The bane of all building projects, construction delays are very often hard to avoid. The reasons for that may vary greatly, with both unforeseen circumstances and human error being likely causes. Because of this, while we all want to be compensated for the losses resulting from the delays, each case has to be evaluated individually, and sometimes you may just not be entitled to a claim at all. In all cases that you can, however, a well-constructed claim is something you need to have established if you want to receive proper compensation for your loss.
Before you start working on a claim, you need to consult your construction contract to find out whether the delay in question is excusable or not. This will determine whether you are even entitled to a claim for the delay.
As a general rule, delays that occur as a result of unavoidable or unforeseen circumstances are considered excusable – this includes extreme weather conditions, unexpected site conditions, or lack of available labour. This may be bad news, but the fact is you can’t expect to receive damages for delays of this nature. You still should be paid for the additional time and costs spent on them.
Things look quite different when the delays stem from an avoidable situation. Most construction contracts include safeguards that protect the contractors from losses, putting the liability for the damages on the party responsible for the delay. Keep in mind, however, that this works both ways, and contractors may be held liable in the event that the delay is caused, for example, insufficient staffing or poor performance, while a property owner is held responsible in cases such as designer errors that make the work of the contractors harder.
Types of delays
It bears mentioning that no two delays are equal, and yet the type is crucial in determining the responsibility and, as a result, who is held liable for them. These types are:
- Excusable delays
- Inexcusable delays
- Concurrent delays
As mentioned in the previous paragraph, excusable delays are by their very definition justifiable. It doesn’t matter who is the cause of the delay – the circumstances behind excusable delays are both unforeseen by either party at the time of contracting and completely beyond the control of the party causing the delay. It is extremely rare that a contractor might receive damages from the owner for excusable delays.
Inexcusable delays always have a clear culprit in one of the parties involved in the project, that being either the owner, contractor or a third party involved. When handling delays before a court, the most important factors determining who is liable for the delay are the cause of the delay, the express and implied obligations under the contract, as well as whether or not the risk of delay has been allocated between the parties.
Inexcusable delays can be divided into:
Compensable delays – caused by an owner, allowing the contractor to receive damages
Non-compensable delays – the contractor is given more time to complete the project, but no damages
Finally, there are concurrent delays. This type of delay involves the compounding of a greater number of delays within a single project, be they the fault of one party or more.
Document everything if you want to make a claim
No matter what type of delay occurs, it should come as a surprise to no one that every single delay instance should be documented at the time it occurs. If you want the claim to have any sort of validity, it needs to be supported by evidence, so make sure you include the small details of the delay’s causes, the cause of the delay, as well as any other pieces of information that can help substantiate your claim.
While we all wish we could live in a perfect world where delays never happen, we live in a world where human error and unforeseen circumstances are simple facts of life. However, if you know the steps you need to take ahead of time, you can minimise any pain and losses stemming from such delays. Be prepared for anything that comes your way and get properly compensated.