Construction defects: Liability, procedure & notification of defects Template

Where there is construction, there are defects. As the customer in Switzerland, you are entitled to demand that the contractor rectifies the defects free of charge – however, you must comply with all deadlines and document the defects.

Caution: If recognized or obvious defects are not reported in good time, the item or work shall be deemed approved. In this article, we clarify the most important questions about construction defects, how and until when you can claim defects and what you should pay particular attention to. We also offer you a free template for your notice of defects to download.

What is defined as a construction defect in Switzerland?

Construction defects are errors during construction: services that were not provided or were provided incorrectly, as well as incorrect or inferior materials. Construction defects are anything but trivial. If there is a defect, this usually results in a reduction in the value of the building.

This includes:

• Sloping walls or floors
• Doors that don’t close
• Incorrect wiring
• Faulty sanitary facilities
• Structural faults in the building

The official definition of construction defects is: “We speak of construction defects when the actual condition of a constructed building deviates from the contractually owed target condition.”

Construction defects or construction botch-up – what’s the difference?

A construction defect is any deviation from the target condition, especially if it has a negative impact on the result (see above). In most cases, this is due to misunderstandings or human error – there was insufficient coordination, something was ordered incorrectly, someone made a mistake.

Construction botch-up, on the other hand, is an intentional defect: subcontractors who want to save money and use inferior materials without reporting them are committing construction botch-up. The same applies to contractors who are aware of errors but do not report them in order to avoid the consequences. The results are construction defects that were deliberately committed or covered up.

Cost and time pressure: an invitation for defects

The most common causes of construction defects are cost pressure and time pressure. This starts with the planning and awarding of contracts: Anyone who plans too little time and a too small budget or agrees to such planning makes it difficult to carry out the work professionally.

Added to this is the cost pressure in construction – making savings in the wrong place can increase the risk of structural damage. One example are building shells: Incorrect or inferior envelopes can allow moisture to enter and risk structural defects. It is therefore important for the construction management to monitor the work in order to ensure consistent quality and prevent defects.

The top 5 construction defects

We have listed the most common defects from the roof to the front door:

1. Roof

Building defects occur most frequently on and under the roof: Moisture causes mold growth in the roof area. The reasons for this are, for example, mistakes in insulation or the use of damp wood in the construction of the roof truss.

2. Ceilings and floors

Defects often occur on the ceiling and floor if the surface and the coating or top layer do not match: Parquet laid on top of underfloor heating will come apart due to the heat and form gaps; incorrect priming of the ceiling will cause the plaster to crumble.

3. Walls

Cracks in the walls are also a common defect. However, the causes of cracks are manifold: structural faults, defective bricks, sloppy jointing or insufficient overlap are just some of the possible reasons.

4. Building technology

The proportion of technical building equipment (TGA) is increasing from year to year – and the risk of errors and quality defects is rising accordingly. Problems range from insufficiently sheathed electrical cables to drinking water installations that promote stagnation.

5. Windows and doors

Leaky windows and non-closing doors are more than just annoying: they drive up heating costs or cause further damage due to moisture penetration. Faulty windows and doors and defects during installation are definitely areas that a builder should look out for.

Who is liable for construction defects?

You have discovered defects in your building. What now? The craftsman is liable for the correct execution of his work; as a general contractor or architect, you can complain to him in the event of a defect – with a so-called notice of defects. You will find a template below.

According to the Swiss Code of Obligations (OR), the tradesman has three options as to how he can proceed following a complaint: He can rectify the defect, grant a price reduction or agree to a conversion.

Rework

The craftsman may decide to rectify the defect. He will repair the problem area free of charge until it corresponds to the quality ordered. This is the most popular option for both parties, especially for minor defects.

Price reduction

If the tradesman does not want to or cannot carry out the repair himself, he must grant the client a price reduction. The amount of this discount usually depends on how expensive the repair would be on the market.

Conversion

If, for you as the client, the building is unusable or does not fulfill its purpose and an improvement would only be possible with a new building, the craftsman can agree a conversion with you. Conversion is only possible if dismantling is realistically feasible. In Switzerland this option is chosen less often than the option of a repair or a price reduction.

When do defects need to be reported at the latest?

If you discover a defect during acceptance, you must report it immediately. However, not all defects can be discovered – if a construction defect only becomes visible after acceptance, we speak of a hidden construction defect.

These defects only come to light weeks, months or even years after acceptance. Examples include inferior or incorrect insulation that allows heat to escape or paints and varnishes that peel off after a short time.

You can also claim construction defects after the handover, but there are clear deadlines for this:

• After regular acceptance by both parties, a notification period of 2 years applies for obvious defects and 5 years for hidden defects. According to SIA standard 118, these are the timelines in which you can still report building defects.
• If there is no acceptance, but only a handover, for example, the Swiss Code of Obligations (OR) applies. Article 371 of the Swiss Code of Obligations allows you as the building owner a 2-year notification period for construction defects for movable buildings and 5 years for immovable buildings. After that, your claims expire.
• A special case: If a construction company or its partner deliberately does not disclose defects, the limitation period is extended to 10 years. Thereafter, however, no further notification of defects is permitted.

How can BMapp help with construction defects?

Precise documentation is crucial in order to find and rectify construction defects. With BMapp, you can mark defects directly on the plan in the app during acceptance to record defects.

You can define a person or company responsible from the list of contacts. Take pictures on site and note down directly in the app what is faulty and how it can be rectified.

You can use the to-do list to keep track of all outstanding defects and set reminders so that you don’t miss any deadlines.

Recording defects takes time. With manual documentation, defects can be forgotten or not sufficiently documented. BMapp gives you a quick overview. This allows defects to be recorded efficiently and all work with tradesmen to be coordinated easily.

What happens if you can’t reach an agreement?

If you discover defects during acceptance, report them. The tradesman or contractor is then responsible for rectifying the defect.

If both parties cannot reach an agreement, a notice of defects is issued in accordance with Article 370 of the Swiss Code of Obligations (OR) or SIA Standard 118 (“General Conditions for Construction Work”).

What is the legal procedure for a notice of defects?

A notice of defects is not bound to any form, which is why a simple letter is generally sufficient. However, the complaint must be substantiated and describe the defect as precisely as possible.

According to Art. 166 of SIA Standard 118, a defect exists if warranted or agreed properties or properties that the client could expect (justified expectations; professional performance) are missing.

According to prevailing practice, however, you must not only state the defect in your notice of defects, but also declare that you are holding the supplier or builder liable.

The following points must be included:

• Recipient (the correct contractual partner such as the seller or the contractor)
• Title “Notice of defects”
• The defects must be described precisely and in detail. Attention: The notification of defects must be prepared and sent as soon as possible
• Notice that you are holding the supplier or building contractor liable
• Notice of defects must be signed by hand

Complaint template download here

Download our template for notices of defects here. Our template is based on the Swiss standard (SIA 118). You can use our sample letter to create a legally compliant notice of defects in accordance with the SIA standard and the OR.

This is how you proceed:

1. Download the template and edit it in your word processing program such as MS Word or Pages (macOS).
2. Add the items mentioned above such as recipient and description. Clearly state the defects: How do the defects manifest themselves, what was agreed and where are the defects?
3. List the defects and set a reasonable deadline for rectification or improvement.
4. Print out your document, sign it by hand and send the complaint by registered mail.

Document and rectify defects more easily – with BMapp

With the right app, it is easier and safer for building owners and site managers to document defects on the construction site and monitor their rectification. With BMapp, you can record defects in the app during acceptance, document them, add photos and responsible parties, and monitor the rectification using to-do lists and reminders.