Détenir la retention money en trust sous le Construction Contracts Act

Take the retention terms off the subcontract and record them where the people who compute payments can read them: the percentage, the maximum the contract caps retention at, what event releases the first half, what event releases the balance, and the date the contract was signed or last renewed. Record as well whether this is a commercial construction contract, because the retentions regime reaches those and not a residential occupier's own contract.

Pourquoi: The signature date decides which version of the rules applies, and that is not a detail. Contracts entered into or renewed from 5 October 2023 sit under the automatic trust and the reporting duty the amendment introduced, while older ones sit under the lighter 2017 regime. A company running one process for a book of contracts written under both is complying with whichever one it happened to build its spreadsheet around.

When you schedule a subcontractor's payment, take the retention as a separate deduction line carrying the period it relates to and the cumulative amount now held, and let the net figure fall out of it. Stop deducting once the cumulative total reaches the contract cap rather than continuing at the percentage.

Pourquoi: A retention that exists only as the difference between two totals cannot be traced, and the whole regime rests on the money being identifiable as somebody else's. It is also the point at which the trust starts, so the day this line is created is the day the duties attach. A payer who cannot say which line created the trust is a payer who cannot show when the reporting clock began.

Post each withheld amount to the retention ledger against the subcontractor it belongs to, and record which bank account it is held in or which complying instrument covers it. The account has to be used only for retention money, and the ledger has to name the party, the amount, the contract and the date it was withheld.

Pourquoi: The 2023 amendment makes this money trust money automatically, which means it is outside the reach of your own creditors if the company fails, but only to the extent it can be identified. Money mixed into the working account and spent as float is money a liquidator will treat as yours, and the subcontractors it belonged to join the queue with everyone else. Using retention money as working capital is also an offence in itself.

Keep the bank statement for the retention account for every period alongside the ledger it should agree with, and file the complying instrument itself where retention is covered by a guarantee or a policy rather than by cash. Keep the instrument's expiry date visible, because an expired guarantee leaves the money uncovered while the ledger still says it is fine.

Pourquoi: A ledger is an assertion and a bank statement is evidence, and the difference matters on the one day anyone asks. The regulator, an insolvency practitioner and a subcontractor's solicitor all ask the same question in the same order: what is held, where is it, and show me. Answering it takes minutes if the two documents were filed together each month and weeks if they were not.

Send each subcontractor a report of the retention money held from them: the amount, the date it was withheld, where it is held or what instrument covers it, and how the total moved since the last report. Do it as soon as practicable after retention is first withheld from them and then on a regular cycle of no more than three months, and keep the sent copy against the contract.

Pourquoi: This duty is the part of the regime most often missed, because nothing on site stops when it is skipped and no subcontractor chases a report they have never seen. It is still an obligation with an offence behind it, and the reports are also the cheapest defence there is: a party who has been told the same figure every quarter does not open the final account arguing about what was held.

Hold each subcontractor's retention against the defects liability period it is released by: the first half at practical completion and the balance when the period ends. Where a release is being held back, record the defect it is held against, who owes the fix and by when, rather than letting the date pass in silence.

Pourquoi: The release trigger is not a date somebody typed in, it is the end of a period that the defects record already tracks, so keeping the two apart is how a retention gets held for a year after the obligation it secured expired. A held release with a named defect against it is a commercial position. A held release with nothing against it is trust money that should have gone back, and a subcontractor can put that straight into adjudication.

Read the total the ledger says is held against the balance the account actually carries, across every project at once, and name the difference if there is one. Do it on the same day each period rather than when somebody asks.

Pourquoi: A shortfall between the ledger and the account is the one number in this whole case that cannot be argued about, and it grows quietly: a release paid from the working account, a deduction never banked, a project closed without its balance moving. Found in the month it happens it is a transfer. Found at liquidation it is the evidence in somebody else's case.