Although the underlining issues are often similar to commercial construction contracts, the forms of contract can be very different.
Having a standard form of contract helps the parties to understand their obligations to each other and provides mechanisms for dealing with issues that arise. If a dispute does arise, the parameters of the dispute are likely to be narrower and more manageable.
The Federation of Master Builders (FMB) even produces a Short Form Contract for minor work, for example small refurbishments with no structural work.
The parties to a residential or domestic building contract often need to consider a range of legislative issues, including Building Regulations, Planning Permission and Listed Building Consent, CDM (Health and Safety) Regulations and the Party Wall Act, together with consumer legislation.
The questions to consider when selecting a contract include:
The options include the Joint Contracts Tribunal (JCT) Home Owner Contract, as well as the use of Contract Administration Model Forms. Alternatively, The Royal Institute of British Architects (RIBA) produces the Domestic Building Contract 2018 and the Federation of Master Builders (FMB) has a suite of Standard Domestic Contracts.
Depending on the project, it is often desirable to have an independent consultant overseeing the work. They are appointed by the residential homeowner, but have a duty to act impartially and fairly, acting as a buffer between the homeowner and the builder. They then certify their satisfaction or otherwise with the work carried out.
The Construction Act and The Scheme for Construction Contracts apply to commercial contracts and there is a statutory right to adjudicate. There is no such imposition of adjudication in domestic contracts. Nevertheless, the parties can agree in a domestic building contract that adjudication applies.
The JCT Home Owner Contract provides that either the customer or the contractor can have disputes decided within 21 days by an adjudicator. The scheme is run by the Royal Institute of Chartered Surveyors (RICS) or the RIBA. This is as well as the parties’ right to go to court.
The RIBA domestic contract also has a provision giving the homeowner the right to cancel the contract within 14 days of signing it.
Both versions of the JCT Home Owner contract have identical provisions for bringing the contract to an end. As well as the customer’s cancellation rights (within 14 days of signing the contract), if the contractor is (a) not at the premises regularly to carry out the work; (b) not meeting their health and safety or environmental responsibilities or (c) is so incompetent or careless that the work is of an unacceptable standard, then the homeowner may give seven days’ notice to correct the matter.
The contractor can terminate if (a) the customer does not pay an amount due without having good reason; or (b) prevents or obstructs the contractor from carrying out the work, after the same procedure of a seven day written warning.
Both contracts have an identical clause providing that the contractor will remain responsible for any faults in the works (other than fair wear and tear) that are caused by them, for a period of six years.
In the version of the JCT Contract where there is a consultant, they certify when the work is being finished to their reasonable satisfaction. No later than three months afterwards, the consultant will give the contractor a list of any faults that have arising that the contractor is responsible for. Once a contractor has put right all the faults on the list to the consultant’s reasonable satisfaction, the consultant will issue a certificate to confirm this.
If you wish to discuss this further, please do not hesitate to contact David Brown by email: dcb@cooperburnett.com or tel: 01892 515022. David is ranked in Chambers 2026 for Construction, The South.
This blog is not intended as legal advice that can be relied upon
Originally published in Crowborough News: https://crowborough.news/
