Home/Warranty/For construction
Carrying out various construction works requires the establishment of a mandatory guarantee for a certain period of time. In case of violation of such obligations, all responsibility rests with the contractor, and he is obliged to eliminate all identified deficiencies.
Regulatory framework
All construction services (construction of buildings and structures, repairs, reconstruction) are provided on the basis of a concluded contract.
Attention! If you have any questions, you can chat for free with a lawyer at the bottom of the screen or call Moscow; Saint Petersburg; Free call for all of Russia.
Their legal framework is as follows.
- Civil Code of the Russian Federation (Articles 722, 753, 755-756). This is a fundamental regulatory act that establishes the concept of a work contract and also contains the norms of mandatory guarantees for construction work.
- Decree of the Government of the Russian Federation numbered 812, dated August 14, 1993, on the procedure and main provisions for concluding contract agreements for the construction, repair, reconstruction of facilities for state and Federal needs. This legal act contains mandatory warranty requirements for all construction projects constructed for public needs.
- Resolution of the State Statistics Committee of the Russian Federation number 100 dated November 11, 1999. This legal act regulates the procedure for drawing up documents and claims when identifying deficiencies in the acceptance of construction projects and their operation.
- Federal Law on the Protection of Consumer Rights, which protects individuals as customers of various construction services from individual entrepreneurs and legal entities.
Attention
Based on the norms of the Civil Code of the Russian Federation, the contract agreement must be drawn up in writing, indicating the contractor’s warranty obligations.
General rules
When performing repairs, installation or any construction (house, residential apartment building, foundation, roofing, plumbing and other types of work, major repairs), it is necessary to conclude an agreement.
It must indicate all the conditions, including warranty periods for the work performed, as well as what exactly the contractor is responsible for. For example, if a contract was concluded between a repair team, and the problem occurred due to errors during construction, the customer will need to file a claim with the builders.
If the contract does not specify exact terms, the customer will have to turn to the law. A similar situation takes place under the supervision of the Town Planning Code, the law “On the Protection of Consumer Rights” and several articles of the Civil Code of the Russian Federation:
- Article 754: “On the responsibility of the contractor to the customer.”
- Article 755: “On guaranteeing the quality of construction work.”
- Article 756: “On the timing of detection of defects in construction work.”
If a defect of any size is discovered that is not the fault of the customer, the contractor is obliged to correct it free of charge.
Guarantee period
In legal practice, there are two types of warranty periods for construction work:
- established by the current regulatory Federal acts (Government Decree No. 812 and Article 756 of the Civil Code);
- specified by contractors or customers in agreements for construction work.
IMPORTANT
Warranty obligations and terms established by Decree of the Government of the Russian Federation No. 812 amount to one calendar year (12 months) from the date of acceptance of construction work.
Article 756 of the Civil Code establishes a 5-year warranty period for construction services from the moment they are accepted by the customer.
That is, if defects were identified by the customer during the specified time, the developer company is obliged to eliminate all defects that have arisen at its own expense.
The parties (customer and contractor) may establish additional warranty obligations in an agreement between themselves. But their deadlines should not be less than those prescribed in regulations.
In an example it looks like this. The contractor undertakes to operate the facility and its elements for 10 years. This means that if hidden or other defects are revealed during this period of time, he eliminates the defects at his own expense.
For your information
It must be remembered that if the contract specifies a shorter warranty period, then these conditions are illegal, and the customer has the right to demand that defects be eliminated within the time frame established by the Civil Code or Resolution No. 812.
What to do if the house was built poorly
It all depends on whether you managed to accept the property and sign the transfer deed or not.
Let's look at it in more detail.
Apartment or house not accepted
If, before signing the transfer and acceptance certificate, you carefully examined the property and identified deficiencies in construction, finishing or installation work, be sure to record them in the certificate. There is no point in refusing to sign it: the developer will make a note about this in the deed and sign the deed unilaterally. Then you will have to sort it out in court.
Putting a signature on the deed and then making a claim is also not worth it: the presence of a signature confirms the customer’s consent to accept the property and the absence of complaints about the quality of the work performed. It is possible to force the developer to eliminate the shortcomings later, but the process will be difficult.
The best option is to sign a report indicating all the identified deficiencies. In this case, the contractor will be obliged to eliminate them within a reasonable time. The concept of a “reasonable period” is not explained by law, but usually all work is carried out within 1-2 months.
Property Accepted
If you have already accepted the property and signed the transfer deed, and defects appeared during the warranty period, there is only one way out - a pre-trial claim. Send it to the company that performed the work and wait for a response. It is better to send everything by a valuable letter with a list of attachments; they must respond within 30 days from the date of receipt of the complaint.
What happens next:
- The contractor receives the claim and sends a commission to the site’s address to find out why the deficiencies occurred. If you do not agree with the commission’s conclusion, you can agree on an independent examination.
- If the company agrees with the claim, the defects are eliminated within the time limits established by agreement.
But most often, developers come up with all sorts of excuses, hoping that customers will simply leave behind and solve problems on their own. In such a situation, there is a direct road to court.
Sample claim
Guarantee for construction work from the contractor
Based on established practice, as well as judicial consideration of disputes under construction contracts, the guarantee for construction work from the contractor consists of two components.
- The period during which the customer will be able to safely operate the facilities, without routine and major repairs. If during this period of time the building, house, structure, or their elements lose their design features, the contractor is obliged to carry out restoration (repair) work at his own expense.
- The period during which the customer is obliged to report identified deficiencies (malfunctions) of the construction project to the contractor. It begins to be calculated from the time the defects or other damage are discovered.
Additional information
An example would look like this: The construction organization gave a guarantee for the construction equal to 5 years of operation, and indicated that it is valid for 2 years from the date of detection of defects.
After acceptance, the customer began to use the premises, but after 3 years he discovered the presence of hidden faults. If he informs the contractor about this within 2 years, then the contractor will carry out restoration work at his own expense.
If after a two-year period, then the construction organization is released from such work, and repairs are done at the expense of the customer.
Amount of security for warranty obligations under 44-FZ
As noted above, the maximum size of the CSO is set at 10% of the initial tender price. The minimum value of this parameter is zero, which is quite logical, given the optionality of its practical use. That is why, when deciding to participate in public procurement, it is necessary to carefully study the tender documentation.
This is simply necessary in order to objectively assess your own financial capabilities, first of all, in terms of providing the necessary provisions. Otherwise, a negative development of events and disruption of delivery is quite possible, which results in the inclusion of the contractor in the register of unscrupulous suppliers with all the unpleasant consequences. The main one is the impossibility of participating in such tenders over the next two years.
Construction guarantee depending on the type of work
The legal concept of a construction guarantee and its terms were discussed above.
In practice, most often customers are faced with situations where contractors offer them several types of guarantees within the framework of one construction agreement:
- warranty obligations for the entire constructed construction project (mandatory service life of the building, house, during which it will meet all technical and regulatory requirements);
- warranty obligations for individual elements and structures that make up the object (a mandatory service life that allows the building, house, structure to fulfill its design characteristics);
- warranty obligations for the work performed (the period during which surface and interior finishes will meet all construction and other requirements).
At the same time, you need to understand that for each type of work a separate period of time is established, and a deadline for reporting detected defects.
Attention
Immediately after completion of construction work, the contractor is obliged to issue a letter of guarantee to the customer.
If the specified cases occur during operation, the contractor, after eliminating them, is obliged to again issue the customer a letter of guarantee for the construction services performed, with a detailed list of all costs and materials.
A sample letter of guarantee regarding work performed under warranty can be viewed here:
Can the warranty be waived?
As stated above, Civil Codes directly oblige any construction company to provide guarantees to customers.
But some norms of the Civil Code say that the parties to a contract may voluntarily stipulate in such an agreement a waiver of any warranty obligations.
Judicial practice in such situations follows the following path.
Attention
If the customer in the agreement refused the contractor’s warranty obligations, but after accepting his facility for operation he discovered severe defects, the correction of which requires large investments, he has the right to contact the construction organization with a reasoned claim, a defect report, and demand that warranty work be carried out based on the requirements of the Civil Code RF.
If you receive a refusal, you need to go to court with a statement of claim, in which it is reasonable to recognize the clauses of the contract regarding the waiver of the guarantee as invalid.
If the decision is made in favor of the customer, the warranty period for the contractor’s obligations begins from the moment it enters into legal force.
Arbitrage practice
It is difficult to fight construction companies, but it is possible. You shouldn’t count on quick results: as a rule, large organizations have a whole staff of lawyers who draw up contracts in their favor - you can’t complain.
Let's look at a few examples of solutions where customers managed to get deficiencies eliminated through the courts:
No. 1. The plaintiffs bought apartments in an apartment building. Defects were discovered during the 5-year warranty period: there are problems in the ventilation ducts, roof and attic floor. Claims were sent to the defendant, but he ignored them.
In court, the plaintiffs wanted to oblige the company to eliminate the defects free of charge - to bring the ventilation ducts to normal condition, to waterproof the attic floors over several apartments.
By decision No. 2-120/2019 2-120/2019(2-3813/2018;)~M-3651/2018 2-3813/2018 M-3651/2018 dated February 18, 2021 in case No. 2-120/2019 requirements are satisfied.
No. 2. The man entered into a contract with the organization to carry out construction and installation work; he wanted to build a car service center. The facility was handed over to the customer, but during operation a number of roof deficiencies were identified, due to which water constantly entered the building.
The customer tried to resolve the situation peacefully, but the contractor did not respond to the claims. Then the man went to court, demanding that the defects in the roof be eliminated.
Decision No. 2-1953/2019 2-20/2020 2-20/2020(2-1953/2019;)~M-1443/2019 M-1443/2019 dated January 17, 2020 in case No. 2-1953/2019 the requirements were partially satisfied.
Warranty and non-warranty cases for construction work
Naturally, the failure of structural elements, structures, and buildings is not always the basis for the contractor’s warranty obligations.
In construction and legal terminology, there are warranty and non-warranty cases.
IMPORTANT
A warranty case means such damage and other defects that arose due to the developer’s failure to comply with the technology, the use of low-quality materials (purchased even at the customer’s expense), as well as other violations of the rules and requirements for specific construction work (for example, approved SNiP standards).
A non-warranty case means such operation of a building, house, structure, or structural components that led to their destruction, defects, and other breakdowns. That is, during operation and other actions with the object, significant violations were committed by the customer.
For your information
The fact of occurrence of a warranty or non-warranty event is confirmed by defective and other inspection reports. But if the parties cannot come to a common denominator through negotiations, a special forensic construction technical examination is carried out.
Subject of the agreement
It is necessary to specify what the legal relationship is about.
If a detailed description is required, then in the corresponding section of the contract a link can be made to the appendix in which the subject will be disclosed (for example, the customer’s assignment, which may include diagrams, tables, verbal description). It is worth noting that the development of the task can be entrusted to the contractor as a separate type of contract work.
The subject includes the work and its result.
The work includes content and scope.
The content is determined based on the type of work: production from own materials, processing, processing, etc. In this regard, to specify the content of the work, the following should be reflected:
- list of works and their composition.
- objects transferred for processing or processing.
To agree on the scope of work, the contract requires the following conditions:
- the number of things and objects of the customer that are subject to processing, treatment, destruction;
- the number of actions that must be performed by the contractor when performing the work;
- dimensions (area, size, thickness, etc.) of things to be processed, destroyed, recycled;
- the amount of new products to be manufactured or obtained as a result of processing.
Another element of the subject is the result of the work. In order to coordinate such an element, you can reflect:
- requirements for the presence and nature of the materialized result of work (new thing, processed, etc.);
- name and characteristics of the work result (features, properties, appearance, color, etc.);
- additional specifying signs of the work result.
Developer's responsibility
Based on current legislation, developers bear the following responsibilities:
- civil law (in cases of violation of construction deadlines and other obligations), which is expressed in the imposition of various fines, penalties, and inflation charges;
- administrative , it involves officials of developers who committed gross violations by failing to comply with various sanitary and other standards, as well as technologies that did not entail serious consequences;
- criminal , it also involves officials of the developer, through whose fault construction, sanitary and other standards were violated, which resulted in the death of people, their injuries, as well as other serious consequences.
It should be noted right away that all civil disputes under such agreements are resolved through judicial proceedings (with the exception of administrative and criminal liability).
Additional Information
If the parties are legal entities, then their disputes are considered by arbitration courts.
If the parties to disputed relations are individuals and legal entities, then these proceedings are considered by district magistrates or civil judges.
It must be remembered that according to the Constitution of the Russian Federation, the same person cannot be brought to different (administrative, criminal) liability for the same act.
