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David Rintoul, ClarksLegal LLP (Credit: BSRIA Ltd)
David Rintoul, ClarksLegal LLP (Credit: BSRIA Ltd)

19 June 2017 | Jamie Harris


The roles and responsibilities of key people on a build project, including that of the facilities manager, should be identified as early as possible to ensure that the soft landings process works most effectively.


That was the view of David Rintoul of law firm ClarksLegal, speaking at last Friday’s BSRIA Soft Landings Conference.


At the event, held at RIBA’s London headquarters on 16 June, Rintoul identified contractual issues around a soft landings process that could hinder its effectiveness.


He described a suggested framework for projects to follow, citing that interaction between individual stakeholders on the project team should occur as early as possible.


“Could FMs be asked to review operations and maintenance manuals?” asked Rintoul, explaining that if liability issues are resolved and made clear, this could be a standard process.


Provisions could be put in place for closer examination of the contractors’ proposals for commission and handover, he added.


“All of this is very relevant when one comes to consider the core test of whether or not practical completion should be certified on a project.”


Rintoul pinpointed a number of contractual issues that can threaten the fluidity of the soft landings process, including being able to distinguish between defects and performance issues of a building.


He explained: “How do the ongoing performance issues sit alongside the more complex questions of defects? In the typical standard form of contracts where we have defects ramifications periods.


“The thing I want to stress from the outset is that we should be looking to distinguish between defects and performance issues, which could include for example, issues around energy performance, usage, fine-tuning of environmental and energy monitoring systems and the like.”


According to case law, defects, said Rintoul, include defects in design, materials or through workmanship.


The importance of this distinction is that the contractor is obliged to remedy these issues during the ramification period, which may be up to a year, post-completion, at no cost to the client.


Even with the defect ramification period in a contract, Rintoul’s framework indicated the need to clarify continuing post-occupancy surveys long after the expiry of this period.