Common mistakes after Construction Agreement Ep.3 ‘Defects List’
This volume is the final episode of the series. Sure, there are more common mistakes, feel free to share your personal experience about it for the benefit of the other people. and we may have a special episode.
Defect is a part of construction work, it may be caused by labor skill, contractor skill, sub-contractor skill, equipment and material. In legal view, there are two main types of defects, the small defect and the serious defect. An easy way to define these two defect types are; a Small Defect means the work is not beautiful as it should be but it is still useable without a hazard like painting and skimming etc.; a serious defect means the work can’t be used as it is or it is not safe to use like no standard material and structure of the building. Some defects are easy to see but some aren’t. It may appear during the construction or at the time of delivery or after delivery before/after warranty periods are finished. This article focuses on both defects which appear before the warranty period is finished.
When the defect appears, if the contractor has fixed the defect as the owner requests and expects, the case is ended. If not, the third common mistake is coming and a dispute just begins. What will people do when the contractor hasn’t fixed the Defect as their expectation?
Most owners do the same, prepare a defect list and damage list themselves without knowing and understanding the duty of proof and standard of proof in Thai Legal System. Here is an important Note; although the contractor has a liability for the both defects according to the terms and conditions of the agreement and privity of contract theory. But the owner has a duty of proof of defect and damages. And the proof must attain a legal standard. That is why preparing a Defect list and Estimate Damages list without certification by a third constructor is a common mistake, this mistake has a serious effect on the compensation amount paid to the owner.
Although the Court has a right to decide the amount of damages without evidence provided, it often does not cover the damages in reality. A voice of a third party is louder than the voice of the disputant. This legal theory has been accepted since Roman age until this day.
A defect and damages list shall be prepared by a third constructor which refers to the Department of Business Development to provide the middle price for construction and consequently meet with the duty of proof and standard of proof in Thai legal system.
Law reference; Section 222 to 225 of the Civil and Commercial Code and Section 85 and 104 of the Civil and Commercial Procedure Code. Supreme Court Judgment No.1086/2509
If you or your friend are dealing with a contractor problem. No matter as a house owner or Real Estate Developer, we are able to give you legal advice for construction disputes both in Court or Arbitration, just feel free to contact us.
Articles by Akenarin Thongplod Thai Barrister at Law Notarial Services Attorney