completion, if the defects are apparent, the courts have consistently found that practical completion ought not to be certified. In the Nevill Sunblest v William Press and Son case the judge said that an architect would have a discretion to certify practical completion where very minor de minimis works had not been carried out, but if there were any patent defects a certificate should not be given.
So was our architect right to certify completion? Well, we moved into our building site, retreating to the few patches of flooring that had been laid, shutting off what the children called 'the builders rooms' and in the event found that it is amazing what you can do without. That was until we found that the television aerial had not been connected. A wet bank holiday, two children and no television - our weekend enjoyment was far from complete.