When a job runs late, two questions decide what you get: whose fault was the delay, and what does your contract say about it. Those two answers determine whether you get more time, more money, both, or nothing, and whether you owe the other side for the lost days. A delay you caused can cost you liquidated damages. A delay the owner caused should get you time and money, unless a "no-damages-for-delay" clause quietly took the money half away. Delays are one of the most fought-over things in construction, so here is how the rules actually sort out.
The three kinds of delay
Construction law sorts every delay into one of three buckets, and the bucket decides your remedy:
- Excusable, non-compensable. Caused by neither side: severe weather, acts of God, things outside anyone's control. You get a time extension but no money. Your remedy is a later finish date, not a bigger check.
- Excusable, compensable. Caused by the owner or someone the owner is responsible for: late drawings, late owner-furnished equipment, owner-directed changes, access problems. You get time and money, meaning an extension plus recovery of things like extended overhead, idle equipment, and cost escalation.
- Non-excusable. Caused by you: your crew, your subs, your sequencing. You get no time and no money, and you may owe the owner liquidated damages for finishing late.
The whole fight in most delay claims is which bucket applies, because that is where the money is.
Concurrent delay: when both sides are late at once
Concurrent delay is when both parties contribute to the same slice of lost time, and it is one of the most litigated corners of construction law. The general pattern courts follow: when your own delay overlaps with an owner delay for the same period, you usually still get the time extension, but you often cannot recover the money for that overlapping period. In other words, an owner delay running at the same time as your own delay tends to get you an excused finish date but not extended overhead for those days. The lesson is practical: keep clean, dated records of exactly what caused each delay, because if you cannot untangle your delay from theirs, you lose the money half of the claim.
No-damages-for-delay: the clause that takes the money away
A no-damages-for-delay clause (NDD) says that if the work is delayed, your only remedy is a time extension, never money, even when the delay was the owner's fault. It converts an excusable-compensable delay into a time-only remedy. On a job where an owner's late decisions cost you months of extended overhead and idle crews, an NDD clause can mean you swallow all of it and get nothing but a new completion date.
These clauses are generally enforceable on private contracts, but courts recognize common-law exceptions and will often refuse to enforce an NDD clause where the delay:
- Was not the kind the parties contemplated when they signed.
- Amounted to abandonment of the contract.
- Was caused by the owner's bad faith, fraud, or active interference.
- Was so unreasonably long it amounted to an intentional breach.
So an NDD clause is strong but not bulletproof. If an owner actively sabotaged your schedule or the delay was wildly beyond anything anyone imagined, the clause may not hold.
Some states void no-damages-for-delay clauses, mostly on public work
Several states have gone past the common-law exceptions and passed statutes that void or limit NDD clauses, most commonly on public and government contracts, and in some states on subcontractor delay-damage rights. In those states, an NDD clause on the covered kind of work is simply unenforceable, and you keep your right to delay money despite the clause.
Which states do this, whether it applies to private or only public work, and whether it reaches subcontracts is entirely a state-by-state question. Do not assume your state voids NDD clauses, and do not assume it enforces them. Get the actual rule from Working in Your State before you sign a contract with an NDD clause or before you decide a delay claim is dead because of one.
Liquidated damages: the delay clock that runs against you
Delay clauses do not only threaten the owner's schedule, they threaten your wallet when you are the one who runs late. A liquidated-damages clause sets a fixed dollar amount you owe the owner for each day you finish past the deadline, agreed in advance so nobody has to prove actual losses. If you are behind through your own fault (non-excusable delay), those daily charges add up fast and get deducted straight from your payments. That is why documenting excusable delay matters even when you are the one who is late: every day you can prove was weather or an owner-caused problem is a day the liquidated-damages clock should not run.
How to protect a delay claim
- Document delays in real time, dated, with the cause, who was responsible, and the impact on the schedule. A contemporaneous record beats a reconstructed story every time.
- Give timely written notice of any delay and any claim for extra time or money. Delay claims live and die on notice deadlines. See the notice-and-cure guide.
- Track your delay costs separately: extended overhead, idle equipment, escalation, so you can prove the money, not just the time.
- Read the delay and liquidated-damages clauses before you sign, and find out whether the contract has an NDD clause and whether your state limits it.
Common questions
What is a no-damages-for-delay clause?
It is a contract clause that limits your remedy for a delay to a time extension only, with no money, even when the delay was caused by the owner. It converts what would be a compensable delay into a time-only remedy, so you can lose months of extended overhead and idle-crew costs and get nothing but a later finish date. These clauses are generally enforceable on private work but subject to common-law exceptions, and some states void them by statute, mostly on public contracts.
Can I get paid for a delay that wasn't my fault?
It depends on who caused it and what your contract says. A delay caused by the owner is normally excusable and compensable, meaning you get a time extension plus money like extended overhead; a delay caused by neither side gets you time but no money. But a no-damages-for-delay clause can take the money half away even for an owner-caused delay, unless your state limits that clause or a common-law exception applies. Document the cause in real time and check your contract and Working in Your State.
What is concurrent delay?
Concurrent delay is when both you and the owner contribute to the same period of lost time, and it is one of the most litigated issues in construction. Courts generally still grant a time extension for concurrent delay, but they often deny the money for the overlapping period, because you cannot separate your delay from theirs. The practical takeaway is to keep clean, dated records of what caused each delay, so an owner-caused delay is not tangled up with one of your own and you can still recover the money half.
Are no-damages-for-delay clauses enforceable?
On private contracts they are generally enforceable, but courts refuse to enforce them where the delay was uncontemplated, amounted to abandonment, or was caused by the owner's bad faith or active interference, and several states void them by statute, mostly on public work. Whether your state limits or bans NDD clauses, and whether that covers private work and subcontracts, is a state-by-state question. Do not assume the clause is dead or alive, confirm your state's rule in Working in Your State before you rely on it either way.
The honest bit
- Which states void or limit no-damages-for-delay clauses, and whether the limit covers private work, public work, or subcontracts, is entirely state-specific. Route the state list to Working in Your State.
- Liquidated-damages amounts are set by each contract, not by any national figure. Read your contract for the daily rate and the completion deadline it runs from.
- This is general guidance, not legal advice. Delay claims are document-heavy and technical, and the money can be large. For a serious delay dispute, a construction attorney and often a scheduling expert are worth the cost.
Know someone who needs this?
Keep reading
Templates you might need
Was this guide useful?
Didn't find what you were looking for?
Spotted something wrong or out of date? Email us at hello@kilnguides.co.uk.
In crisis? 988 Suicide & Crisis Lifeline 988 ·