Soft landings or a bumpy touch down?

Most standard forms of construction contract contain provisions whereby a small value of the Works is retained by an employer known as 'retention money'. The idea of retention money is to provide funds for Employers to remedy defective work should the contractor refuse or fail to carry out remedial works on a construction project. Most standard forms of construction contract contain requirements that an employer holds retention money on trust for contractors through the opening of a separate bank account for this purpose. Despite specific conditions imposed on employers there are instances where conditions have been ignored which have resulted in complex technical legal issues to be decided in the courts involving the law of equity and trusts. Until relatively recently in spite of the controversies surrounding retention money, the construction industry had to reluctantly accept the situation due to a lack of alternatives. Now, the UK based Building Services Research and Information Association (BSRIA), encouraged by Government, have developed a new technique known as 'Soft Landings' (SL) which can be used as an alternative to retention. This paper explores the concept of SL in construction through a legal lens which could provide an important future strategic direction for clients and others involved in the modern construction industry. Initial findings are that whilst SL has not been greeted with universal acclaim within the construction industry there is sufficient interest to justify the use of SL as an alternative to the use of retention.