Latent vs patent defects: key differences in construction law

That crack in your wall, could you have spotted it sooner? This single question determines whether you have six years or twelve to claim compensation. Latent or patent defects aren’t just legal jargon; they’re the difference between a valid claim and a rejected one. One type is obvious during inspection, the other hides until catastrophic failure. Get it wrong, and your builder walks away whilst you foot the repair bill. For construction & building disputes involving latent vs patent defects, speak with a solicitor specialising in commercial law before your time runs out.

Discover the patent and latent defects meaning and whether that construction flaw gives you six years or twelve to claim.

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Defining patent latent defects in construction

Patent and latent defects represent two fundamentally different categories of construction flaws, each carrying distinct legal consequences and timeframes for claims.

Patent defects:

Obvious flaws discoverable through reasonable inspection at the time of completion or handover:

• Legal expectation: Must be raised immediately or you risk losing your right to claim.
• Discovery timing: Identifiable at practical completion or during snagging inspections.
• Inspection standard: What a competent surveyor would spot during a standard survey.
• Visible defects: Flaws apparent without specialist equipment; cracked render, misaligned windows, uneven flooring, exposed pipework.

Latent defects:

Hidden flaws that remain concealed despite reasonable inspection and only emerge later through their effects:

• Legal protection: Extended liability periods apply because the defect was genuinely undiscoverable.
• Inspection standard: Would require destructive testing, specialist equipment, or removal of finishes to detect.
• Discovery timing: Only become apparent months or years after completion through consequential damage.
• Hidden flaws: Defects concealed within the structure; defective foundations, inadequate waterproofing, substandard structural steel, faulty drainage.

The distinction between latent and patent defects in construction determines limitation periods, available remedies, and whether contractors remain liable.

Patent defect vs latent defect: Visibility and timing differences

The fundamental distinction between patent vs latent defects rests on two factors: when the defect becomes discoverable and what level of inspection reveals it.

Visibility standards:

• Patent defects: Discoverable through ordinary visual inspection by a reasonably competent person.
• Latent defects: Require invasive investigation, destructive testing, or specialist equipment to detect.
• Reasonable inspection test: Courts assess what a competent surveyor would identify during a standard pre-completion walkthrough.
• Burden of proof: Claimants must demonstrate the defect was genuinely hidden, not merely overlooked.

Timing of discovery:

• Patent defects: Apparent at practical completion, handover, or during initial occupation.
• Latent defects: Emerge months or years later, often triggered by weather conditions, building settlement, or cumulative deterioration.
• Manifestation events: Latent defects reveal themselves through secondary damage; damp patches, structural cracks, or system failures.
• Limitation clock: For patent and latent defects in construction, the limitation period starts at vastly different points depending on classification.

Legal consequences:

• Patent defects: Must be raised immediately or included in snagging lists; silence constitutes acceptance.
• Latent defects: Extended protection periods apply because early detection was impossible despite reasonable diligence.

Liability periods for patent latent defects claims

The timeframe for pursuing claims involving patent latent defects varies dramatically based on defect classification, contract type, and when discovery occurs.

Patent defect limitation periods:

• Contractual claims: Six years from practical completion under the Limitation Act 1980.
• Immediate notification: Must be raised during snagging or within a reasonable period after handover.
• Retention period: Many contracts include 12-month defects liability periods for rectifying patent defects at no cost.
• Time bar: Once the six-year limitation expires, claims become statute-barred.

Latent defect limitation periods:

• Contractual claims: Six years from the date the defect is discovered or should reasonably have been discovered.
• Deed-based contracts: Twelve years from practical completion if executed as a deed.
• Long-stop provision: The Latent Damage Act 1986 imposes a maximum 15-year long-stop period.
• Discovery extension: The clock starts when the claimant has sufficient knowledge to bring proceedings.

Key timing triggers:

• Patent defects: Limitation runs from completion date; no extensions for late discovery.
• Latent defects: Limitation runs from discovery date, providing significantly extended protection.
• Subsequent purchasers: May have claims for latent defects vs patent defects even if they weren’t the original contracting party.

Legal remedies and compensation for patent and latent defects

Your available remedies when facing patent and latent defects depend on the defect type, contract terms, and whether the contractor remains solvent.

Remedies for patent defects:

• Price reduction: Deduction from final payment reflecting diminished value.
• Retention withholding: Clients can retain sums until patent defects are properly rectified.
• Rectification works: Contractor must remedy defects during the defects liability period at their expense.
• Cost of cure damages: Financial compensation equivalent to the reasonable cost of fixing the defective work.

Remedies for latent defects:

• Professional fees: Costs of expert reports and investigative works.
• Damages for repair costs: Full compensation for remedying the latent defect and patent defect consequences.
• Diminution in value: Where repairs are uneconomic, compensation based on reduced property value.
• Consequential losses: Recovery for secondary damage; water damage, lost rental income, alternative accommodation costs.

Practical enforcement:

• Adjudication: Fast-track dispute resolution with decisions within 28 days.
• Litigation: Court proceedings for substantial claims requiring binding resolution.
• NHBC claims: New homes benefit from structural defect insurance covering major latent defects for ten years.

Practical impact of patent latent defects on construction projects

The distinction between latent defect vs patent defect directly affects project costs, insurance coverage, resale value, and your ability to recover losses.

Financial consequences:

• Patent defects: Typically cost £2,000-£15,000 depending on severity.
• Latent defects: Often require £20,000-£100,000+ in remedial works due to consequential damage.
• Property devaluation: Unresolved latent defects can reduce property value by 10-30%.

Insurance and warranty implications:

• NHBC coverage: Protects against major structural latent defects for ten years but excludes patent defects.
• Professional indemnity: Architects and engineers carry cover for latent design defects.
• Latent defects insurance: Specialist policies cover non-negligent latent defects for 10-12 years post-completion.
• Policy notification: Late notification can void insurance coverage entirely.

Project management considerations:

• Snagging inspections: Thorough pre-completion inspections identify patent defects before final payment.
• Retention strategies: Withholding 3-5% of contract value protects against unresolved patent defects.
• Record keeping: Comprehensive photographic and written records establish defect timelines

FAQs

• What happens if I discover a latent defect after selling my property? You may still pursue a claim against the original contractor if within limitation periods, but you cannot pass liability to the new owner. The purchaser may have their own separate claim if they discover the defect within their limitation period. Any compensation you receive relates only to losses you suffered whilst owning the property.
• Can a defect be both patent and latent at the same time? A defect is either patent or latent based on discoverability at a specific point in time. However, a latent defect becomes patent once its effects manifest visibly. For example, defective waterproofing (latent) becomes patent when damp patches appear on walls.
• Do I need to hire a surveyor before claiming for patent defects? Not necessarily for obvious patent defects like cracked tiles or misaligned doors visible to any reasonable person. However, for borderline cases where the contractor disputes whether the defect was patent, a surveyor’s report confirming what should have been spotted during standard inspection significantly strengthens your position and proves you acted reasonably.
• What is the difference between latent and patent defects? Patent defects are visible flaws you can spot during reasonable inspection at completion, whilst latent defects remain hidden within the structure and only emerge later through consequential damage. This distinction determines whether you have six years from completion or up to twelve years from discovery to claim.

The distinction between patent and latent defects fundamentally determines your legal rights, available remedies, and limitation periods. Misclassifying a defect or missing deadlines can cost you tens of thousands in valid claims. Early specialist legal advice protects your position and maximises recovery prospects.

Don’t let defects destroy your investment!

Qredible’s network of specialist construction law solicitors can assess your claim, determine whether you’re dealing with patent or latent defects, and fight for the compensation you deserve.

KEY TAKEAWAYS:

• Patent defects are visible flaws discoverable through reasonable inspection at completion, requiring prompt notification during snagging, with claims limited to six years from practical completion.
• Latent defects remain hidden despite competent inspection, only emerging months or years later through consequential damage, with limitation periods running from discovery date and extending up to twelve years under deed-based contracts.
• Available remedies range from rectification works and cost of cure damages to consequential loss compensation, but successful claims depend on proper defect classification, timely expert evidence, and specialist legal representation to navigate complex limitation rules and maximise recovery.