Background of the case
A married couple purchased a newly built house from a property developer. More than a year after the handover, they submitted two private expert reports revealing defects in the thermal insulation. The defendants, the developer and its subcontractor, did not fundamentally dispute the defects, but demanded an assessment by a court-sworn expert.
Key legal issues
A key question was whether the defendants were in default of remediation, which the Supreme Court explicitly denied. This is an important point for project owners: a default of remediation does not occur automatically when defects are reported.
The Supreme Court also emphasized that a notice of defects must be formulated specifically. The submission of private expert opinions alone is not sufficient. Building owners should therefore precisely describe defects and set exact requirements for remediation.
Another interesting aspect is the issue of loss of trust. The Supreme Court confirmed that a qualified loss of trust must exist in order to refuse improvement by the developer. Mere defectiveness of the performance is generally not sufficient for this.
Insights for builders
- Early and precise notice of defectsDefects should be reported as quickly and in as much detail as possible.
- Right to improvementConstruction companies fundamentally have the right to remedy defects before other measures are taken.
- Restraint regarding immediate payment claimsA direct claim for compensation for improvements may be premature.
Impact on the construction industry
This decision demonstrates how important careful documentation and clear communication are in the case of construction defects. Developers should react proactively to notices of defects, while clients should formulate their claims precisely and seek expert advice in a timely manner. A legally sound approach is indispensable for both sides in this regard. After all, open and transparent communication can help avoid protracted and costly legal proceedings.
For further information and individual consultation, Anela Blöch and her team are always available at bloech@atb.law or by phone at 01 39 12345 available.
