Would you let your flaws define you
Construction defects: who is liable - and what can you do?
Your Defect Rights
After the building inspection, you, the architect or the general contractor must reprimand all craftsmen who are responsible for the defects. If you take on this task, you must describe the damage in detail in your notification of defects, set the craftsman a deadline by when he must correct the defects, and send your complaints by registered mail. According to the Code of Obligations, tradespeople have three options for remedying a defect: rectification, reduction and conversion
- They improve their work. Rework makes sense if a defect can be easily remedied, for example a wall needs to be repainted. The craftsman can, however, refuse to carry out a repair if the effort is out of proportion to the benefit. If he refuses, the builder can, with a judicial authorization, commission another person to carry out the repair - at the expense of the guilty craftsman. According to federal court rulings, a craftsman could even be obliged to make an advance payment. However, certain modalities must be observed for this.
- They reduce the price because rework is impossible or (too) expensive. In the event of a scratch, for example, it is not worth replacing the entire linoleum floor. As a rule, however, the price reduction is small in the event of a reduction. The client accepts the defect as an inferior value. Then the craftsman owes the replacement of the reduced value or the builder deducts the amount from the invoice.
- In the worst case, if the work is unusable, you can refuse to accept it and withdraw from the contract. However, such a change rarely occurs - because it is only possible with works that the craftsman can dismantle and take back.
The SIA standard 118
According to the Code of Obligations, the client must prove whether there is a defect. You are in a better position with a contract for work and services according to SIA standard 118, which gives builders better access to defects rights and reverses the burden of proof during the two-year guarantee period: the seller or general contractor must prove that there is no defect. For this, the SIA standard 118 obliges you to request the improvement first. You can only request the reduction or conversion if the craftsman has refused the repair or has not done it.
In order to ensure that warranty work is carried out, the SIA standard 118 also regulates warranty services. As a rule, these are guarantees from banks or insurance companies in the amount of five to ten percent of the contract value. If a deficiency has to be remedied, the client should ensure that this is done before the guarantee period has expired or that the period is extended.
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