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What is a construction defect?
It all sounds so simple: when a contract is signed for the construction of a house, a contractor undertakes to carry out the building work. The contract is referred to as the works contract. Your house is the work that forms the object of this contract. If the result of the construction work does not correspond to the contractual agreement, a construction defect exists – as set out in Article 367 para. 1 of the Swiss Code of Obligations. And the list of potential anomalies is long: from cracks in the plaster and masonry or inadequate sealing in the basement to an incorrectly dimensioned heating system or a faulty electrical installation.
What is a hidden construction defect?
Some defects are obvious, while others can only be detected by a specialist. These include hidden defects – faults that are not immediately obvious to a layperson. It is therefore advisable to consult an independent building consultant or expert before accepting and approving the work. They will draw up a detailed report of any defects, which is required as part of the official acceptance procedure. Just to be on the safe side.
The acceptance procedure is usually carried out as soon as your building contractor informs you that work on the building is complete. All the defects listed in the report must be remedied by the contractor as quickly as possible.
When does the prescriptive period for construction defects lapse?
The warranty and complaint periods also begin on acceptance of the building. The rights of the building owner with regard to defects are governed by the Swiss Code of Obligations (CO); according to Article 367, you as the customer must inspect the building immediately on delivery and report any defects. This represents a period of a few days. This leaves you just a short period of time to complain about any recognizable and obvious construction defects.
But don’t worry, the full prescriptive period is five years (Article 371 CO). You will therefore still have the opportunity to complain about any defects you discover later on. Even then, you are still required to report the defect immediately after it is discovered (Article 370 para. 3 CO). The burden of proof for demonstrating whether or not a defect is present lies with you as the customer throughout the prescriptive period.
If you discover a construction defect after the prescriptive period has expired, you are no longer entitled to have it remedied or to receive compensation. An extended prescriptive period of ten years applies to defects that have been deliberately concealed by the building contractor; however, the customer must prove that the concealment was fraudulent.
What does the SIA standard 118 stipulate?
The commonly used works contract from the Swiss Society of Engineers and Architects (SIA) governs provisions for builders in a more friendly manner than the Swiss Code of Obligations. As the central standard in the Swiss construction industry, SIA 118 (“General Conditions for Construction Works”) regulates the conclusion and content of contracts for construction works. The association first drew up these conditions in 1977 and reissued them on 1 January 2013.
In contrast to the Swiss Code of Obligations, a contract in accordance with the SIA standard allows you to give notice of a defect at any time within a period of up to two years. Moreover, the burden of proof is not on you, but on the contractor. When it comes to concealed defects, a complaint period of a further three years applies – however, the burden of proof falls to you as the customer. This results in a total maximum complaint period of five years. And again, according to SIA 118, a period of ten years applies if the contractor has knowingly failed to disclose a construction defect.
For the SIA 118 standard to apply, it must be agreed in the contract. However, SIA 118 only governs the relationship between the customer and the contractor, not the architectural or engineering contract, nor the (internal) consortium agreement that the contractor concludes with other companies that help with the construction work.
Construction defect or structural damage – what’s the difference?
Structural damage is defined as the deterioration of the condition of a building, for example due to a structural defect. However, structural damage can also be caused by improper use, for example if you clean or maintain components incorrectly.
The most common types of structural damage include moisture damage in the basement, on the facade, or in the roof or living area. But some types of damage such as cracks in the masonry, poor thermal insulation, drafts or the penetration of water can be attributed to building errors.
Duly lodge a complaint about construction defects
If you discover a construction defect, you must notify the building contractor in writing, preferably by registered mail, and set a reasonable deadline for its elimination. In this notification of defects, it is best to refer to the acceptance report, and to enclose photos to document the defects. And watch out: under no circumstances should you commission a workman to eliminate a defect without authorization. First you must give the person who caused the damage the chance to repair it, otherwise you will end up having to pay the repair costs yourself.
What happens if I have reported a defect?
According to Article 368 of the Swiss Code of Obligations, there are three ways for a defect to be remedied after a complaint has been made:
- Free rectification of defects: defects that are relatively easy to correct can be amended by the workman without much effort. However, he may refuse to remedy the defect if the expense is disproportionate to the benefit.
- Reduction: if a rectification of defects is too costly or even impossible, the contractor will reduce the purchase price in line with the loss in value.
- Transformation: this solution is rarely used, or only when a building is uninhabitable. In this case you can refuse acceptance and the contract will be canceled retroactively.
As already mentioned, according to the Swiss Code of Obligations, the customer must first prove that there is a defect; the works contract according to SIA standard 118 reverses the burden of proof during the two-year guarantee period. This means that it is up to the seller or contractor to prove that there is no defect. However, under SIA standard 118, you can only demand a reduction in price or transformation if the workman refuses to remedy the defect or has not already done so.
Regardless of whether you are covered by the Swiss Code of Obligations or the SIA standard, you may forfeit your right to claim for defects if you do not make a proper complaint within the prescribed period. This is because any defects will be deemed to have been approved, and the contractor will therefore not be under any obligation to repair them.
Conclusion: have you noticed a construction defect in your home? Don’t panic! In principle, your building contractor is obliged to remedy the situation, either by paying you financial compensation or by remedying the defect. If you draw up the works contract with the contractor in accordance with SIA standard 118, you will find it even easier to make a complaint about a construction defect. It’s important to inspect your new home carefully and call in an expert for the all-important building acceptance phase. You will then be able to fully enjoy your new home.