Last update 16.09.2021
After buying a property, the new owner may be dissatisfied with it for any number of reasons, notably because of defects in its construction.
Upon discovering a construction defect, the first thing to do is to report it, and then, if necessary, ask that it be made good.
Who is concerned
A construction defect may affect the owner of:
- a ready-built property (a house, an apartment, etc.);
- a property built by a construction company, possibly under the supervision of an architect;
- an off-plan property;
- a building they have already moved into.
Guarantees in construction
In principle, constructor vendors are liable for 10 years, or sometimes for 30 years, from the date of acceptance by the buyer for the major works, such as:
- outside walls and ceilings;
- all water piping in a building;
- central heating system;
- water supply;
- water drains;
- the façade, which should provide effective thermal and noise insulation;
- floor screeds;
- plaster work, if done to a very poor standard;
- any metal constructions and engineering structures attached to the ground that require that studies, mock-ups, technical calculations and drawings be carried out or prepared according to best technical practices;
- chimneys and chimney flues;
- balcony tiles;
- the concrete slab between the cellar and terrace overlaps.
They are liable for 2 years as of the buyer's acceptance of the finishing works, such as:
- wood panelling;
- doors and window frames;
- radiators and interior wall coverings.
How to proceed
Reporting a construction defect
Anyone who discovers a construction defect must report it as soon as possible to the seller or builder/construction company, so they can acknowledge the defects.
There are various ways to report a construction defect:
- friendly report;
- report by a bailiff;
- report by expert assessment;
- report by legal expert assessment.
This is the ideal situation, in which the seller or builder agrees to acknowledge the defects reported by the purchaser.
The report must be:
- made in writing; and
- signed by all interested parties (if the defect was caused by more than one company, all companies involved must sign the report).
Report by a bailiff
Reporting through a bailiff as an intermediary provides a preliminary trail of evidence in case any dispute should arise.
This report may be:
- adversarial, i.e. the seller or builder/construction company is summoned and shows up;
- unilateral, i.e. the seller or builder/construction company is summoned, but fails to show up, in which case the bailiff will prepare the report alone.
The bailiff's role is merely to record the existence of the problem. They will not determine how it is to be remedied, or the cost of reparation.
Report by expert assessment
In Luxembourg, legal experts belong to a particular professional group depending on their area of expertise.
If the seller or builder/construction company agrees to take part in that assessment, then the extrajudicial assessment is adversarial.
The expert can record the reported defects, rule on their causes and origins, determine how they are to be remedied, set the cost of repairs and, where applicable, determine the loss in value.
Report by legal expert assessment
Sometimes, the seller or builder/construction company does not respond to the report submitted by the owner. In that case, the owner may demand an adversarial legal expert assessment.
This procedure is quick and is carried out by way of a summons to appear before the summary court, delivered by a court officer/bailiff.
There is no need to engage the services of a lawyer admitted to the bar.
Conclusive value of expert assessments
There are 3 types of assessments, each of which carries a different level of conclusive value:
- a legal expert assessment is commissioned by the Court. The appointed legal expert must comply with the adversarial principle. The expert carries out the necessary inspections and tests in the presence of the parties, who have the opportunity to present their own observations.
The legal expert assessment is always binding on the parties who are present, or represented, at the inspection. The judge is not be bound by the expert's findings or conclusions, but will rarely stray from their opinion, and will only do so with caution if there is reason to suspect a mistake in the report or in the inspection process.
In principle, the legal expert assessment is not binding on the parties who were not present, or represented, at the inspection. However, it will not be automatically excluded from the deliberations owing to the sole fact that it was conducted unilaterally, if the parties were informed of the inspection in good time, and the findings were freely discussed by the parties as part of the process. In these circumstances, the expert opinion constitutes an element of proof among others.
- a unilateral expert assessment is carried out by one of the parties to support their own claims, without the other parties having been invited to take part in the inspection and/or present their own observations.
A unilateral expert assessment may constitute an element of proof among other when it has been duly reported and subject to free discussion by the parties as part of the process. However, the conclusive force of a unilateral expert assessment is less than that of a legally ordered assessment, or that of an adversarial assessment by mutual agreement.
- an adversarial assessment by mutual agreement may be carried out at the initiative of any or all of the parties. The expert carries out the necessary inspections and tests in the presence of the parties, who have the opportunity to present their own observations.
The information unearthed in the course of the inspection must be subject to a full and objective discussion. The parties' observations must be taken into account by the expert. When the adversarial principle has been sufficiently respected, the adversarial assessment carried out by mutual agreement is binding on the parties who took part in the inspection. If the adversarial principle has not been observed, the expert report can only be taken into account for information purposes during legal proceedings.
Seeking reparation in the case of a construction defect
If they have been unable to reach an agreement with the seller or builder, the owner may bring legal proceedings.
If the value of the damage in question is less than EUR 15,000, the Magistrate's Court (Justice de paix) is the competent court.
If the value of the damage in question is greater than EUR 15,000, then the case for reparation must be filed with the District Court by a lawyer summoned to the bar.
It is crucial that a written acceptance report be produced, in which the owner describes, in detail, any reservations they had at the time on acceptance of the building. This must not be confused with the completion report that is required by law when a building is sold off plan, and which is always followed by an acceptance report.
The legal procedure to seek reparation for construction defects is, in principle, initiated against the seller or builder/construction company, and possibly against the architect, subcontractor, 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 builder, 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.