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Contract forms and defects · 3 min read

Latent defects explained: what they are and why insurance does not automatically cover them

A latent defect is a defect that cannot be discovered by reasonable inspection at the time the work is completed and handed over, and that appears later. It differs from a patent defect, which is visible or discoverable at the time. A contractor’s liability for latent defects can continue beyond the defects liability period, depending on the contract and the law. Insurance does not automatically cover the cost of putting right defective work.

What a latent defect is

The word “latent” means hidden. A latent defect is one that was not apparent at completion and could not have been found by reasonable inspection, such as a flaw in concrete or a faulty waterproofing detail that only causes damage after a period of use or weather. A patent defect, by contrast, is visible or discoverable when the work is inspected.

Patent and latent defects compared
PointPatent defectLatent defect
VisibilityVisible or discoverable on reasonable inspectionHidden, not apparent at completion
Typical discoverySnagging and inspection before handoverLater, after use, weather or deterioration
ExampleA crack, misalignment or incomplete finish seen at inspectionA buried element that fails years later
Usual handlingListed and rectified under the contract before or shortly after completionDealt with under the contract’s defects provisions and the law that applies

How long liability may continue

Most construction contracts include a defects liability period, during which the contractor must rectify defects that appear. Some contracts also deal with latent defects, either through a longer period or by leaving the position to the law. Outside the contract, the law may continue to apply, and time limits on claims may start when the defect was discovered or should have been discovered.

Insurance and latent defects

It is a common assumption that insurance covers defects. In general it does not, at least not in the way contractors imagine.

  • Contract works policies are written to cover accidental loss or damage during the works. They commonly exclude the cost of repairing or replacing defective work, even when accidental damage that results from the defect may be treated differently.
  • Maintenance and defects extensions may cover damage arising from the contractor’s operations during the defects period, but do not usually pay for the contractor’s own defective workmanship.
  • Public liability policies may respond to third-party injury or property damage caused by a defect, subject to the terms, but they do not pay to rectify the defect itself.
  • Professional indemnity may be relevant where the defect arises from negligent design, subject to its own conditions. See professional indemnity for contractors.
  • Specific defects cover exists in some markets. Whether it is available for a particular project in South Africa is something to discuss with us. We do not assume it exists.

Security for defects

Contracts often secure the defects period through retention or a guarantee. A retention guarantee or a performance guarantee may remain in place through the defects period. These are forms of security for the employer, and they do not insure the contractor. If they are called, the contractor will normally have to reimburse the provider.

Reducing the risk

Practical steps

  • Read the defects provisions in your contract, including any separate period for latent defects.
  • Keep quality records, test results and as-built information, which help you show that work was done properly.
  • Inspect carefully before handover and resolve patent defects at that stage.
  • Understand how long retention or guarantees must remain in place.
  • Ask your insurer how defects and maintenance periods are treated before you rely on cover.
  • Take legal advice about time limits and liabilities.

Common questions

Is a latent defect covered by my contract works policy?

Generally not as such. Contract works cover addresses accidental loss or damage during the works, and the cost of putting right defective work is commonly excluded. Ask the insurer how resulting damage is treated.

How long can I be liable for a latent defect?

It depends on the contract and on the law. Some contracts set a period, and the law may continue to apply beyond it. Take legal advice about your own contract.

Can retention or a guarantee cover latent defects?

They may secure the defects period, but they are security for the employer and not insurance for you. If they are called, you normally have to repay the provider.

What can I do to reduce the risk?

Keep quality records and test results, inspect carefully before handover and understand how long your obligations run. Good records help to show that work was done properly.

Want to understand how your policy treats defects?

Send us your policy wording or contract clauses and we will discuss how defects and maintenance periods are likely to be treated.

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