1.Acceptance of the premises - the most important moment. On your own or with a professional?
Any dispute with a developer should begin with good preparation.
Acceptance of the premises from the developer is considered to be one of the most important activities in the entire process of purchasing a flat. It is then that the purchaser should demonstrate the greatest possible perspicacity in order not to overlook any faults or shortcomings on the part of the developer.
During the acceptance, an acceptance protocol is drawn up, to which the buyer may raise any objections to the condition of the premises handed over to him. Pursuant to Article 27 of the Development Act, the acceptance of the flat takes place in the presence of the buyer. The purchaser of the flat may go to the meeting with the developer on his own or in the company of a person who will professionally assess the condition of the flat - such a person may be someone specialising in building inspections. The cost of such a service, which is provided by many companies in Poland, starts at around PLN 350 for a small flat; for larger units or single-family houses, the price of the service definitely rises to PLN 1500 or even more.
If you decide to take delivery yourself, you should insist on meeting the developer during the daytime, as only natural daylight will allow you to check the actual condition of the flat. With artificial light, it is easy to miss a great many defects, for example unevenness on the walls. Before the inspection, you should be equipped with a basic set of useful tools - i.e. angle measuring instruments, a tape measure, spirit level and a test rod. In addition to this, you should also have the flat blueprint and the contract with the developer with you.
The buyer of the premises should also check, among others:
- area of the premises and compare it with that specified in the contract
- finishing materials used in the premises (comparing with those described in the developer's materials provided when concluding the development agreement)
- evenness of walls and floors
- layout of installations made in the premises: sockets and sanitary connections, among others
- current in sockets using a tester
- condition of the balcony - among other things, it should have a slight slope towards the outside or towards the drain, so that rainwater can flow away.
- installation and tightness of windows and balcony doors
- windows: whether they are scratched or cracked.
- tightness of installed windows and balcony doors
If some provisions of the contract do not seem favorable to the buyer, it is a good idea to consult a lawyer to see if the contract contains any prohibited clauses - for example, provisions stating that if the buyer fails to show up once on the set date, the developer may carry out the acceptance unilaterally. It is important to analyze the provisions of the contract and grasp its controversial provisions, and in case of doubt, we should consult its content with a lawyer, for example legal advisor.
Please note that if the buyer does not show up for collection on the date set by the developer, this deadline will not expire. The developer has the right to withdraw from the contract only if the buyer fails to show up twice to collect the premises. And this withdrawal also has very specific consequences and should be performed in a manner strictly defined by law.
2. Reporting defects to the minutes
If the buyer does not report any defects in the premises when preparing the report, there is a presumption that the premises were handed over without any defects. In such a case, it will be minimally difficult for the buyer in a dispute with the developer to seek repairs to the defects in the premises, unless we can reasonably demonstrate that they were noticed later, after the apartment was taken over. It's easiest to explain if they only came to light later.
However, if comments were immediately submitted to the protocol, in accordance with the Development Act, the developer has 14 days from signing the handover protocol to make a decision whether to take into account the comments of the purchaser of the premises.
If the buyer agrees with the buyer's position, the developer has a period of 30 days to remove the defects indicated in the report - if the developer - despite exercising due diligence - does not manage to make the necessary repairs to the premises, he or she may indicate another date when he will remove these defects, but must justify this delay.
What if the developer does not acknowledge the defect indicated by the buyer in the handover protocol?
In such a case, the buyer is left to use specialized services law firm, which will prepare appropriate summonses and, at a later stage, take legal action.
3. Refusal to accept the premises and withdrawal from the contract in the event of significant defects in the premises
If there are material defects in the premises, the purchaser may withdraw from the contract in accordance with Article 560 § 1 of the Civil Code. Significant defects are those defects in the premises which make them unfit for ordinary use or which are expressly contrary to the contract.
Example:
"The structural elements of the building have not been properly insulated. As a result, the walls and ceilings of the building are leaking causing severe dampness in the internal walls and ceilings of the building. The defects that have arisen are significant in nature and failure to carry out remedial works will result in the accelerated deterioration of the building."
– Judgment of the District Court in Warsaw of December 17, 2015, ref. no. file XXIV C 257/12.
If the premises are affected by minor defects, the buyer is obliged to accept them and pay remuneration, but the buyer may demand that the defect be removed or the price reduced under warranty, unless he was aware of the defect at the time of concluding the contract.
4. Defects of the premises and warranty
What is warranty law?
The institution of the warranty allows the purchaser of the premises to enforce the repair of the developer's defects by the developer or to obtain a reduction in the price of the premises if such repairs are not possible. The purchaser of the premises should make use of the warranty when the property has defects of which it was not aware at the time of purchase - it noticed them after acceptance. Defects in the property must be notified to the developer in writing, enclosing a list of noticed defects with a request to remove them. If the developer does not recognise the defect indicated by the purchaser, then the purchaser is left with the court route.
A warranty is a statutory form of seller liability for defects. Article 556 of the Civil Code imposes liability on the seller for physical and legal defects of the thing sold. This means that the developer is liable by operation of law for defects in the premises - his liability is not affected by the content of the contract or the will of the parties. Furthermore, in dealing with consumers, the warranty cannot be excluded or limited.
5. What can you demand under the warranty for defects?
The warranty for physical or legal defects of the apartment allows you to demand from the developer:
- remove or repair the defect at his expense
- to reduce the price of the dwelling by the amount which, because of the defect, actually reduced the value of the dwelling,
- rescind the contract and return the money - if the defects are so serious that they make it impossible to use the flat and the developer has not removed them within the set time.
The type of compensation requested must be reported in writing to the developer. The principle of proportionality should be taken into account - if the defect is minor and easy to repair, you should not demand withdrawal from the contract and a refund.
6. What defects in the premises can be reported under the warranty?
Development defects of the premises are physical defects. The legislator in Art. 5561 The Civil Code lists cases of physical defects that are covered by warranty. The right to warranty becomes effective when the subject of the contract:
- it does not have the characteristics which a thing of that type must have by reason of the purpose for which it is intended by the contract, the circumstances or its intended use
for example: the dwelling to be lived in has been fitted with leaky windows, due to which the temperature in the dwelling is significantly lower than expected
- there are no properties of which the seller assured the buyer
For example: the developer assured the buyer that the flat would be soundproofed with acoustic insulation; the buyer was supposed to be able to tilt the window, but it can only be opened ajar; the apartment has a different view from the window than originally provided; a different degree of sunlight than agreed
- is not suitable for the purpose about which the buyer informed the seller when concluding the contract, and the seller did not raise any objections to its intended use
for example: the premises were intended to be used for running a restaurant, but were given over as premises for residential purposes
- was delivered to the buyer in an incomplete condition
for example: lack of components of the property covered by the contract
In addition to physical defects, the warranty also covers legal defects. A legal defect in real estate occurs, among others, when the developer sells an apartment belonging to another person to the buyer.
7. The developer's liability for defects in the premises under warranty
The developer is liable for any defects under the warranty on a risk basis - so he does not even have to know about the existence of the defect to be liable for it.
In turn, in order to benefit from the warranty, the buyer must prove that the defect existed at the time of handing over the premises, or that the defect arose due to a reason already present in the premises - for example, construction errors led to the defect. Therefore, as a rule, the warranty does not cover defects that arise during the use of the apartment.
NOTE: Consumers may benefit from the presumption of the existence of a defect if it was discovered within 1 year of taking possession of the premises. In this case, it must be assumed that the defect or its cause existed at the time when the danger passed to the buyer. This means that a purchaser of premises who discovers a defect within one year of taking delivery of the premises does not have to prove that the defect arose from a cause that was already originally present in the premises.
The burden of making findings is transferred to the developer: it is he who determines the time when the defect occurred. If the developer refuses to acknowledge the claim, he must also prove that the reported defect is not a defect within the meaning of the provisions of the Civil Code on warranty.
8. Are warranty and guarantee the same thing?
Warranty and guarantee are two separate institutions. However, the buyer of a property with a defect may use any of them when seeking his rights from the developer.
The warranty applies regardless of the warranty - the warranty is statutory, and the warranty is contractual (granted by the developer).
The warranty provisions are voluntary agreements between the parties to the contract, the scope or duration of which is determined directly in the provisions of the warranty contract. The guarantee agreement may, inter alia, contain a closed catalogue of defects that the developer will repair free of charge for the benefit of the purchaser of the apartment. In most cases, the warranty catalogue does not include all defects that the developer must repair under the warranty.
Moreover, the duration of the warranty is not regulated by law. However, if it is not specified in the contract, it is assumed that it should be one year from the date of receipt of the premises by the buyer.
As mentioned earlier, the warranty and the guarantee are two different legal instruments available to the purchaser of the premises in a dispute with the developer. It is up to the purchaser of the premises to decide which right he wishes to exercise. Although both instruments provide a kind of security for the purchaser, the warranty is by far the more favourable one.
9. How long does the warranty protect the buyer?
The duration of the warranty depends on when the buyer took possession of the property from the developer. If the premises were taken over on December 25, 2014, the warranty period is 3 years. If the premises are accepted after December 25, 2014, the warranty is extended by 2 years - the buyer can use it for 5 years from the reception of the apartment.
The warranty period begins on the day of receipt of the premises. In turn, in the case of warranty covering defects in common parts of the building - for example, ventilation ducts - the warranty begins on the day the occupancy permit for the property is issued.
10. Litigation
Despite the purchaser's statutory right to repair defects in the premises or to reduce the price under the warranty, amicable enforcement of this right against the developer is often unsuccessful. Developers are rarely willing to quickly rectify defects in issued premises because of the additional costs of such repairs. The purchaser of the defective premises may then choose to take the matter to court. How to prepare for a dispute with a developer?
11. Who can sue the developer for defects in the premises?
The reason is the owner of the defective mixture.
12. Within what time limit can you sue the developer?
Please remember to avoid long-term negotiations with the developer, during which the deadline for filing a warranty claim may expire. The warranty is valid for 3 or 5 years, depending on whether the premises were taken over before or after December 25, 2014. A warranty claim expires after one year from the discovery of a defect in the premises. In addition to the warranty, the buyer may also apply for compensation for non-performance or improper performance of the contract - then the limitation period for the claim is 6 years.
13. What can a purchaser of premises demand in a dispute with a developer?
The purchaser of the premises may demand:
- remove or repair the defect at the developer's expense,
- to reduce the price of the dwelling by the amount which, because of the defect, actually reduced the value of the dwelling,
- rescind the contract and return the money - if the defects are so serious that they make it impossible to use the flat and the developer has not removed them within the set time,
- compensation claim.
14. Additional compensation from the developer – when can it be claimed?
Sometimes, the purchaser may claim payment of compensation for property damage caused by the developer's improper performance of the contract - by issuing a defective property to the purchaser - in the event that this defect, caused other further property damage (whereby the causal sequence here must be adequate to the damage, we are often referring to the so-called ordinary consequences of the damage).
In the case of a claim based on warranty, the buyer must prove the existence of a defect. In turn, if the buyer chooses to claim damages, the buyer proves:
- the developer's improper performance of the obligation,
– the fact and amount of property damage suffered,
– the existence of an adequate causal relationship between improper performance of the obligation by the developer and the damage suffered by the purchaser of the premises.
15, Summary
In the event of development defects, the purchaser of the premises has a number of legal tools to enforce its rights very effectively.
If negotiations with the developer regarding the repair of the damage do not go our way, it is worth using the services of a lawyer, for example legal advisor. At our law firm, we will help you prepare an appropriate summons to the developer, and if this does not help, an effective lawsuit against the developer. Over recent years, we have gained considerable experience in this field. We cordially invite you to our office at initial consultation, where we will discuss your current situation and propose, if possible, further legal steps. Of course, we can also arrange an initial consultation online.
Piotr Kłodziński with appl. Agata Michalska
Legal Advisor Warsaw