Clause 60.1(15) makes it a compensation event when part of the works is taken over, and certified, while Completion and the Completion Date are both still ahead. So when a Client starts using a finished area early, the Contractor gets to price the effect of working around it.
The entry is the same in NEC3 and NEC4 ECC. It works with Completion and clause 35: under 35.2, the Client is free to start using part of the works before the Completion certificate, and doing so generally counts as taking it over.
What triggers it
- The Client starts to use a part of the works before Completion is certified. Clause 35.2 says this is a take over, unless the use is for a reason the Scope states or to suit the Contractor's way of working.
- The Project Manager certifies it. Clause 35.3 requires a certificate of the date and extent, within one week of that date.
- It's before both dates. Completion and the Completion Date must both still be in the future.
| Situation | Event? |
|---|---|
| Taken over before Completion, with the Completion Date still ahead | Yes |
| Contractor is late. Completion Date has passed, and the Client moves in to part of the works | No |
| The Scope already says the Client occupies Block A in month 8 | Not a take over under 35.2, so no event by this route |
| Contractor asks the Client to use a road early, to suit its own logistics | Not a take over, so no event by this route |
Where parts of the job are meant to be finished at different times, sectional completion under Option X5 is the planned way to do it. This entry covers the unplanned version.
How it is usually evidenced
- The record of first use: who moved in, on what date and into which area.
- The take-over certificate and its marked-up plan.
- The Scope and Accepted Programme, to rule out planned use.
- A condition survey at take over. It protects both sides on later damage.
- Records of changes to the way the Contractor had to work.
Worked example
A fictional retail park on Option A, with illustrative figures. A store's tenant is desperate to open before the holidays, and the Client lets it use the northern car park from 1 November. The Contractor is still surfacing the southern car park and completing the landscaping, and the Completion Date is 15 January. The Project Manager certifies take over of the northern car park on 5 November and notifies a compensation event with the certificate.
| Effect | Defined Cost |
|---|---|
| Extra traffic segregation and banksmen, 10 weeks | £14,000 |
| Night working on surfacing near the store's entrance | £6,000 |
| Rerouted deliveries and haul road | £3,800 |
| Less maintenance and security no longer needed in the taken-over area | (£1,800) |
| Subtotal | £22,000 |
| Fee at an illustrative 10% | £2,200 |
| Change to the Prices | £24,200 |
The slower working pushes planned Completion back four days, so the Completion Date moves four days. A saving offsets the total, as the assessment looks at the overall effect on Defined Cost, but remember that a net saving wouldn't usually reduce the Prices here.
Other consequences of take over
- Risk moves. Loss of or damage to a part taken over generally becomes one of the Client's liabilities, with exceptions for Defects that existed at take over, earlier events and the Contractor's later activities.
- Delay damages reduce. Under Option X7, X7.3 reduces them from the date of take over, in proportion to the benefit of the part taken over.
- Defects still get corrected. The Contractor still has to correct Defects, so plan access with the occupier. Early occupation can make correcting them harder, which should be reflected in the assessment if it's a real effect.
How it is assessed
The event arises from a certificate, so the Project Manager should notify it with the certificate (clause 61.1). The dividing date is the certificate's date. The effects tend to be access restrictions, slower working and additional supervision, and the usual assessment rules apply.
What people get wrong
- Using without certifying. This is the classic one. The Client moves in, nobody certifies, and the event, the risk transfer and the reduction in damages are all left unclear. Contractors should write to the Project Manager the day use starts, and quote 35.3. If the certificate doesn't arrive, notify under 61.3.
- Calling use "temporary" or a "trial". The contract asks whether the Client has begun to use the part, unless one of the exceptions applies. A label doesn't decide it.
- Vague extents. "Part of the car park" isn't good enough. Mark it on a plan.
- No condition record. Without one, damage after take over turns into a dispute.
- Forgetting it costs the Client money. Early take over can suit everyone, but it isn't free, and the Project Manager should warn the Client about this before it moves in. It also doesn't change the defects date, which the contract fixes separately.
Related guides
- NEC Compensation Events: The Complete Guide
- Compensation Event: Materials or Facilities for Tests
- Compensation Event: A Corrected Assumption
- Compensation Event: Client Breach of Contract
- Compensation Event: Weather
- Compensation Event: A Client Liability Event
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