Notifying construction defects: the first weeks

A crack in a wall, damp in the basement, a façade that starts to stain after two winters: construction defects rarely show up on the day of handover. When they do appear, the legal position is often less of a problem than the question of what can still be proven later.

The clock starts at handover

For buildings the warranty period is generally three years from handover (§ 933 ABGB). Alongside this there may be damages claims with their own limitation period – three years from knowledge of the loss and of the party responsible. Contractual provisions, for instance under ÖNORM B 2110, can change the timeline further; in construction contracts between businesses they are the norm.

One distinction matters: a hidden defect that only becomes visible after two years does not automatically extend the period. Anyone who waits because remedial work "makes sense only in spring anyway" risks the claim becoming time-barred in the meantime.

What to do in the first few weeks

• Document immediately. Photographs with a date, from several distances, with a scale in the frame. The condition cannot be reconstructed later, because by then repairs, painting or further building work will have taken place.
• Give notice in writing. An oral complaint on site is legally effective but worthless in a dispute. The notice should describe the defect specifically – not "damp in the basement", but where, since when and to what extent.
• Set a remedial deadline. Most further remedies – price reduction, substitute performance, withdrawal – require a reasonable period for the defect to be remedied.
• Review payments rather than simply stopping them. A right of retention exists, but must be exercised proportionately. Withholding the entire final invoice when the defect accounts for a fraction of it puts you in default yourself.
• Consider preserving evidence. Where the condition is likely to change, an application for judicial preservation of evidence can be worthwhile. It is comparatively inexpensive and secures an expert's findings before remedial work begins.

Who is liable – and why that is rarely clear-cut

Contractors are liable for execution errors, planners for planning and supervision errors, and developers towards purchasers under the development agreement. In practice several parties frequently come into consideration, and the cause cannot be reliably attributed without an expert. That is precisely why early preservation of evidence determines whether a claim can be enforced later.

A practical note

Take the notice seriously even where the relationship with the construction company is good. A factual written complaint does not rule out an amicable solution – it merely keeps the door open should things turn out differently.