The certificate my retention waits for has never been issued
The job is done, our defects are closed or nearly closed, and the release is still waiting on a certificate nobody has issued.
Updated: . By Jack Butler-Kettle, Construction Claims Consultant.
If releases have gone unrequested across several finished jobs, see what to do about retention on jobs you finished years ago.
What's happening?
Many subcontracts tie a retention release to a certificate, such as the certificate of practical completion or the certificate of making good defects. Someone else issues it, often under the main contract. So your release can sit for months while others argue about defects, making good, an application or a notice. Which event releases which part, and when, depends on your signed subcontract, not on what is normal in the trade.
Left alone, the money stays on your main contractor's ledger. Every month the paperwork gets harder to find and the people who knew the job move on. Where part of the retention has already fallen due, the time you have to recover it is already running. It runs from the date that part fell due, not from the day you notice.
The solution
Split the retention held into its releases. For each one, find the clause that sets the trigger and the certificate or event it waits for. Then check the date payment fell due and whether anything was paid. A release whose trigger has happened is money to ask for in your next application, with the trigger document attached. Do not assume a missing certificate means nothing is due, or that its condition can be ignored.
Retention Claim builds that record from your subcontract and payment paperwork, and writes the request in your name. Where the certificate or a defect is truly in dispute, or time is short, your solicitor advises on what it means for you. Retention Loss Prevention then stops the next release slipping the same way.
Example
Illustrative example. The scenario and figures are invented.
The facts
A subcontractor finished its package 2 years ago, and £38,000 of retention still sits on the main contractor's ledger. The subcontract releases half on practical completion of the main contract works and half on the certificate of making good defects.
What happens
- The subcontractor splits the £38,000 into its two releases and sets each against its evidence.
- The main contractor's own email, sent 14 months ago, confirmed practical completion. So the first £19,000 has a trigger, a due date under the subcontract's payment terms and a payment history showing nothing paid.
- The second £19,000 waits on a certificate that has not been issued, because two defects listed against a different trade are still open.
- A dated schedule sets out each release: the clause in its own words, the trigger document, the due date, the certificate and the defects.
- The subcontractor sends the schedule to the main contractor, asks for the first £19,000 and asks for a written statement of where the making good stands.
- The subcontractor asks its solicitor what the missing certificate means when the open defects belong to another trade.
The retention in figures
| Item | Amount |
|---|---|
| Retention held on the ledger | £38,000 |
| First release, triggered by practical completion | £19,000 |
| Second release, awaiting the certificate of making good | £19,000 |
The outcome
The first £19,000 is paid the following month. The solicitor's answer on the missing certificate shapes the next letter about the second £19,000.