Defending yourself against a construction delay claim

On Behalf of | Jan 10, 2024 | Construction Law |

Construction delays are almost inevitable during a major construction project. There are many reasons for delays and sometimes the delay is completely out of your control.

However, this does not shield you from a legal claim for the delay. Both owners and contractors have a right to file a claim for a construction delay.

Being found liable for a construction claim delay can be extremely costly. You may be responsible for paying out various costs that quickly add up, whether you are the owner or the contractor.

No damages for delay

One of the best ways to defend yourself against delay claims is to include a no damages for delay clause in your contracts. This clause essentially says that since delays are a common part of the construction business everyone agrees to write off any costs incurred with any delays.

This clause is not always automatically enforced by a court. You should be specific in what types of delays the clause includes and they should generally be reasonably anticipated delays. This increases the chance of a court upholding the clause.

Another helpful clause in your contracts is a force majeure clause. This clause lists possible events that are outside of the parties’ control and not caused by negligence, stating that if any of these events occur damages for any delay will be waived.

Concurrent delay

Concurrent delay is a commonly used defense. This defense involves showing that there were various events that caused the delay and the delay did not come from one cause.

This is a strong defense simply because it is often true. Construction project delays rarely come from one single cause.

A concurrent delay defense does not necessarily mean you must show that all factors contributed to the delay happened at the same time. You can instead show that any of the factors would have resulted in the delay and therefore you should not be held responsible for damages for the one cause asserted in the claim.

Delays are one of the most frustrating aspects of any construction project and being sued over one can cause you plenty of problems. Taking these steps to defend yourself can go a long way.