What a reservation protects
Defects visible on ordinary inspection must appear in the certificate. Failing that, they are deemed covered by acceptance and can no longer be claimed.
A reservation does not prevent acceptance. Completion may be recorded in the presence of defects, and acceptance with reservations is the normal situation rather than the exception.
Nor does it stop the effects of acceptance. Transfer of risk and the start of periods occur, as the article on what provisional acceptance triggers explains.
A reservation therefore preserves a right; it does not suspend a regime.
How to word an enforceable reservation
Four requirements, whose absence weakens the reservation. They relate to precision and traceability.
Locate precisely. The room, the wall, the element concerned. A reservation about the general quality of finishes identifies nothing.
Describe the finding, not the cause. A damp mark is observed; its origin is established afterwards. Attributing a cause in the certificate invites a dispute about that attribution rather than about the defect.
Do not prejudge the remedy. Requiring a specific repair may reduce the debate to whether that remedy is appropriate.
Date and sign it jointly. Under the Breyne Act only a written act signed by the parties proves acceptance.
An attached photograph is worth more than an adjective. It fixes the position at a date, which no wording replaces.
| Requirement | What it imposes | What it prevents |
|---|---|---|
| Locate precisely | The room, the wall, the element concerned | A general reservation with no identifiable object |
| Describe the finding | What is visible, not the supposed cause | An argument over attributing the cause |
| Do not prejudge the remedy | Leave the nature of the repair open | An argument over the adequacy of the remedy |
| Date and sign jointly | A writing signed by both parties | A challenge to the proof of acceptance |
What need not be reserved
Three categories escape the covering effect, and knowing that avoids needless anxiety. They concern hidden defects and serious faults.
Latent defects, undetectable on careful and thorough examination by a normally prudent person in the same situation. They appear in use and acceptance does not cover them.
Serious defects within ten-year liability. The regime being of public policy, the client cannot validly waive reliance on them, even if they were patent.
Contractual non-conformities not visually detectable, such as a performance not achieved, which follow from verification rather than visual examination.
That does not dispense with reserving what is visible. The boundary between patent and latent is arguable, and a written reservation removes the argument.
Obtaining lifting
Four steps, in this order.
Set a remedial period in the certificate, failing which performance remains open-ended.
Have the remedial work recorded jointly, rather than accepting confirmation by message.
Record the lifting in writing, with the date and identification of the reservation lifted.
Do not grant final acceptance before reservations are lifted. The contractor must remedy the defects notified before that step, which gives the client real leverage.
That leverage is their principal legitimate means of pressure, and losing it by granting premature final acceptance is a frequent error.
Where remedial work is disputed
Three options, from lightest to heaviest. They are open where a reservation is not lifted.
Written formal notice, fixing the date and creating a record.
Recourse to a technical third party to establish the finding, the architect already being present under their supervision duty.
Expert determination, judicial or amicable, where the dispute concerns the existence or the cause of the defect.
Withholding the guarantee or the balance may be leverage, but its use must comply with the contract, failing which it becomes a breach in itself.
What this means for a professional
Four rules.
Devote to acceptance the time it deserves, a rushed visit costing more than the time saved.
Write reservations with location, finding and date, without prejudging causes or remedies.
Set a remedial period in the certificate.
Do not grant final acceptance while reservations remain unlifted.
This article reflects the position of the rules at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.