Decennial Liability in UAE Construction Law: Protecting Property Owners and Ensuring Accountability

Decennial liability is a significant aspect of construction law in the United Arab Emirates (UAE), designed to protect property owners from structural defects in buildings and other construction projects. This legal concept imposes a ten-year liability period on contractors and builders, ensuring that any defects or failures in construction are addressed within a specific timeframe. Understanding decennial liability is crucial for contractors, property owners, and investors in the UAE's booming construction industry.

 

The Legal Framework

 

Primarily Decennial liability in the UAE is primarily governed by Federal Law No. 5 On the Civil Transactions Law of the UAE (“Civil Code”), enshrined within; Article 880, which is considered as the definitive starting point of the decennial liability within UAE’s Civil Code. 

With the first subsection focusing on affixing joint liability “for every defect endangering the solidity and security of the building” on the “engineer” and the “contractor, under his supervision” for “a period of ten years or a longer agreed period”. Indemnifying “the master of work for total or partial destruction of these buildings or fixed constructions”.

The second subsection effectively communicates the objective of this provision being the protection of the owner interests where even if the defect “is due to a defect in the ground itself, and even if the master authorized the erection of the defective buildings or fixed constructions” this “this obligation to indemnify shall remain in effect”. 

With the third subsection establishing the time limit being 10-years beginning from the “delivery of the work”.

 

Key Provisions

 

Duration of Liability: As mentioned above, architects, contractors and engineers are liable for any defects affecting the structure of a building for ten years or a longer agreed period from the date of handover. While this applies to both residential and commercial properties per the limit set by Article 883 wherein, “Court action on the warranty may not be heard after three years from the occurrence of the destruction or the discovery of the defect.”

Scope of Liability: The liability covers significant structural issues that may compromise the safety and stability of a building. These can include faults in design, construction, or the materials used. Additionally, these faults in design, construction, etc., warranting decennial liability have been termed as trigger events by the UAE Courts, events resulting in ‘partial or total structural collapse’ and any ‘defects threatening the stability or safety of a structure’

 

Exclusions: It is important to note that decennial liability does not cover minor defects or issues that do not affect the overall safety and stability of the structure. Furthermore, if a defect arises from improper maintenance by the owner or third parties, the contractors, consultants and engineers involved may not be held liable. This exception also extends to external factors and natural disasters beyond the purview of the contractor or consultants, granted they can satisfy the burden of proof to qualify as such. 

 

Implications for Stakeholders

 

• For Contractors and Builders:

Contractors must ensure that they adhere to high standards of construction to avoid potential liabilities. Implementing quality control measures, using reliable materials, and following best practices can mitigate the risk of defects. Additionally, contractors should consider including clauses in their contracts that outline the scope of their responsibilities and limitations of liability.

 

• For Property Owners

 

Property owners benefit from decennial liability as it provides a safety net against potential structural defects. It is advisable for property owners to conduct thorough inspections upon handover and document any defects. If defects are identified, owners should notify the contractor promptly to initiate repairs within the ten-year liability period.

 

• For Investors

 

Investors in the UAE’s real estate market should be aware of decennial liability when evaluating properties. Understanding the implications of this liability can influence investment decisions, particularly regarding the reputation and reliability of the contractors involved in a project.

Mitigating circumstances

While no construction contract may directly waive, exclude or limit decennial liability under UAE law, as per public policy. Such liability may be mitigated by way of indemnities, namely insurance. With countries such as France and Egypt mandating the contractors to procure insurance as per their country codes. The only caveat here being that such insurance is rarely created for the sole purpose of addressing decennial liability and in jurisdiction where it is present it is heavily regulated by that country’s law. 

Hence, as of now there does not seem to be a standard scheme to insure project against decennial liability, and even if there were it is hypothesized that such a product would not be commercially viable as it would only be relevant to the most complex projects. 

 

Enforcement and Dispute Resolution

Disputes arising from decennial liability can be complex. In the UAE, these disputes may be addressed through:

 

• Negotiation: Direct negotiations between the contractor and property owner can often lead to amicable resolutions.

 

• Mediation: Engaging a mediator can help facilitate discussions and find mutually acceptable solutions.

 

• Arbitration and Litigation: If disputes cannot be resolved through negotiation or mediation, parties may resort to arbitration or court proceedings. The UAE has a well-established legal framework for handling construction disputes, including specialized construction courts.

In terms of Compensation

As based on precedent, if presented with a claim against a contractor and a consultant the Court is likely to allocate liability on a pro rata basis as per their contributions to the defect while taking into consideration the severity of the fault or defect as well as each party’s individual connection to said fault.

Conclusion

Decennial liability serves as a crucial mechanism in the UAE’s construction landscape, providing essential protections for property owners while actively holding contractors responsible for their works one year from the date of the preliminary handover and passively for 10 years following the complete handover.

As the UAE continues to develop its infrastructure and real estate sector, understanding and navigating decennial liability will remain vital for all stakeholders involved. By prioritizing quality construction and clear communication, parties can effectively manage their responsibilities and protect their interests in this dynamic market.

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