Preserving evidence before construction litigation: secure the condition before it vanishes

With a building the condition changes constantly. A defect visible today may disappear tomorrow beneath screed, plaster or a repair. With the original condition the proof is also lost of what the defect looked like and what it stems from. In later proceedings, however, the burden of proof regularly lies with the customer that the defect was already present at handover.

Added to this is the pressure of time. The warranty period for a building under section 933 ABGB is three years from handover. Six months after handover the burden of proof shifts to your disadvantage. From that point you must prove that the cause already existed at handover. For this an expert needs the condition that has not yet been repaired.

Preservation of evidence means recording this fleeting condition before it disappears. Depending on the situation, this happens through your own documentation, a private expert opinion or judicial preservation of evidence. Which path works depends on how urgent the matter is, how the contractor reacts and how robust the evidence has to be.

Judicial preservation of evidence is governed by sections 384 to 389 ZPO. It is admissible where it is to be feared that a means of evidence will be lost or its use made more difficult. In construction this is typically the case where further building work would cover the defect or a repair would remove the original condition. The court examines whether this requirement is met.

Where it is met, the court appoints an expert. This expert documents the present condition, records the causes and estimates the cost of repair. The finding is neutral and arises with the involvement of both sides. This gives the result an evidentiary force that a one-sided private expert opinion cannot achieve in this form.

It matters what preservation of evidence does not do. It does not decide who is right and grants no claim. It only records the condition. The claims themselves are decided only in the main action. An overview of the whole area is provided on our focus page on construction litigation and preservation of evidence.

Alongside judicial preservation of evidence there is the private expert opinion. You instruct an expert yourself, without involving the court. This is generally quicker and possible without an application. The catch: in proceedings a private opinion counts only as qualified party submissions, not as full evidence. It is nonetheless valuable for substantiating your own claim and preparing the proceedings.

The simplest and quickest measure is your own documentation. Dated photographs, a precise description, the link to the contract and, where possible, witnesses record the condition before it changes. It does not replace an expert report, but in the first hours after a defect is discovered it is the most important immediate measure.

Which path is right depends on the individual case. A combination is often sensible: document yourself immediately, then, depending on the contractor’s conduct, a private opinion or judicial preservation of evidence. How a court report and a private report work in proceedings is explored in our article on the expert opinion in a construction dispute.

Record the defect immediately with dated photographs and a written description. Secure the contract, the building description, the final invoice and all correspondence with the contractor. Do not alter the defective spot as long as the cause has not been clarified.

Assess how urgent the situation is. Where building work or a repair threatens to cover the defect, swift action is needed. In such cases judicial preservation of evidence can be the right path, because its finding also holds up in later proceedings.

Keep the warranty period in view. Since preservation of evidence does not preserve any period, the main action must follow in good time. Booking an initial consultation (EUR 72) quickly clarifies which steps make sense and in which order.