Construction expertise: how to prepare for it

Construction expertise usually comes up unexpectedly: a dispute with a contractor over the quality of repairs, cracks in the wall of a neighbouring building, a client's refusal to accept the work, or a claim concerning the estimate. By the time the expertise is ordered by a court or commissioned by a party, a person has already lost some of the documents, and has formulated some of the questions in such a way that the expert cannot answer them. Mistakes at this stage are not always correctable later — the report is built on what was submitted.

In this article you will learn which types of construction expertise exist, who is entitled to conduct it, what exactly the expert examines, how the inspection of the object is carried out and how the questions are formed. We separately cover the contents of the report, the procedure for challenging it and the typical mistakes in preparation. The material is intended for a private client and an entrepreneur who are going through this procedure for the first time and want to understand what will happen and which documents to prepare in advance.

Construction expertise: what it is and when it is ordered

Construction expertise is the examination of a capital construction object, its structures, utility networks, and design, as-built and contractual documentation, carried out by a specialist with relevant training. The object built or under repair, the materials used and the records of the work performed are studied. The result is a report describing the defects, their causes and the scope.

The expert's report becomes evidence in civil, administrative or criminal proceedings. In Kazakhstan, forensic expertise is conducted by the Centre for Forensic Expertise of the Ministry of Justice of the Republic of Kazakhstan and by licensed forensic experts, and the procedure for ordering and conducting it is established by the Law of the Republic of Kazakhstan on Forensic Expert Activity. An out-of-court assessment is commissioned to evaluate the condition of the object before going to court or for pre-trial settlement.

Types of construction expertise: which one the court will order or a party will commission

The distinction starts with who initiates the examination. A pre-trial expert examination is commissioned by a party before going to court: it records the condition of the object, the scope and quality of the works, and the causes of defects. A court-ordered examination is appointed by a court ruling on a party's motion or on the court's own initiative and is conducted within civil or administrative proceedings. A report obtained outside the proceedings is assessed by the court alongside other evidence, but it does not replace a procedural expert examination.

Several distinct types are distinguished by subject matter. A construction and technical expert examination answers questions about the quality of construction, compliance of the works with the design, the causes of emergency conditions and the possibility of further operation. A valuation expert examination determines the market value of the object, while an expert examination of design documentation verifies the compliance of the design with regulatory requirements and the source data. The choice of type depends on which fact needs to be confirmed: the scope and quality of the works, the value, or the correctness of the design itself.

• Construction and technical — quality of works, defects, causes of their occurrence.
• Valuation — market value of the object or of the works performed.
• Expert examination of design documentation — compliance of the design with the norms and the brief.
• Pre-trial — commissioned by a party before the proceedings.
• Court-ordered — by a court ruling, carried out by authorised experts.

The specific type is determined by the issue that needs to be resolved.

Who conducts construction expertise: the expert, the expert organisation and their permits

Construction expertise is conducted by an expert — an individual with a higher technical or construction education and experience in the specialty. A forensic expert is entered in the State Register of Forensic Experts maintained by the Ministry of Justice of the Republic of Kazakhstan and holds a qualification certificate for the right to conduct this type of expertise. The conclusion of a person without such a permit is easy to challenge.

Forensic expertise in Kazakhstan is conducted by the Centre for Forensic Expertise of the Ministry of Justice of the Republic of Kazakhstan and licensed forensic experts; the procedure is governed by the Law of the Republic of Kazakhstan on Forensic Expert Activity. A non-state expert works under a licence for forensic expert activity, so it is checked whether it has been issued and for which type of expertise. A conclusion outside the licence is easy to challenge.

• the expert's higher education in the relevant field and experience
• a qualification certificate for the type of construction expertise
• the expert's inclusion in the register of forensic experts of Kazakhstan
• the non-state expert's licence for forensic expert activity
• absence of family, employment and other connections with the parties to the dispute
• absence of another role in the same case: representative, witness

What construction expertise examines: the object, structures, documents

The subject of construction expertise is the range of issues that the expert resolves on the basis of the case materials and during inspection of the object. The expert examines only what is specified in the court ruling or the decision of the authority and may not go beyond these limits on his own initiative.

What the expertise examines depends on the dispute: the quality of structures, compliance with design documentation and construction norms, the causes of deformations and cracks. Load-bearing and enclosing structures are inspected — foundation, walls, floors, roof, utility networks: water supply, heating, electrical wiring, ventilation. The quality of materials, their grade, and compliance with certificates and the contract are assessed.

• load-bearing and enclosing structures: foundation, walls, floors, columns, roof
• utility networks: water supply, sewerage, heating, ventilation, electricity supply
• quality of materials and products, their compliance with the design and standards
• compliance of the works performed with design documentation and construction norms
• volume of works actually performed according to measurements and as-built documentation
• causes of defects: cracks, subsidence, leaks, freezing, destruction of finishes

What questions to put to construction expertise

The questions for construction expertise determine which circumstances will be established and how they will affect the outcome of the case. They are formulated before filing a motion to appoint expertise, so that the court can see which facts require special knowledge.

Before formulating the questions, the design and estimate documentation and the acts are studied. The questions of construction and technical expertise concern the technical side: compliance with norms, causes of defects, methods of remediation, volume and cost of works. The expert does not decide legal questions — of guilt, non-performance of the contract, recovery — they are left to the court.

• Do the works performed comply with the design documentation and construction norms?
• What are the causes of the defects and are they of a construction or operational nature?
• Is it possible to remedy the identified defects, and what works are required for this?
• What is the scope and cost of the works to remedy the defects?
• Is the object suitable for further operation after the defects are remedied?

An expert examination answers only the questions put to it and works only with the materials provided to it — correcting this after the report is issued is almost impossible.

Documents for a construction expert examination: what to collect before it begins

Before the expert examination is appointed, the parties collect the source data: the expert studies the object and the documents recording its parameters, cost and history of works. In a court-ordered expert examination, the report is based on the case materials, and the expert does not fill in gaps but notes them as an obstacle to conclusions.

The set of documents for a construction expert examination includes title documents for the object and the land, design and working documentation, the construction contract with appendices, estimates, acts, as-built documentation, and correspondence between the parties. Without design documentation, it is impossible to verify that the works comply with the design, and the examination narrows down to the actual characteristics of the structures. Without estimates and acts, the expert cannot determine the scope and cost of the works by calculation, and the conclusions will include a caveat about the incompleteness of the source data.

• title documents for the object and the land plot
• design and working documentation, including amendments and approvals
• the construction contract, supplementary agreements and appendices
• estimates, calculations and commercial offers
• acts of completed works, as-built and technical documentation
• correspondence between the parties, notifications, claims and site work logs

Inspection of the object within a construction expert examination: how it is carried out and what is recorded

A construction expert examination begins the inspection by notifying the parties: the expert or the court notifies the client, the contractor and other participants in the dispute of the date and place of the on-site survey. The absence of a notified participant does not prevent the inspection but is recorded in the protocol.

At the object, the expert compares the structures actually built with the design documentation, the estimate and the acts, and takes measurements of geometry, layer thickness, elevations and slopes. Photographic recording is carried out with reference to parts of the building and with a scale ruler in the frame, and video recording where necessary. Sampling of materials (concrete, mortar, insulation) is documented by acts and marked for laboratory testing. All actions are reflected in the inspection protocol, which is signed by the expert and those present; the parties' comments are entered in the same document. The protocol with photographic tables and measurement results becomes part of the report.

• notifying the participants of the date, time and place of the inspection
• granting the expert access to the object and ensuring access to the structures
• visual inspection, measurement and instrumental readings
• photo and video recording with reference to axes and premises
• taking samples and specimens for laboratory testing
• drawing up and signing the inspection protocol with the parties' comments

Construction expert examination and the participants in the process: the role of the parties, timeframes and payment

In construction cases, a court-ordered expert examination is appointed by the court. The participants fall into three groups: the court, which formulates the questions and issues the ruling; the parties to the dispute; and the expert or the expert organisation. The court does not substitute for the expert and does not decide matters of specialised knowledge, but assesses the report alongside other evidence.

Duties: the court appoints the expert examination and explains the consequences of evading participation; the expert conducts the examination and gives a report; the parties ensure access to the object and provide documents. The timeframes are set by the court in its ruling, taking into account the scope of the examination and the nature of the object; the expert may apply for an extension if materials are insufficient. Payment is made by the party that applied for the examination, or it is distributed between the parties, and following the outcome of the case the costs are imposed on the losing party in proportion to the claims upheld.

Construction expert report: what it contains and how to challenge it

A construction expert report consists of an introductory, a research and a concluding part. The introductory part states the body that ordered the examination, information about the expert, the object and the questions put. The research part describes the inspection, methods and calculations, while the findings are formulated separately for each question. Photographic materials, diagrams, inspection reports, schedules and calculations serve as appendices.

Findings are divided into categorical and probable, and by form into affirmative and negative. A categorical finding relies on sufficient research data, while a probable one does not exclude other explanations. It is the findings that determine which circumstances the court will accept as proven, so their wording is checked with particular care.

• introductory part: body, expert, object, questions
• research part: inspection, methods, calculations
• findings on each question with an assessment of how categorical they are
• appendices: photos, diagrams, inspection reports, schedules
• review: analysis of the methodology and completeness of the research
• summoning the expert to court for explanations on the findings

Typical mistakes when preparing for a construction expert examination

Mistakes in construction expert examinations are most often linked to the preparatory stage. The court orders the examination on a party's motion: the party proposes questions and submits materials, while the court determines the final set of questions. If the documents are not organised, the expert spends time searching for information, and the findings may turn out to be incomplete.

Preparation begins with checking access to the object. If the expert cannot get into the premises or onto the territory, the examination is carried out on the documents, which reduces its evidentiary value. The party creating obstacles risks receiving findings that are not in its favour.

• Unprepared documents: no design, no reports, no as-built documentation.
• No access to the object: the expert cannot inspect the structures.
• Wrong questions: legal wording instead of construction and technical ones.
• Attempts to influence the expert: pressure or an offer of payment.
• Ignoring the right to challenge: a late reaction to the expert's interest in the outcome.

Construction expert examination and other types of research: what to compare

A construction expert examination answers questions about the quality, volume and cost of works, while a valuation answers questions about the market value of the object. A valuer works with a finished object and its price, while a construction expert works with the technology, materials and compliance with the design. In disputes over defects, unfinished works or inflated volumes, a construction examination is sufficient.

Related types of examination are brought in when the subject of the dispute goes beyond construction norms. A fire-technical examination establishes the cause of the fire and compliance with fire safety requirements, while a sanitary-epidemiological one establishes compliance with sanitary rules. Handwriting examination is needed when challenging a signature in reports and contracts.

• Construction expert examination: quality, volume, cost of works, compliance with the design and construction norms of the Republic of Kazakhstan (SN RK, SP RK).
• Valuation: market value of the object, damage in monetary terms.
• Fire-technical: cause of the fire, compliance with fire safety norms.
• Sanitary-epidemiological: compliance with sanitary rules and standards.
• Handwriting: authenticity of the signature and handwritten entries in documents.
• Comprehensive: combines questions from different fields and is assigned to several experts.

A comprehensive examination is ordered when a question requires knowledge from several types of examination at the same time.