Notes · Completion · taking over
Possession, or just access?
The Employer occupies the works before they're finished. If that is taking possession, practical completion is deemed — retention releases, risk passes, and the liquidated damages stop. If it's merely access, nothing changes and the damages keep running. A fine line, and a decisive one.
Possession, or just access?
Taking-over — practical completion — is a hinge moment. It releases retention, passes responsibility for the works (damage, health and safety) to the Employer, starts the Defects Notification Period, and stops (or reduces) the liquidated damages. So when the Employer moves in before the works are finished, everything turns on one question: has it taken possession, or merely been given access?
Possession deems completion
In Skanska Corporation v Anglo-Amsterdam Corporation(2002), the tenant moved into the whole building to begin its fit-out while the contractor was still finishing snags — notably the air-conditioning wasn’t working. The court held that taking possession deems practical completion for the part taken over, and responsibility passes to the Employer — even thoughthe strict contractual definition of completion had not been met. “Deemed” means it is treated as having happened even if, factually, it hasn’t: the judge observed it would apply even if the building had no roof. So the damages could not run for the possessed period.
But access is not possession
The mirror case, decided by the same judge, is Impresa Castelli v Cola Holdings(2002). There the Employer’s presence was merely gaining access — not taking partial possession — so completion was notdeemed, and the £1.2m of liquidated damages stood. Access lets the Employer onto the site; it does not stop the clock. The line between the two is fact-sensitive, and decisive.
The FIDIC point
FIDIC frames the same distinction in Clause 10. Sub-Clause 10.2 (Taking Over Parts) provides that if the Employer uses or occupies a part of the Works, that part is deemed to have been taken over from that date: risk in it passes to the Employer, its Defects Notification Period begins, and the delay damages are reduced in proportionto the value of the part taken over. FIDIC also keeps “taking over” distinct from the Employer simply being given access. So under FIDIC, ask the same question the courts did: has the Employer taken over under 10.2, or merely been let in?
Taking possession deems completion — and stops the clock on the damages. Mere access does neither. Which one actually happened decides whether the liquidated damages keep running.