It was published in the Collection of Laws on December 7, 2022 Act No. 374/2022 Coll., amending Act No. 634/1992 Coll., on consumer protection, as amended, and Act No. 89/2012 Coll., Civil Code (hereinafter referred to as "OZ"), as amended. This long-awaited amendment, which entered into force on 6 January 2023, among other things, changes the provisions regarding the application of the warranty and rights from construction defects. Defects are a frequent cause of disputes in the construction industry. Below we will deal with the changes in relation to the contract for works, the subject of which is real estate, and to the contract for the purchase of real estate.
Warranty and construction defects
In general, the customer, or certain by law belong to the buyer rights from defective performance, which in addition tend to be supplemented by the negotiation of a guarantee. However, arranging a guarantee is completely voluntary and depends only on the will of the parties (especially the will of the contractor or seller) whether they commit to any guarantee beyond the scope of legal obligations, i.e. the satisfaction of the other contracting party beyond the scope of legal rights from defective performance. By warranty we mean the fact that the thing will be suitable for use for the usual purpose or that it will retain the usual properties for a certain period of time (warranty period). So at the time of sale, the thing could have been flawless, and the defect could have arisen only later.
First of all, it is necessary to check whether and how liability for defects was treated in the contract for the work, the subject of which was real estate, or the purchase contract for the property and whether it was negotiated guarantee for the quality of the work, or subject of purchase. Liability for construction defects continues as standard according to OZ 5 let and applies to hidden defects, i.e. defects that the building already had at the time of handover, but which will become apparent only later. However, the length can be contractually modified. Arranging a quality guarantee is not mandatory by law. It therefore depends on whether the quality guarantee was agreed in the contract with the contractor or the seller or not.
Part of the changes to the OZ refers to this quality guarantees. The provision on the quality guarantee is worded more precisely to comply with Article 17 directive 2019/771 on commercial guarantee[1]. The quality guarantee is defined as unilateral legal action guarantor, who undertakes to provide the transferee with certain performance, if the object of performance does not have certain characteristics. The content of the guarantee can be, in particular, the right to withdraw from the contract, exchange the item, repair or provide another service related to the correction of the poor condition of the object of purchase. This is a voluntary commitment of the guarantee provider, so it is up to him to which obligations he undertakes in the guarantee. If the manufacturer guarantees that the item will retain its functions and performance during normal use for a certain period of time, the provider is always obliged to at least repair or replace the item under the warranty. This does not prevent him from committing himself to further performance.
There were also several terminological changes, in § 2115 OZ the word "seller" replaced by the words,,guarantee provider". It is taken into account that the guarantor may also be a person other than the seller, especially the manufacturer, which the old legislation did not take into account. It is also newly stated in § 2117 of the Civil Code that "the buyer must report a defect covered by the warranty to the warranty provider within the period determined by the length of the warranty period, § 1921 and § 1922 are applied mutatis mutandis". According to these provisions, the right from defective performance can be asserted in court, if it is previously reprimanded in time. If the acquirer did not point out the defect in time and the alienator objects to this in court, the court will not grant the acquirer the right.
Rights from defective performance
Regardless of whether the relationship between the parties is based on a contract for the purchase of real estate or a contract for work, the subject of which is real estate (including a contract on the modification of immovable property and a contract on the construction, repair or modification of a building), the law provides for the responsibility of the seller, or the contractor for defects that appear on the property.
The customer's rights from defects in the construction work are regulated in the OZ, on the one hand, in its provisions on the contract for the work, in which defects in the work generally refer to §§ 2615–2619 and defects in the construction work specifically §§ 2629–2630. For defects in the work, some provisions of the Civil Code on the contract of sale, namely §§ 2099–2112 (for the customer's rights from defective performance) and §§ 2113–2117 (guarantee for quality) are applied by analogy.
If the contract for the work was concluded with the consumer, the new section § 2629 paragraph 3 of the Civil Code applies, which stipulates that "if a defect becomes apparent within 2 years of acceptance, it is considered that the building was already defective upon acceptance, unless the nature of the defect precludes it. This period does not run for the period during which the customer cannot use the building, in the event that he has justly complained about the defect". The position of the consumer is therefore more favorable in the first 2 years, as the burden of proof is on the contractor, who must prove that the building was not defective already upon acceptance. According to paragraph 1 of the above-cited provision "the court will not grant the right from a hidden defect that the customer he did not scold without undue delay after he could have ascertained it with due care, but no later than five years after taking over the building, if the other party objects that the defect was not pointed out in time. The same applies to a hidden defect in the project documentation and other similar performance".
The same rule is enshrined in the purchase contract of immovable property, where paragraph 2129 is added to § 3 of the Civil Code, according to which "if the buyer is a consumer and if the defect becomes apparent within 2 years from the transfer of the risk of damage to the property to the buyer, it is considered that the immovable item was already defective at the time of the transfer of the risk of damage, unless the nature of the defect precludes it. This period does not run for the period during which the buyer cannot use the item, in the event that he has justly complained about the defect". It complements this provision as well as the work contract a general period of 5 years for the seller's liability for hidden construction defects.
záver
If we summarize the above, in the first 2 years the position of the buyer of real estate, or more favorable for the client of the building when exercising rights from defects, as the cited rebuttable presumption of defectiveness of the building applies, but in the following 3 years the buyer, or the customer has the possibility to point out a defect in the building, but it is up to them to prove that these are defects that the building already had when the risk of damage passed, or upon acceptance, which in our opinion will not be completely easy or cheap, as the buyer, or the client of the construction is unlikely to do without an expert report.
Source: construction.cz
Have you bought a property that has defects? Have you ordered a turnkey house, but the house is not what it should have been? Not sure what the warranty covers? We will advise you!
Mgr. Lucie Špičková, Attorney
[1] DIRECTIVE (EU) 2019/771 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 May 2019 on certain aspects of contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC and repealing Directive 1999/44/EC
