Two months ago, the finishing post was in sight. Ten long months' hard slog had come and gone and seven Lever-Arch files sat in mute testament to this on my shelves. A best estimate of the completion date had been agreed, a removal company was booked to repatriate the contents of our rented house to what would once again be home.
However, nothing is straightforward, and a month ago a sweet neighbour, who objected to noisy working during half term, threatened us with an injunction. Which explains why, despite all the efforts, the house is still not ready for occupation.
Because of the delay, this weekend became a crunch time: the lease on our rented house was nearly up and I was to learn whether wife and children could move in to take partial possession of all floors except for the basement.
Under the JCT, this concept provides for the employer, with the consent of the contractor, to take possession of parts of the works before they are completed. For each part so possessed there is applied a deemed practical completion, a mini defects liability period starts to run, and insurance risk passes. Both parties want completion as soon as possible: the contractor so he may be liberated from the risk of liquidated damages and the burden of project insurance; and the client so he may move into the new surroundings for which he has yearned.
For these reasons, consent is usually freely given – but the contractor should be wary. Despite best intentions, partial possession will nearly always have an impact on the remaining works. More protection will be required to the employer's property and limits will be placed on space and time, the contractor's two most valuable resources. It is surprising how often in these compromised circumstances the contractor will suffer loss and not seek remedy.
By the same token, while necessity may force a client to take partial possession, it is not without danger. The part possessed may be far from practically complete. Once the employer moves in, arguments over what is a snag or betterment tend to proliferate, delaying the project further.
It is these facts that I found myself considering carefully this weekend. I was in a position where I was more or less forced to take possession – through a delay that was by no fault of the contractor. Yet our works were not in a partitioned sense truly "practically complete". It would have compromised the contractor to take possession when he was not in fairness offering up those parts that I could have taken partial possession of as practically complete. Late on Sunday I decided to make alternative arrangements.
Traditionally, architects in such circumstances issue a partial possession certificate with a shopping list as long as your arm. Be warned, however, that this is not strictly provided for by the contract. The better advice is not to take partial possession at all if the work is not approaching a standard whereby the architect might reach the opinion on an elemental basis that it is practically complete.
So the moral of my story is that clients should take care to ensure that the contractor retains possession prior to practical completion. Furthermore, formal partial possession should only be taken if the parts that the employer seeks to occupy are practically complete.
Never forget that circumstances might allow the contractor to quite justifiably complain that it has been hindered or delayed in the completion of the works not taken into partial possession. If work is still to be done in the relevant parts, then the contractor's obligation after practical completion in respect of those parts is as under the defects liability machinery.
So what of us? We remain in our rented accommodation a little longer. The end result will surely be worth it, once all demons are exorcised …
Simon Tolson is senior partner in Fenwick Elliott.