Where materials are stored on site but the contractor or subcontractor cannot demonstrate good title to them, may the architect or engineer decline to include their value in an interim certificate?
Certifiers worried about the employer paying twice for materials sometimes want proof of title before certifying. The standard forms do not let them withhold certification on that ground.
No: the standard forms provide for payment of unfixed materials delivered to site without any condition that the contractor prove good title, so an architect or engineer cannot exclude on-site materials from an interim certificate solely because title cannot be proved, though the employer bears the risk of paying twice where a supplier holds an effective retention of title clause
No. The standard forms provide for payment of unfixed materials delivered to site without any condition that the contractor prove good title, so an architect or engineer cannot exclude on-site materials from an interim certificate solely because title cannot be proved. The ICE 6th and 7th Editions, clause 60(1)(b), JCT 2011, clause 4.16.1.2, and GC/Works/1, condition 48, all provide for payment of unfixed materials on site, none making proof of title a condition, and the Engineering and Construction Contract pays for the price of work done. An employer bears the risk of paying twice where a supplier holds an effective retention of title clause, as in Dawber Williamson Roofing Ltd v Humberside County Council, and Hendy Lennox v Grahame Puttick Ltd shows such a clause keeping ownership with the supplier until payment. A specially drafted clause could limit payment to materials the contractor owns, but it would be almost impossible to apply, and a retention of title clause ceases to bite once the materials are built into the structure. The certifier may warn the employer of the risk but may not withhold certification for want of proof of title.
| No title condition | The forms pay for unfixed on-site materials without proof of title |
| Cannot withhold | A certifier may not exclude on-site materials for want of proven title |
| Double-payment risk | The employer may pay twice where a supplier retains title |
| Hendy Lennox, Dawber | An effective retention of title clause; the employer paid twice |
| Built in | Retention of title ends once materials are incorporated in the works |
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