The handover of the construction work represents a crucial milestone in the process of its realization. In an ideal world, this should be the last legal and factual act. However, the reality, which is also taken into account by the law, is that construction works are regularly handed over when they are not yet completed.
According to the legal rules, which can be contractually derogated from, the customer is not entitled to refuse acceptance of the work in the event that it shows only isolated minor defects which, by themselves or in combination with others, do not prevent the use of the building functionally or aesthetically, nor do they significantly limit its use. Below we will analyze which defects can be refused acceptance of the work and for which it will not be possible.
Defect or unfinished business?
First of all, it is necessary to clarify what a "work defect" is. Simply put, these are deviations in the execution of the work from what was agreed in the contract or what is required by law. The wording "defects and unfinished works" regularly appears in contracts for work. However, we do not encounter the concept of unfinished business in the Civil Code (which otherwise comprehensively regulates the rules of the work contract).
An incompleteness, that is, something that is missing, is viewed in the legal world in the same way as a defect. For example, if I agree in the contract that I want to have a house built where windows are not installed, then the delivery of the house without installed windows is not a defective performance in the legal sense of the word. The contractor is not obliged to deliver the windows, the client is not entitled to refuse to take over the construction because the windows are not installed.
Minor defect
The law does not specify what can be considered minor defects, so we can only be inspired by earlier court decisions. According to four Decisions of the District Court in different cities, it can be, for example:
poor accessibility of fan and floor heating controls,
crooked lining,
bad plastering,
dirty radiator,
damaged stairs,
damaged door frames,
absent cleaning of the building and walls after electrical work,
smudged glue,
uneven joints between tiles,
unpainted pillars in the gazebo,
lack of final treatment of concrete with anti-graffiti coating,
unfinished landscaping of areas,
whether or not to carry out a review of the electrical installation,
The professional literature also mentions, for example insufficient sealing of windows, wavy windowsills (1) or damaged corners in rooms that will need to be cleaned and repainted (2).
A rare defect
In addition to the fact that it can only be a minor defect, this minor defect must also be unique. Again, "uniqueness" needs to be assessed in a specific situation, for a specific building, when it will depend on the scale and nature of the building. Otherwise, the construction of a family house and the construction of a commercial building or an office building will be considered. E.g. The Constitutional Court stated that 557 obvious defects and incomplete works during the hotel's reconstruction cannot be considered isolated defects (Decision of the Constitutional Court, file stamp I. ÚS 645/2000).
Impossibility to use the building functionally or aesthetically
The third criterion that a defect in a work must meet in order for it not to be possible to refuse acceptance of the building is that the defect does not prevent the use of the work from a functional or aesthetic point of view, nor is such use substantially limited. We recommend that the purpose of use of the building be described in detail in the contract for the work itself. The customer has different requirements from a family home, different requirements from an administrative building, different from a luxury hotel.
Defects preventing use are, for example, significant damage to the facade, or significant leakage into the interior, which puts half of the building out of service. It is unimaginable that a guest will be moved into a leaking hotel room.
Here we must point out that the possibility of using the work according to the contract is not the same as the possibility of using the work based on the decision of the building authority. In order to fulfill the obligation from the contract, the essential purpose of use is specified in the contract for the work (see Judgment of the Municipal Court in Prague, ID 21 Co 135/2020-378).
Obtaining a construction (or approval) decision is a phase of construction, usually one of many, for which the contractor is responsible. In the approval procedure, it is determined whether the construction was carried out in accordance with the issued permit and whether the resulting construction corresponds to the construction documentation. Compliance with the requirements of the authorities concerned is also reviewed. It is therefore a legally established set of prerequisites for the use of the building. The aesthetic level is not evaluated by the building authority, and the functional side can be quite different.
A building that has not successfully passed the approval procedure cannot be used (with the exception of the institute for trial operation) and will therefore clearly show a defect, for which the customer will be able to refuse to take it over.
However, even the receipt of approval decision or consent does not mean that the building can be used functionally and aesthetically in the sense of the Civil Code, i.e. according to the wording of the specific contract. The approval decision is thus one, but not the only, prerequisite for the possible use of the construction work.
The customer is at an advantage
The legislator set the rules quite strictly towards the contractor. For the customer to refuse to take over the work, it is sufficient that a defect does not meet even one of the above criteria. One defect will not be minor, but fundamental - it can be rejected. Several minor defects appear - can be rejected. Any defect, even a single one, prevents use, even just from an aesthetic point of view - acceptance can be refused.
On the other hand, with construction works, the legislator is dealing with the reality that a perfectly finished building is a rare phenomenon. In this way, contractors are accommodated. We are not aware of any other situation in the legal system where the customer would be obliged to take over an unfinished order, i.e. an unfinished item.
Literatura:
(1) HORAK, Pavel. § 2628 [Takeover of building]. In: HULMÁK, Milan et al. Civil Code VI. Obligatory law. Special part (§ 2055–3014). 1st edition. Prague: CH Beck, 2014, p. 1128, marg. No. 5.
(2) MAREK, Karel, Lukáš KLEE, Vojtěch HRADEČNÝ, Anastázie JEGOROVÁ, Roman TUREK, Veronika HOUROVÁ, Tomáš KALENSKÝ and Vladimír LUPTÁK. § 2628 [Takeover of building]. In: ŠVESTKA, Jiří, Jan DVOŘÁK, Josef FIALA et al. Civil Code: Commentary, Volume VI, (§ 2521-3081). Wolters Kluwer
Source: KONSTRUKCE.cz
