Construction defects after handover: what building owners can claim now

A construction defect exists where the building does not have the contractually agreed quality or the quality ordinarily required. What matters first is what you specifically agreed with the contractor: plans, the scope of services, the samples chosen and the building description form the target condition. Where the actual condition deviates from this, there is a defect.

Where there is no express agreement, the ordinarily required quality applies. A residential building must be watertight, structurally sound and built according to the recognised rules of technology. A heating system must heat, a roof must protect against rain. If the work falls short of this standard, a defect exists even without a special arrangement.

Not every imperfection is a defect in law. Mere matters of taste or deviations that do not impair use or value generally do not give rise to an enforceable claim. Conversely, visual impairments are relevant where a particular execution was agreed. This classification is often the first point of dispute.

For immovable property, that is to say a building, the warranty period under section 933 of the Austrian Civil Code (ABGB) is three years. It begins with the handover or delivery of the work. Within these three years you must assert your warranty claims, if necessary in court, where the contractor does not remedy the defect voluntarily.

The period runs even where a defect is not yet visible. What matters is not when you discover the defect, but that the defect was already present in essence at handover. A hidden construction fault that only manifests as moisture damage after two years is therefore in principle still covered, provided you act in time.

The warranty is independent of fault. You therefore do not need to prove any misconduct on the part of the contractor. It is enough that the work is defective and that the defect stems from a cause that already existed at handover. This distinguishes the warranty from a damages claim, which requires fault.

For the first six months from handover, section 924 ABGB provides for a presumption: if a defect appears in this period, it is presumed to have been present at handover. During this phase the contractor must prove that the work was free of defects at handover if it wishes to defend against the claim.

After these six months the burden of proof shifts. You as the customer must then prove that the defect already had its cause at the time of handover. Particularly with hidden defects, timely preservation of evidence becomes the decisive step, because an expert can often only establish the cause from the condition that has not yet been repaired.

By accepting the work you do not confirm that it is free of defects. Open defects, recognisable at acceptance, should be recorded in the handover protocol. Hidden defects that only appear later remain covered within the warranty period, even if they are not noted in the protocol.

In consumer transactions there is no general obligation to give notice of defects within a particular period. The warranty remains in place during the three years. Nevertheless, for evidentiary reasons it is advisable to report a defect quickly and in writing. In transactions between two businesses, by contrast, the duty to inspect and give notice under section 377 of the Austrian Commercial Code (UGB) applies: here defects must be reported without undue delay.

How to phrase such a notice and which time limits matter are explored in our article on the notice of defects and its deadlines. An overview of the whole topic is provided on our focus page on construction defects and warranty.

Document the defect comprehensively: photographs, the date, a description and, if possible, the circumstances in which it appeared. Keep the contract, the building description and the final invoice to hand. These documents form the basis for the legal classification.

Notify the contractor of the defect in writing and call on it to repair within a set deadline. A provable form, such as a registered letter or an email with confirmation of receipt, protects you later in the event of a dispute. As far as possible, do not alter the defective condition before the cause has been clarified.

If the contractor does not respond or denies the defect, early legal advice is sensible. It can often be clarified whether a private expert opinion, judicial preservation of evidence or a direct action is the right path. Booking an initial consultation (EUR 72) can quickly create clarity.