Dispute with the developer over defects in the premises

Piotr Kłodziński|
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    As part of our practice Civil Law Office, specializing in real estate matters, each year we successfully conduct several projects involving comprehensive support for clients in disputes with developers. 

    In addition to inviting you to use our support in disputes with developers, please allow us to share below some of the knowledge and experience our Team has gathered.

    1. Acceptance of the premises - the most important moment. Alone or with a professional?

    Any dispute with a developer should begin with good preparation. Accepting the premises from the developer is considered one of the most important activities in the entire process of purchasing an apartment. This is when the buyer should be as thorough as possible so as not to miss any defects or shortcomings in the premises. During the acceptance, the buyer inspects the apartment and, if necessary, points out any defects to the developer. During the acceptance, the parties prepare a handover protocol to which the buyer may raise any objections to the condition of the premises being handed over to him.

    Pursuant to Art. 27 of the Development Act, the acceptance of the apartment takes place in the presence of the buyer. The buyer of the apartment can go to a meeting with the developer alone or in the company of a person who will professionally assess the condition of the premises - such a person may be someone specializing in construction inspections. The cost of such a service, provided by many companies in Poland, starts from about PLN 300 in the case of a premises, in the case of larger premises or single-family houses, the price of the service increases significantly to PLN 1,500 or even more.

    If you decide to pick it up yourself, you should insist on meeting the developer during the day, as only natural daylight will allow you to check the actual condition of the apartment. With artificial light, it is easy to miss many defects, for example unevenness on the walls. Before collection, you should obtain a basic set of useful tools - angle measuring devices, a tape measure, a spirit level and a tester. In addition, you should also have the apartment design 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 the installation in the premises: including sockets and toilet connections
    • 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

    In the event of significant defects in the premises, the buyer may withdraw from the contract in accordance with Art. 560 § 1 of the Civil Code. Significant defects are defects in the premises that make it unfit for ordinary use or are clearly contrary to the contract.

    Example:

    “The structural elements of the building were not properly insulated. As a result, the walls and ceilings of the building leak, causing severe dampness in the internal walls and ceilings of the building. The resulting defects are significant defects, and the lack of repair work will result in accelerated degradation 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 warranty allows the purchaser of the premises to have the developer repair defects or obtain a reduction in the price of the premises if such repairs are not possible. The buyer of the premises should use the warranty when the property has defects that he was not aware of at the time of purchase - he noticed them after receipt. The developer must be notified in writing about any defects in the premises, attaching a list of any defects noticed and a request for their removal. If the developer does not acknowledge the defect indicated by the buyer, then the buyer has the option of taking legal action.

    Warranty is a statutory form of seller's liability for defects. Article 556 of the Civil Code imposes liability on the seller for physical and legal defects of the sold item. This means that the developer is liable by law for any defects in the premises - his liability is not influenced by the content of the contract or the will of the parties. Moreover, in transactions 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:

    1. remove or repair the defect at his expense
    2. reducing the price of the apartment by the amount that, due to the defect, actually reduced the value of the apartment,
    3. withdraw from the contract and return the money - if the defects are so serious that they make it impossible to use the apartment and the developer has not removed them within the specified 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:

    • there are no properties that an item of this type should have due to the purpose specified in the contract or resulting from the circumstances or purpose

    for example: the premises intended for living are equipped with leaky windows, due to which the temperature in the apartment is much lower than expected

    • there are no properties of which the seller assured the buyer

    for example: the developer assured the buyer that the apartment would be soundproofed; the buyer was supposed to be able to tilt the window, but it could only be opened wide; the premises has a different view from the window than the one originally provided; different than the agreed degree of sunlight

    • 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.

    ATTENTION! Consumers may benefit from the presumption of the existence of a defect, provided that it was detected within 1 year of receiving the premises. In such a case, it should be assumed that the defect or its cause existed at the time the risk passed to the buyer. This means that the purchaser of the premises who discovers a defect within one year of taking over the apartment does not have to prove that the defect was caused by a cause that was 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).

    Warranty provisions are voluntary arrangements between the parties to the contract, the scope and duration of which are determined directly in the provisions of the guarantee contract. The warranty agreement may, among other things, contain a closed catalog of defects that the developer will repair free of charge for the purchaser of the premises. In most cases, the warranty catalog does not cover 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, a guarantee and a warranty are two different legal instruments available to the purchaser of the premises in a dispute with the developer. It is the buyer of the premises who decides which right he or she wants to exercise. Even though both instruments constitute a kind of security for the buyer, the warranty is definitely more favorable.

    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 buyer's statutory right to repair defects in the premises or reduce its price under warranty, amicable enforcement of this right from the developer often ends in failure. Developers are rarely willing to quickly remove defects in the delivered premises due to the need to incur additional costs of such repairs. Then the buyer of the premises with a defect may decide to take the case 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:

    1. remove or repair the defect at the developer's expense,
    2. reducing the price of the apartment by the amount that, due to the defect, actually reduced the value of the apartment,
    3. withdraw from the contract and return the money - if the defects are so serious that they make it impossible to use the apartment and the developer has not removed them within the specified time,
    4. compensation claim.

    14. Additional compensation from the developer – when can it be claimed?

    Sometimes the buyer may seek compensation for property damage caused by improper performance of the contract by the developer - the delivery of a defective property to the buyer - if this defect caused other further property damage (the cause and effect sequence must be adequate to the damage, this is often referred to as the so-called ordinary consequences of 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:

    – improper performance of the obligation by the developer,

    – 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 enabling very effective enforcement of his rights.

    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

    1/5 - (1 vote)

    THE LATEST LEGAL ADVICE

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    Contents
      Add a header to begin generating the table of contents

      Entry 

      As part of our practice Civil Law Office, specializing in real estate matters, each year we successfully conduct several projects involving comprehensive support for clients in disputes with developers. 

      In addition to inviting you to use our support in disputes with developers, please allow us to share below some of the knowledge and experience our Team has gathered.

      1. Acceptance of the premises - the most important moment. Alone or with a professional?

      Any dispute with a developer should begin with good preparation. Accepting the premises from the developer is considered one of the most important activities in the entire process of purchasing an apartment. This is when the buyer should be as thorough as possible so as not to miss any defects or shortcomings in the premises. During the acceptance, the buyer inspects the apartment and, if necessary, points out any defects to the developer. During the acceptance, the parties prepare a handover protocol to which the buyer may raise any objections to the condition of the premises being handed over to him.

      Pursuant to Art. 27 of the Development Act, the acceptance of the apartment takes place in the presence of the buyer. The buyer of the apartment can go to a meeting with the developer alone or in the company of a person who will professionally assess the condition of the premises - such a person may be someone specializing in construction inspections. The cost of such a service, provided by many companies in Poland, starts from about PLN 300 in the case of a premises, in the case of larger premises or single-family houses, the price of the service increases significantly to PLN 1,500 or even more.

      If you decide to pick it up yourself, you should insist on meeting the developer during the day, as only natural daylight will allow you to check the actual condition of the apartment. With artificial light, it is easy to miss many defects, for example unevenness on the walls. Before collection, you should obtain a basic set of useful tools - angle measuring devices, a tape measure, a spirit level and a tester. In addition, you should also have the apartment design 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 the installation in the premises: including sockets and toilet connections
      • 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

      In the event of significant defects in the premises, the buyer may withdraw from the contract in accordance with Art. 560 § 1 of the Civil Code. Significant defects are defects in the premises that make it unfit for ordinary use or are clearly contrary to the contract.

      Example:

      “The structural elements of the building were not properly insulated. As a result, the walls and ceilings of the building leak, causing severe dampness in the internal walls and ceilings of the building. The resulting defects are significant defects, and the lack of repair work will result in accelerated degradation 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 warranty allows the purchaser of the premises to have the developer repair defects or obtain a reduction in the price of the premises if such repairs are not possible. The buyer of the premises should use the warranty when the property has defects that he was not aware of at the time of purchase - he noticed them after receipt. The developer must be notified in writing about any defects in the premises, attaching a list of any defects noticed and a request for their removal. If the developer does not acknowledge the defect indicated by the buyer, then the buyer has the option of taking legal action.

      Warranty is a statutory form of seller's liability for defects. Article 556 of the Civil Code imposes liability on the seller for physical and legal defects of the sold item. This means that the developer is liable by law for any defects in the premises - his liability is not influenced by the content of the contract or the will of the parties. Moreover, in transactions 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:

      1. remove or repair the defect at his expense
      2. reducing the price of the apartment by the amount that, due to the defect, actually reduced the value of the apartment,
      3. withdraw from the contract and return the money - if the defects are so serious that they make it impossible to use the apartment and the developer has not removed them within the specified 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:

      • there are no properties that an item of this type should have due to the purpose specified in the contract or resulting from the circumstances or purpose

      for example: the premises intended for living are equipped with leaky windows, due to which the temperature in the apartment is much lower than expected

      • there are no properties of which the seller assured the buyer

      for example: the developer assured the buyer that the apartment would be soundproofed; the buyer was supposed to be able to tilt the window, but it could only be opened wide; the premises has a different view from the window than the one originally provided; different than the agreed degree of sunlight

      • 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.

      ATTENTION! Consumers may benefit from the presumption of the existence of a defect, provided that it was detected within 1 year of receiving the premises. In such a case, it should be assumed that the defect or its cause existed at the time the risk passed to the buyer. This means that the purchaser of the premises who discovers a defect within one year of taking over the apartment does not have to prove that the defect was caused by a cause that was 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).

      Warranty provisions are voluntary arrangements between the parties to the contract, the scope and duration of which are determined directly in the provisions of the guarantee contract. The warranty agreement may, among other things, contain a closed catalog of defects that the developer will repair free of charge for the purchaser of the premises. In most cases, the warranty catalog does not cover 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, a guarantee and a warranty are two different legal instruments available to the purchaser of the premises in a dispute with the developer. It is the buyer of the premises who decides which right he or she wants to exercise. Even though both instruments constitute a kind of security for the buyer, the warranty is definitely more favorable.

      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 buyer's statutory right to repair defects in the premises or reduce its price under warranty, amicable enforcement of this right from the developer often ends in failure. Developers are rarely willing to quickly remove defects in the delivered premises due to the need to incur additional costs of such repairs. Then the buyer of the premises with a defect may decide to take the case 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:

      1. remove or repair the defect at the developer's expense,
      2. reducing the price of the apartment by the amount that, due to the defect, actually reduced the value of the apartment,
      3. withdraw from the contract and return the money - if the defects are so serious that they make it impossible to use the apartment and the developer has not removed them within the specified time,
      4. compensation claim.

      14. Additional compensation from the developer – when can it be claimed?

      Sometimes the buyer may seek compensation for property damage caused by improper performance of the contract by the developer - the delivery of a defective property to the buyer - if this defect caused other further property damage (the cause and effect sequence must be adequate to the damage, this is often referred to as the so-called ordinary consequences of 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:

      – improper performance of the obligation by the developer,

      – 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 enabling very effective enforcement of his rights.

      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

      1/5 - (1 vote)