Notice of defects and deadlines for construction: how to give effective notice

The notice of defect is the communication to the contractor that the work is defective. It is more than a complaint: with it you make clear that you do not accept the work as contractually compliant and that you demand a repair. A clear and provable notice is the basis for all further warranty remedies.

In substance the notice should describe the defect specifically. A blanket statement such as the bathroom is defective rarely suffices. Record which part of the work is affected, what the defect consists of and when it appeared. The more precise the description, the harder it is for the contractor to dispute the defect.

The deadline is equally important. You call on the contractor to repair the defect within a reasonable period. Only when this period lapses without result do the further routes such as price reduction or rescission open up. Without setting a deadline these secondary remedies generally do not apply.

In a consumer transaction there is no general obligation to give notice of a defect within a particular period. The warranty remains in place during the three-year period under section 933 of the Austrian Civil Code (ABGB), even if you wait before giving notice. Anyone who has a private home built therefore does not lose their claims merely because they report a defect only after a few weeks.

Nevertheless, a prompt and written notice is advisable here too. The reason is the evidentiary position: the longer you wait, the harder it later becomes to prove that the defect was already present at handover. A timely notice secures evidence and observes the period within which you must, if necessary, enforce your claims in court.

The position is different in a two-sided business transaction. Here the duty to give notice under section 377 of the Austrian Commercial Code (UGB) applies. You must inspect the work after delivery and give notice of a defect without undue delay. Anyone who breaches this duty risks losing warranty and damages claims. What counts as undue delay depends on the individual case and on the nature of the defect.

For a building the warranty period under section 933 ABGB is three years from handover. Within this period you must assert your warranty claims, if necessary in court, where the contractor does not repair voluntarily. The notice itself does not suspend this period. It therefore does not replace a timely action but prepares it.

For the first six months from handover a presumption under section 924 ABGB applies: if a defect appears in this period, it is presumed to have been present at handover. During this phase the contractor must prove the contrary. After that the burden of proof shifts. An early notice uses this favourable phase and documents the defect while the presumption still applies.

In a business transaction the deadline under section 377 UGB is added. It requires a notice without undue delay after discovery of the defect. Hidden defects must be reported immediately once they emerge. This short deadline runs independently of the three-year warranty period and is in practice the most frequent stumbling block for businesses.

A handover protocol is advisable at acceptance. Open defects, that is to say those recognisable at acceptance, should be recorded in it. This protects you against the contractor later claiming that the defect only arose after handover. The protocol is an important piece of evidence for the condition of the work at the time of acceptance.

Hidden defects that were not recognisable at acceptance remain covered within the warranty period, even if they are not noted in the protocol. As soon as such a defect appears you should give notice of it quickly and in a provable form. In a business transaction the short deadline under section 377 UGB begins to run once the defect emerges.

Where ÖNORM B 2110 has been agreed, supplementary rules apply, for example on acceptance within a particular period. The ÖNORM does not apply automatically but only on express agreement. The rights you have after acceptance are explored on our focus page on handover and notice of defects.

The first mistake is the purely verbal complaint. Anyone who mentions the defect only on the phone or on site has no evidence in a dispute. A provable form is therefore indispensable. The second mistake is too vague a description, which leaves the contractor room for excuses.

A further mistake lies in the self-help repair. Anyone who has the defect remedied themselves or by another firm before the contractor has had the opportunity to repair it often loses the right to reimbursement. Exceptions apply only in urgent cases such as acute water damage. When in doubt you should have this clarified beforehand.

Finally, businesses frequently underestimate the short deadline under section 377 UGB. Anyone who inspects and gives notice of a work only weeks after delivery may already have lost their claims. A prompt inspection and notice is therefore mandatory in a business transaction.