In construction, you're constantly putting materials on other people's sites on tick: bricks, steel, flooring, plant, kit. If the money stops or someone goes bust, you naturally think: "I'll just go and get my stuff back."
Legally, that only works if:
- you've got a proper retention of title (RoT) clause in your contract or T&Cs, and
- the materials are still separate and identifiable -- not bolted into the building or mixed beyond recognition.
1. The basic law: when does title pass?
The Sale of Goods Act 1979 says property in goods passes when the parties intend it to pass -- not automatically on delivery.
That means:
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By default, in many sales, title passes on delivery -- once the goods are delivered, they're legally the buyer's, even if you haven't been paid yet.
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An RoT clause can change that by clearly saying: ownership stays with the seller until payment (or until other conditions are met).
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If the clause is properly incorporated and clear, you can sometimes treat unpaid goods still in the buyer's possession as yours and reclaim them, especially on insolvency.
On construction jobs, this is layered on top of the main contract's rules about when title in materials passes up the chain (JCT, NEC etc.).
2. What a retention of title clause actually does (and its types)
A retention of title / "Romalpa" clause basically says: "These goods are ours until you've paid for them."
Common flavours:
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Basic clause -- title in specified goods stays with the seller until those goods are paid in full.
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All-monies clause -- title stays with the seller until all sums owed by the buyer to that seller are paid, not just that batch.
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Proceeds/extended clauses -- try to give rights over goods after resale or over proceeds of sale; these get close to security/charge territory and are more complex and risky.
For construction suppliers, RoT clauses are usually in their standard terms or supply contracts -- but they only bite if the buyer actually agreed to those terms and they're clear.
3. Why RoT is hard in construction
On a building site, goods don't sit neatly in a warehouse with labels. They get used, fixed and mixed.
Courts and guidance highlight problems like:
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Loss of identity -- once cement, resin, paint, grout, aggregates etc. are incorporated into concrete, chipboard or other composites, they "lose their identity" and you can't realistically claim them back.
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Fixtures and fittings -- even if something can physically be unbolted (e.g. AC units, staircases, big plant), it may be legally treated as a fixture of the building/land once installed -- becoming part of the property, not yours.
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Stage payments and valuations -- main contracts often pay on the value of work done, not specific bags of gear. That makes it hard to prove which specific units are "unpaid" versus "paid" and so still "yours".
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Contract chain clashes -- your RoT clause with the main contractor can collide with clauses in the main contract saying title passes to the employer on delivery or payment, or when goods are listed and vested.
So: RoT is best for loose, clearly identifiable materials you can point at and say "those, over there, still on pallets, never paid for." Once they're in the building, your RoT rights usually die.
4. When RoT can still genuinely help you
Despite the problems, RoT can still be useful in a few common scenarios:
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Unfixed stock on site -- pallets of bricks, tiles, M&E kit, joinery, plant or modular items that are on site but clearly not incorporated yet.
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Materials in storage -- goods in a warehouse or yard awaiting delivery, where your RoT clause plus a proper stock record means you can stop shipment or reclaim.
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Buyer insolvency -- if a contractor goes under, a good RoT clause and quick action can keep you from being just another unsecured creditor -- especially for unused stock.
But you need to:
- act quickly when you smell trouble (late payments, insolvency whispers)
- be able to identify your goods
- have your RoT clause properly incorporated and clear enough to survive scrutiny.
Even then, you're negotiating with administrators, main contractors and owners, so it's never as simple as "turn up with a truck".
5. Practical habits: how to give yourself a fighting chance
If you want RoT to be more than just a line in your terms:
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Get the clause properly incorporated -- your RoT wording should be in your standard terms, clearly referenced in order acknowledgements, and accepted before or when the contract is formed, not buried in small print on the back of an invoice nobody read.
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Make the clause clear and workable -- basic or all-monies clauses drafted by someone who knows what they're doing; avoid over-fancy extended clauses if you don't understand the security/insolvency angles.
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Mark and record goods -- where possible, mark pallets or items, keep delivery notes and site records that show what was delivered where and when; that's what you'll need to prove identity.
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Match RoT to your risk -- use it aggressively for big-ticket, easily-identified items (plant, generators, specialist kit) rather than relying on it for every bag of sand.
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Act early on trouble -- if a buyer is wobbling or insolvent, notify your RoT claim quickly, ask for access to inspect and identify goods, and get legal help before you start removing anything.
And be honest with yourself: RoT is one tool for risk control. You still want solid credit checks, staged payments, deposits, parent guarantees, bonds and decent contract terms. RoT won't save a bad credit decision on its own.
Retention of title -- reality check
Before you start thinking "I'll just go and grab my materials back", run through this:
- Clause actually agreed? Your RoT wording is in the signed contract / accepted T&Cs, not just tiny print on old invoices.
- Goods still separate? The stuff you want back is loose and identifiable (pallets, kit, unfixed items) -- not poured, nailed, plastered or wired in.
- You can prove they're yours? Delivery notes, labels, stock records show those goods came from you and are still unpaid.
- Main contract doesn't already pass title up the chain on delivery/payment in a way that wipes you out.
- Buyer not yet in full meltdown on site? The earlier you move (before administrators and security get involved), the better your chances.
- You've taken advice before sending trucks. Marching on site and stripping materials without clearance can land you in more trouble than the unpaid invoice.
If you can't tick most of that, RoT is probably weak here -- lean harder on payment terms, credit control and security instead.
Disclaimer: SiteKiln gives you plain-English information, not legal advice. Talk to a solicitor before making big decisions on live disputes.
What to do next
- Check whether your standard terms or supply contract actually contain a clear retention of title clause -- and whether the buyer agreed to those terms.
- For big-ticket, easily identified items (plant, generators, specialist kit), make sure goods are marked, labelled and recorded on delivery notes.
- If a customer is wobbling on payments, notify your RoT claim early in writing and ask for access to inspect and identify your goods.
- Do not march on site and start removing materials without legal clearance -- that can land you in more trouble than the unpaid invoice.
- Use RoT alongside other risk controls: credit checks, staged payments, deposits, parent company guarantees and bonds.
Sources
- Sale of Goods Act 1979 -- https://www.legislation.gov.uk/ukpga/1979/54/contents
- Insolvency Act 1986 -- https://www.legislation.gov.uk/ukpga/1986/45/contents
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