For most people, purchasing a home is a major operation that can burden their budget for a certain time. Once the dwelling has been purchased, owners can sometimes be confronted with a number of inconveniences of a more or less serious nature, after or even before moving in.
In addition, the issue of construction defects is highly complex, given that it is governed by many different laws, and complemented by case law that is not always unequivocal.
When problems arise, the first step to take is to report them, and then seek reparation if necessary.
Who is concerned
The following categories of individuals may be confronted with this type of situation:
- purchasers of a ready-built house;
- purchasers of a house that they have had built by a construction company, possibly under the supervision of an architect;
- purchasers of a building in progress;
- owners who have already moved into their house.
How to proceed
Reporting a construction defect
Anyone who experiences a construction defect is strongly advised to report it as soon as possible. In your exchanges with the seller/constructor, courtesy is secondary. What is important is getting them to openly acknowledge the reported problems.
A construction defect may be reported in several ways.
This is the ideal situation, in which the seller or constructor agrees to acknowledge the defects reported by the purchaser.
This report must be made in writing and signed by the two parties.
Report by bailiff
This procedure is used to establish initial evidence should a dispute arise.
This report can be made in the presence of both parties, when the seller or constructor has been summoned and complies.
If such is not the case, the report is unilateral.
It should be noted that the bailiff—see the Chamber of Bailiffs (Chambre des huissiers de justice) website—can only report the problem, and is not able to determine the means of remedy or the cost of reparations.
Report by expert assessment
Legal experts belong to an association that groups them according to their area of expertise (see the Chamber of Experts website).
If the seller or constructor agrees to take part in this expert assessment, it will be an out-of-court adversarial assessment in which the expert can point out the reported defects, issue a statement on the causes and origins of the defects, determine the means of remedy and set the cost, and possibly a loss in value.
Report by legal expert assessment
It may happen that the seller or constructor does not respond to the owner's reports. In that case, the purchaser is advised to seek a legal adversarial assessment.
This procedure is quick and is carried out before the summary court. The proceedings are conducted by the court bailiff and are relatively inexpensive.
It is recommended, however, to hire lawyer.
Legally speaking, a report and, if necessary, an adversarial assessment, have significant value as legal evidence in a court of law.
Some case law findings consider that the report and/or unilateral expert assessment are not enforceable against against the opposing party and/or parties, while another case law findings consider them as evidence, provided they were freely discussed during the court proceedings.
Reparation in the case of construction defect
When the owner is not able to reach an agreement with the seller or constructor, the owner has no recourse other than to take legal action.
A legal action for reparation is normally filed with the District Court (Tribunal d’arrondissement), unless the amount of damages exceeds EUR 10,000. In that case, the Magistrate's Court has competence.
The procedure is initiated through a court lawyer, is relatively expensive, and can last from one to one and a half years, unless appealed.
The importance of written acceptance should also be underscored. In such a document, the owner lists in detail any reservations they may have before acceptance of the building.
Such acceptance should not be confused with the completion report, which is provided for by law for the sale of a building that is yet to be constructed.
The completion report only confirms the absence of material compliance defects and the absence of defects and poor workmanship that would make the building and its fittings unsuitable for their intended use.
This completion report must always be followed by an certificate of acceptance in due form.
The legal action is generally taken against the seller or the constructor, but may also be taken against the architect, subcontractors, etc.
An owner may also petition for:
- reparation in kind of the reported defect;
- reparation by equivalent (i.e. compensation in the form of damages and interest) set by an expert, when an owner legitimately loses all confidence in the seller or the constructor, or when the latter have no intention or are incapable of making the recommended reparations;
- where applicable, a reduction in price;
- where applicable, the cancellation of the sale, given the seriousness of the defects in question.
Sellers and constructors are generally liable for 10 years—and in some cases for even 30 years—as of the acceptance of the major works, such as, for example:
- outside walls and ceilings;
- all water piping in a building;
- central heating system;
- water supply;
- the water drains;
- the façade providing efficient thermal and noise insulation;
- floor screeds;
- plaster work, at least if work has been very poorly done;
- any metallic constructions and engineering structures attached to the ground that require preparation of studies, mock-ups, technical calculations and drawings;
- chimneys and chimney flues;
- balcony tiles;
- the concrete slab between the cellar and terrace overlaps;
They are liable for two years as of the acceptance of the finishing works, such as, for example:
- wood panelling;
- doors and window frames;
- radiators and interior wall coverings.
Who to contact
Order of Architects and Consulting Engineers6, boulevard Grande-Duchesse Charlotte
Phone : (+352) 42 24 06Fax : (+352) 42 24 07Mon.-Fri. from 9.00 to 12.00 and from 14.00 to 16.00
Luxembourg and Diekirch Bar