Suing for construction defects & construction process: Warranty, warranty claims and compensation for damages in Austria
General information about construction defect: What is actually a construction defect? - We Advise You Throughout Austria
Problems with building a house or buying an apartment are not uncommon and keep the courts regularly busy. The practical problem with building a house and the cause of many building defects is often the fact that many different contractors/tradesmen are working on a building site. The individual craftsmen or tradesmen must be perfectly interlocked in the individual construction phases in order to avoid construction defects.
Construction defects are insufficient conditions of a technical nature and are not construction work that is "contrary to approval". A building defect is therefore sufficiently the deviation of the actual state of a building from the required target state.
Construction defects usually involve a lot of money. The worst case is probably that the construction company goes bankrupt and leaves behind a half-finished or defective construction. In many cases, the claim for completion or rectification of defects is in fact no longer enforceable.
Tips for planning, contract conclusion and construction defects, preservation of evidence in case of construction defects, notification of defects
It is not uncommon for deficiencies to be found in construction supervision, which often means that individual errors made by individual tradesmen are often not detected or are detected too late, leading to subsequent problems. A mistake then inevitably leads to the next mistake or the next construction defect. If one does not have the necessary specialist knowledge oneself, it is recommended to assign a responsible person with the management and supervision of a building site.
If there is a botched construction or construction defects, the respective legal proceedings usually involve a lot of money and investing in a specialist right at the beginning is often a good investment to avoid construction defects and expensive legal proceedings. This obviously also applies to the legal review of all contracts. The contracts with the construction company, the responsible person / construction manager and the craftsmen's companies form the basis for the assessment of later claims against these companies. It makes little sense, for example, to commission a responsible construction manager for a construction site and to pay dearly if a large part of all possible liability claims against this construction manager are excluded or extremely limited in the underlying contract.
Check property developer or contracting party before signing the contract
In principle, it is advisable to check the contractual partner in any form each time a contract is concluded. For example, if you buy an apartment from a property developer, it can be very useful to check the creditworthiness of the developer. Although appropriate hedging instruments are usually available for new buildings in accordance with the property development law, the insolvency of a property developer represents always a considerable problem. If the property developer goes bankrupt during the construction phase, the remaining buyers have to take care of the completion.
In the event of a botched construction, keep a precise record of all construction defects in a construction diary
If the property is currently under construction, it is advisable to visit the building site regularly and keep a construction diary to document the construction progress and any defects. If you notice a construction defect already during the construction phase, this should be immediately and verifiably reported to the contractual partner.
If there are any construction defects, it is always important to have them documented accordingly. This means taking photos of the construction defects and, if necessary, securing other evidence (e.g. materials).
Furthermore, one should check the contractual basis for the provision of services and also determine which agreements are in place and which, for example, ÖNORMEN are applicable.
For construction defects: Note the difference between warranty and compensation
It is also important that even as a client and person affected by building defects, you know the difference between warranty and compensation.
Warranty means having to take responsibility for a defective performance and it is sufficient for a defect to be detected in the warranty. With the discovery of a defect within the warranty period, the claim for removal exists.
In principle, the general warranty law is regulated in §§ 922-933 ABGB and applies to all paid contracts.
A claim for damages is subject to certain conditions. Thus, a claim for damages exists if, among other things, in addition to a faulty service, the craftsman or construction company is also at fault. The advantage of the claim for damages is, among other things, that e.g. also the replacement of further disadvantages such as expenses or loss of earnings, expert costs etc. can be demanded.
Warranty for house purchase and building defects, definition of a building defect, examples of building defects
Construction defects are one of the frequent reasons for legal disputes. Due to the value of buildings, there are often high amounts in dispute, which means that such proceedings can also be very expensive. Furthermore, legal proceedings concerning building defects are almost always so-called expert proceedings. This means that experts are usually appointed by the competent court to assess the construction defects.
As already mentioned, the basic prerequisite for a warranty case is the existence of a defect. The term "defect" is always used when the required (contractually agreed) or usually assumed characteristics of the object or service are not present. A defect is therefore always equated with a deviation from the contractual agreement. On the one hand, there are insignificant or insubstantial defects (e.g. colour deviations and minor gap dimensions), which are simply to be accepted if they are within the tolerances or the ÖNORMEN.
Furthermore, a distinction must be made between a material defect and a defect of title. Material defects are all defects that physically adhere to an object. In the case of construction defects, for example, a construction defect on a facade or damage caused by moisture. A defect of title is deemed to exist if the purchaser was not provided with the legal position owed (e.g. unencumbered ownership).
Not every defect or impairment of a good or service is to be equated with a defect. In the case of remediable defects, there is a defect that can be easily remedied by the construction company by improvement. Furthermore, there are serious, unrectifiable defects which make the proper use of an object, a house, impossible. In the case of unrectifiable defects, it is often advisable to convert the property.
The most common construction defects are:
- Moisture damage of all kinds; e.g. moisture in the facade, roof or basement. Vapour barrier is leaking.
- In this respect, often related construction defects in the installations, water pipes or even the electrical system.
- Cracks in the walls or in the floor / screed or in windows or doors or subsidence.
- Construction defects in thermal insulation or sound insulation or insulation.
- The use of building materials contaminated with harmful substances or simply not approved building materials. The improper use of building materials.
Assertion of warranty claims and deadlines, claiming construction defects
In Austria, the 3-year warranty period generally applies to immovable objects such as houses, apartments etc. The 3-year warranty period begins with the takeover of the object. Within this period a warranty claim exists in any case.
Austrian law generally applies the principle that it is the responsibility of the transferee/purchaser of an object to prove that there is a defect and that the defect was already present at the time the object was transferred.
However, § 924 ABGB allows for a deviation in the first 6 months. If defects occur within the first 6 months, the burden of proof is reversed. This means that it is assumed that this specific construction defect was already present at the time of handover. This is a considerable advantage, especially for consumers, as the risk of litigation for such construction defects is much lower, as in this case the burden of proof does not lie with the house buyer or apartment buyer or consumer.
Particular caution is required when a house is bought second-hand by a private person. Warranty claims between private individuals can be contractually excluded. In these cases, it may therefore happen that even gross construction defects can no longer be asserted against the selling party.
Building Law in Private Law in Austria - We Advise You Throughout Austria
In terms of private law, building law often deals with issues relating to the construction of buildings and the settlement of disputes in this context. In this area of building law, we advise on the following questions:
- Contract review and contract drafting
- Advice for builders, building companies and contracting companies
- Clarification of disputes in connection with the construction of buildings and construction defect processes
- Litigation: Enforcement and defence of claims for damages and warranty claims due to construction defects
- Perpetuation of evidence procedure and judicial disputes
Your Specialists in the Field of Building Law - Attorney-at-Law Mag. Gamsjäger and Dr Wiesflecker
With Mag. Stefan Gamsjäger, Law Experts Attorneys have a proven expert in this field regarding the assessment of public building law issues, in particular building regulations, zoning and regional planning. Attorney-at-Law Mag. Gamsjäger has more than 10 years of experience as an administrative lawyer and deputy head of the building authority in a Tyrolean municipality and therefore, in addition to the completed administrative service examination for use group A, has the corresponding specialist knowledge in this important field.
Due to his many years of experience in renowned, internationally operating commercial law firms and his specialisation in the field of international contract law as well as civil law, Dr Hannes Wiesflecker has the appropriate specialist knowledge and many years of experience to advise you - both in and out of court - in matters of building law and to successfully enforce or defend claims.