Many companies offer a guarantee or warranty against faulty workmanship and/or materials, although these are largely not relevant, as all works are subject to The Consumers Rights Act 2015, which covers a wide-ranging scope including unfair terms in contract, and essentially updates previous Acts, over-riding any other Company warranty that may be offered. As far as the landscape industry is concerned, the primary issue is likely to be that of faulty or defective workmanship, which may not show up for many months – or years – later.
Any such complaints must be formally registered within six years of completion of a project. This timing is critical, as it will be deemed to be the date of formal handover of a scheme, commonly known as Practical Substantial Completion, or the date when the CDM File is closed and works handed over to the client.
In essence, any project formally completed, signed off and handed over to the customer will be liable for a claim (or notification of such a claim) within six years. Therefore, any warranty issued by the contractor will be secondary, although of course, if the warranty is for a longer period for any reason, then the lengthier guarantee is likely to be held as the prime warranty, irrespective of the Consumers Rights Act, and in favour of the customer.
It is important to recognise the possibility of such a claim, and it is recommended that every client is formally – in writing – issued with a set of instructions regarding maintenance and aftercare of the works, especially materials, at the handover stage. Any claims for deterioration may be mitigated if it can be shown that the client did not follow your instructions. Having provided the customers with that information, it will be up to them to prove that they have maintained the works as recommended and in a timely manner.
Put simply, if a customer orders a driveway or car parking area to support an agreed weight, with appropriate foundations, levels, falls, edging restraints etc, the works may be deemed to be fit for purpose and designed as such at the outset. Fit for purpose being the implicit term to be applied in this instance. The project was fit for purpose at the time of construction, and if there is any substantial variation in the use of the project, any claim would be unlikely to succeed. But only if that purpose and restriction was agreed in writing at the time of construction.
Another example of altering facts between the original works and subsequent problems may include applying waterproof paint over an area of brickwork or rendering, when the original work was built to be breathable. The fact that moisture has been inadvertently trapped behind the fresh paintwork, may cause the bricks (or stone) to spall and disintegrate internally behind the impervious coating.
As a contractor, you cannot be expected to take into consideration every possible scenario whereby a customer makes an addition to their garden. In order to protect yourself against a claim under the Act, it is important that the design logic behind a project is clearly agreed and understood.
It is a wise precaution to collect and retain all documents, labels, instructions and information on products used on a scheme for at least six years, if only to prove that you followed those instructions at the time of installation. With so many new products, materials and methods of building being introduced every year, if you can show that you followed the instructions provided at the time of building, you will have a strong defence against a claim in the future.
It is equally important that the designed purpose for any works is clearly stated, in writing, when presenting a project proposal/quotation at the very beginning of a contract. For example, it is recommended that any works involving paving have a weight restriction placed on them by the contractor. This restriction should be included in the specification provided to the client at the time of quoting. The customer should be asked for their intended use, and if the (say) driveway is only to be used by cars and vehicles up to (say) three tons, if any future damage is caused by dustcarts, oil delivery lorries or four-ton electric powered people carriers, then the customer would have little recourse to claiming for damages.
The critical element here is that the restricted weight limit forms part of the initial contract document, and is not omitted by default.
This is only one example of mitigating your liability. You can only provide the customer with the product they requested at the time of quoting (or amended and subject to a Variation Order), otherwise you have no protection against clients who change their minds – or forget the original brief to the contractor – and later claim for damages for ‘faulty’ workmanship.
Note too, that any warranty supplied by the contractor is not transferable. A new owner cannot sue for works they did not commission. If the original client moves away from the property, or the ownership changes at any time, the warranty period – including Consumers Rights – are voided. If in doubt, in the case of a claim, approach your insurance company, appraising them of all the facts, once you are notified of possible legal action.
If you carry Indemnity Insurance as a Designer or Specifier, you will have the benefit of cover. Should you ever decide to retire or change employment, remember to maintain your insurance cover for at least six years thereafter, to protect yourself against a claim. You cannot take out retrospective Indemnity Insurance cover. The premiums will reduce annually to reflect the diminishing likelihood of a claim as the years go by.
Notwithstanding any legal implications, a contractor may wish to offer a written guarantee as part of their promotional advertising, although it is wise to check first with your insurance company, as it may be their responsibility to provide your client with compensation in a future claim, to ensure they are content with the specific wording.