Guarantee for construction work: what is it and for how long is it given?

Organizations managing new buildings often have to argue with the developer about the latter’s obligation to carry out repairs to the house and networks during the warranty period for the apartment building. In July, the Supreme Court of the Russian Federation, resolving another such dispute, made important comments regarding the start date of the guarantee and the right of the management authority to act on behalf of the owners on such issues. Read on for details.

Management experience: how to effectively and efficiently manage new buildings
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Guarantee for construction work according to the law

A guarantee for construction work is the period during which you can contact the contractor with a demand for free elimination of defects that appeared due to his fault. For example, if during construction he made deviations from the design documentation, which led to the destruction of real estate.

You can also request correction of deficiencies in other situations:

• use of low-quality materials by the developer;
• violation of requirements and rules for certain construction work in accordance with GOSTs and SNIPs.

For example, warranty cases usually include cracks in walls and destruction of supporting structures.

Note: by law, the contractor is responsible for defects discovered during the warranty period, unless he proves that they arose as a result of improper operation of the facility or temporary wear and tear, as well as improper repairs performed by the customer or another organization (Article 755 of the Civil Code of the Russian Federation).

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.

Warranty period

According to Art. 756 of the Civil Code of the Russian Federation, the minimum warranty period is two years. Even if the contractor under the contract has set a shorter period, claims can be made within two years, but you will have to prove that the defects arose before the transfer of the property for reasons that appeared before that moment. For example, in case of violation of building codes or non-compliance with design documentation.

The maximum warranty period is 5 years, unless other periods are established by the contract. Often contractors, in addition to construction, perform other work (installation, repair, etc.) - separate deadlines are set for them.

Assembly

If installation work was carried out in an individual residential building or other property, the warranty is valid for 2-5 years, as during construction. Installation refers to other types of construction work (Article 740 of the Civil Code of the Russian Federation).

You can safely demand correction of defects if your roof, porch or other elements that as a whole form a residential building were made poorly.

Finishing

Finishing work does not apply to construction, and you need to focus on Art. 29 of the Law of 02/07/1992 No. 2300-1 “On the protection of consumer rights”. You can demand that the contractor correct the defects within two years.

Repair

During current repairs, no significant redevelopment or reconstruction of the building is carried out, and the warranty period is two years. If the repair is major, a 5-year period applies.

In a new building

According to clause 5 of Art. 7 Federal Law dated December 30, 2004 No. 224-FZ “On participation in shared construction...”, the warranty period when purchasing an apartment from a developer is at least five years. And a three-year warranty is given for engineering and technological equipment.

In a wooden house

If you have built a wooden house and defects appear due to the fault of the contractor, you can demand their elimination within at least two years. The maximum warranty is valid up to 5 years.

It's better to look at the contract. Some companies provide a guarantee equal to the minimum service life: for example, 50 years. Typically, it applies to turnkey projects completed according to the contractor’s design. The warranty can also be established on individual elements: foundation - 1 year with drainage and 5 years without; for the laminated timber itself – 20 years.

Phone warranty under consumer protection law

What is a warranty card and why is it needed?

Warranty and non-warranty cases

Article 741 of the Civil Code of the Russian Federation proves that all cases described in a specific agreement or in legislation are guaranteed.

In addition, there are the following nuances:

• The contractor is relieved of liability if the operation is improper.
• If a defect is discovered, the construction commission may mistake it for natural wear and tear.
• The contractor himself may disagree with the opinion of the other party and make claims.

What the warranty does not cover

The warranty does not specifically cover defects caused by the customer. Here are some examples:

1. During the redevelopment of the apartment, the load-bearing wall was affected and a crack appeared. The third party performing the work will be responsible, not the construction company. And if the redevelopment is not agreed upon, the owner is also responsible.
2. The customer intentionally damaged or destroyed the property: demolished walls, set it on fire, flooded it.
3. The contractor slightly deviated from the design documentation, but it was determined that this could not lead to defects.

If a house or apartment was damaged by a fire resulting from a short circuit of poorly installed equipment or wiring, claims should be made not to the developer, but to the company that performed the installation work. It’s good if the property is insured - in this case, you can receive compensation from the insurer, and he himself will deal with the guilty party in court.

If the guarantee is not specified in the contract

If the contract does not specify a period during which demands for elimination of deficiencies can be made, the guideline should be two years from the date of transfer of the property.
Example. A woman entered into an agreement for the construction of a private residential building with a contractor; the guarantee was not specified in it. The object was delivered on time. A year later, a crack appeared on the wall, and the building was in danger of collapsing.

The examination found that the crack was formed due to non-compliance with construction technology. The foundation was erected by another company, and it turned out to be innocent - everything was done efficiently.

The customer first turned to the contractor with a claim to eliminate the defect, but he refused, citing the fact that the house was not built according to his design, and the warranty does not apply to it. Then the woman went to court, indicating in the statement of claim that according to the law, the warranty period for construction work is two years, even if it is not specified in the contract.

What to do when defective work is discovered

Identification of defects is the basis for making a claim. The trial procedure includes certain stages that must be completed.

Before commissioning

If the facility has not yet been put into operation, then we will not be talking about warranty periods, since the contractor has not yet completed all of its obligations. Only the transfer of the object into operation triggers the warranty. This means that deficiencies discovered by the customer must be eliminated not within the framework of the complaint procedure.

Step-by-step instruction:

• collect evidence of the defect;
• contact the developer;
• demand that deficiencies be corrected.

The detected flaw must be recorded. Photos, measurement results - any confirmation of the defect will help in its further elimination.

Important! It is worth starting a dialogue with the contractor not with complaints, but through a business approach. Formally, the developer has not yet delivered the property, and the customer has not accepted it. This means pointing out the defect to the contractor rather than requiring it to be fixed.

After reception

The fact of transferring the object into operation automatically triggers the guarantee. If a defect was discovered after acceptance of the new building, it is recommended to do the following:

• collect evidence of the defect;
• prepare documentation;
• send the package to the counterparty;
• demand that the deficiency be corrected.

The claim procedure for settling the dispute will apply. The effectiveness of the proceedings depends on the quality of the evidence collected and the documentation compiled.

ATTENTION! If the object cannot be used due to a defect, then the warranty is suspended, i.e. the duration of liability is extended for this period of time.

The central role will be played by the claim - a written act in which the originator demands that existing defects be eliminated. The form must include the following information:

• information about counterparties;
• construction data;
• identified deficiencies;
• date of compilation and signature.

In the report, the applicant must describe the defects in detail. It is necessary to refer to the provisions of the law that allow you to demand the elimination of defects.

The applications will be evidence. This could be photographs, examination results, witness statements and other arguments.

A special case is when the object was put into use, but the contractor went bankrupt. Bankruptcy automatically removes the figure of the counterparty - it ceases to exist from a legal point of view. What should citizens do? Each developer has special compensation funds. They demand money from them for compensation.

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:

1. 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.
2. 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

If the contractor refuses to correct the defects

You still need to file a pre-trial claim first. It makes sense to go to court if the contractor has not responded to it within a month, or has refused to comply with the requirements.

What needs to be done to oblige the company to correct deficiencies through the court:

1. Order an independent examination. The conclusion must indicate who exactly is to blame for the defects and for what reasons they arose.
2. Draw up a statement of claim in three copies, one sent to the defendant by a valuable letter with a list of the attachments. You can track the letter on the Russian Post website.
3. Submit a statement of claim along with other documents to the district court at the address of the property, your place of residence, the address where the contract was concluded or the location of the defendant - your choice.
4. Receive a determination to accept the claim for proceedings. It will indicate the date of the preliminary hearing.
5. Come to the pre-hearing in person or send a lawyer there if the request to attract a representative is filed separately or in a lawsuit.

Then there will be trials. By law, they can last up to two months, but in practice everything takes six months. When the decision is made, pick up a copy of it. It will come into force in a month, and then a writ of execution will be issued.

In addition to the requirement to eliminate deficiencies, the claim can be made to demand compensation for moral damages, a fine in the amount of 50% of the awarded amount (if we are talking about deficiencies in finishing work).

Contents and sample of the statement of claim

What is indicated in the application:

• name and address of the court;
• Full name, address, telephone number of the plaintiff;
• name, address of the construction company, full name. manager;
• date of conclusion of the contract, number;
• subject of the contract: construction of a private house, apartment building according to preschool education, etc.;
• information about the property: address, number of rooms, floor, area;
• a list of identified deficiencies;
• what causes the appearance of defects;
• requirements;
• date of compilation, signature.

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.

Lawyer's answers to private questions

Does the warranty apply if the contractor built the house without a contract?

Yes, but to do this, the construction contract will have to be recognized in court as concluded.

The contract contains a clause stating that the contractor does not bear responsibility or warranty obligations if defects are identified in the house he built. Is this legal?

No. Here you can apply a minimum warranty period of two years.

The house was built by a third party. A year later the roof started leaking. Can I oblige the contractor to repair it?

Yes, the warranty applies to all elements that make up the living space.

Is it possible to indicate in the construction contract a list of defects that are covered by the warranty?

Yes, this is not prohibited by law. But if a defect is identified that is not included in this list, but which arose due to the fault of the contractor, the customer may also demand that it be eliminated.

The company built me ​​a house from timber. A year after construction was completed, I discovered that the wall was leaking. The technical documents say that in order to comply with operating conditions, I must treat the wood; occupancy is possible within 2-3 months after assembling the house kit - this time is enough for shrinkage. Can I request that a contractor straighten the wall now?

You can demand, but there is no guarantee that you complied with the operating conditions. The contractor may refer to this and refuse you. It is better to first order an independent examination, which will establish all the circumstances.

Is it possible to refuse

If a guarantee is waived, this is stated in the terms of the contract (clause on the obligations of the contractor). If this is not the case, but the customer has discovered shortcomings or defects in the repair, then the question arises whether a claim can be made. The legislator gives a clear positive answer.

The meaning of the warranty period is that it is voluntary. This does not mean that the absence of an increased liability clause in the contract automatically releases the contractor from claims. For any type of work there is a legal time for filing complaints.