Focus area · Construction law

Construction damages & liability.

When damage occurs on a construction project, the clean assignment of responsibility decides your claims. We clarify who is answerable and enforce damages, from clarifying the cause to construction litigation.

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BRANDAUER Rechtsanwälte

Salzburg law firm for real estate, construction and corporate law

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Damages can come alongside the warranty. Unlike the warranty, they require fault, but in return often reach further: they cover consequential losses to other property and can exist once the warranty period has expired.

On a construction project, planning, execution and supervision work together, so the clean assignment of responsibility is often the key. Anyone who publicly professes a profession is liable under section 1299 ABGB for a strict, profession-specific standard of care. If the shares cannot be separated, joint and several liability under section 1302 ABGB comes into play.

This page orders the parties, their standards of liability and the deadlines. The guide below helps you assess the responsibility for your construction damage, but does not replace an examination of the individual case.

Assess responsibility

Who is liable for your construction damage?

Answer one or two questions about the likely cause. You will receive a first, non-binding assessment of who on the project might be answerable.

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01 Question 1

Who, in your assessment, caused the damage?

On a construction project, planning, execution and supervision work together. For professionals, section 1299 ABGB applies a strict, profession-specific standard of care.

All paths at a glance

Overview of all answers.

For planning and structural design errors the strict standard of section 1299 ABGB applies.

Planners, architects and structural engineers publicly profess a profession and are therefore liable under section 1299 ABGB for profession-specific, not merely ordinary, care. A planning or structural design error for which they are responsible gives rise to a damages claim under section 1295 ABGB that also covers consequential losses.

The decisive points are proof of the specific breach of duty and of the causal link with the damage, which usually requires an expert opinion. Secure the plans, the tender documents and the correspondence.

For a pure execution error, warranty and damages exist alongside each other.

If there is a pure execution error by the contractor, you can demand warranty remedies regardless of fault, that is repair, price reduction or rescission. For consequential losses to other property that go beyond this, a fault-based damages claim under section 933a ABGB additionally comes into play.

Cleanly separate the defect itself and the consequential loss and document both. While the warranty runs for three years from handover, damages follow their own deadlines under section 1489 ABGB.

Despite your own instruction, the contractor may be liable for breaching its duty to warn.

Even if the error rests on materials or instructions you supplied, the contractor is liable under section 1168a ABGB if the material or instruction was evidently unsuitable and it did not warn you. The duty to warn falls on the professional, who must recognise the unsuitability.

Your own contribution may, however, lead to a proportionate reduction as contributory fault under section 1304 ABGB. Have it checked whether a warning was omitted and how responsibility is to be weighted.

Supervision errors by the site supervision often lead to liability alongside the contractor.

The local site supervision owes the proper supervision and coordination of the works and is liable under section 1299 ABGB for the care required in doing so. If it overlooks a recognisable execution error, it can be liable alongside the contractor.

If the causal shares of several parties cannot be separated, they are jointly and severally liable under section 1302 ABGB: you can hold any of them for the whole damage. An expert opinion clarifies the shares.

If several parties are involved or the cause is unclear, an expert opinion clarifies liability.

On a construction project, planning, execution and supervision work together, so the cause of damage can rarely be assigned clearly from the outside. An expert opinion clarifies the breach of duty, the cause and the shares of the parties involved.

If the shares cannot be determined, the parties are jointly and severally liable under section 1302 ABGB. Your own contributory fault under section 1304 ABGB may reduce the claim. Secure the evidence early, before any repair is carried out.

All recommendations at a glance

For planning and structural design errors the strict standard of section 1299 ABGB applies.

For a pure execution error, warranty and damages exist alongside each other.

Cleanly separate the defect itself and the consequential loss and document both. While the warranty runs for three years from handover, damages follow their own deadlines under section 1489 ABGB.

Despite your own instruction, the contractor may be liable for breaching its duty to warn.

Supervision errors by the site supervision often lead to liability alongside the contractor.

If several parties are involved or the cause is unclear, an expert opinion clarifies liability.

Liability at a glance

Who is answerable for what on the building site

Construction damage often has several possible causes. The table orders the typical parties, their sources of error and the applicable standard of care.

Parties, typical errors and bases of liability for construction damages
Party	Typical error	Standard of liability
Planning Planners and architects	Planning and tender errors	Profession-specific care under section 1299 ABGB
Structure Structural engineers	Errors in the structural design	Strict standard of care under section 1299 ABGB
Execution Contractor	Execution errors, breach of the duty to warn	Damages under sections 933a, 1168a ABGB
Supervision Local site supervision	Supervision and coordination errors	Profession-specific care under section 1299 ABGB

If the causal shares of several parties cannot be separated, they are jointly and severally liable under section 1302 ABGB. Contributory fault of the building owner can reduce the claim proportionately under section 1304 ABGB. The table offers an overview and does not replace an examination of the individual case.

Defect loss and consequential loss

Damages in construction build on the distinction between the defect in the work itself and the consequential losses arising from it. The defect loss is the defect in the structure, for example a leaking roof. The consequential loss is the further loss to other property, for example furniture soaked by penetrating water.

The warranty removes the defect itself, regardless of fault. Damages under section 933a ABGB reach further and also cover consequential losses, but require fault on the contractor’s part. The basis of general damages is section 1295 ABGB. Both routes can exist alongside each other.

Who is liable and by which standard

Responsible is whoever has breached a contractual or professional duty of care. Anyone who publicly professes a profession, such as an architect, structural engineer or site supervisor, is liable under section 1299 ABGB for profession-specific, not merely ordinary, care. This strict standard applies equally to planning, structure and supervision.

The contractor is additionally subject to a duty to warn under section 1168a ABGB: if a material supplied by the client or an instruction is evidently unsuitable, it must warn, otherwise it is liable despite the instruction. For the conduct of its people, each party answers as for its own under section 1313a ABGB.

Fault, contributory fault and proof

A damages claim requires a breach of duty, fault and the causal link between the error and the damage. Causation in particular is often hard to establish in construction, because several causes interact. Experts play a central role in clarifying it.

A contribution by the building owner, such as a faulty instruction or a delayed response, can reduce the claim proportionately under section 1304 ABGB. If the causal shares of several parties cannot be determined, they are jointly and severally liable under section 1302 ABGB; you can then hold any of them for the whole damage.

Deadlines for damages

Damages follow their own deadlines. Under section 1489 ABGB they become time-barred three years after knowledge of the loss and the party causing it, and at the latest after thirty years. A damages claim may therefore still be open once the three-year warranty period under section 933 ABGB has expired.

Particularly for long-hidden construction damage this route gains importance. Because the start of the period, that is the moment of sufficient knowledge, is often disputed in an individual case, you should have your claims checked and the evidence secured early.

This page offers a general overview of the Austrian legal position and does not replace advice in an individual case. Fault, causation and shares of causation are often disputed in an individual case.

Frequent questions

Construction damages and liability.

What is the difference between warranty and damages? +

The warranty is liable regardless of fault for the freedom of the work from defects and restores the contract-compliant state. Damages under section 933a ABGB require fault, but also cover consequential losses to other property and can exist once the warranty period has expired. Both claims are often pursued alongside each other.

Is the architect liable for a planning error? +

Anyone who publicly professes a profession is liable under section 1299 ABGB for profession-specific care. If there is a planning error and the architect is responsible for it, liability under section 1295 ABGB comes into play. The specific breach of duty and the causal link with the damage must be clarified, for which an expert opinion is usually indispensable.

How long can I claim damages? +

Damages claims become time-barred under section 1489 ABGB three years after knowledge of the loss and the party causing it, and at the latest after thirty years. Because the start of the period is often disputed in construction, you should have your claims checked early. A claim may still exist once the warranty period has expired.

What does contributory fault mean? +

If the injured party has contributed to the damage, for example through a faulty instruction or a delayed response, their claim can be reduced proportionately under section 1304 ABGB. Both sides then bear the damage in proportion to their causation; if the proportion cannot be determined, in equal shares.

Several parties caused the damage, whom can I turn to? +

If the causal shares of several parties cannot be determined, they are jointly and severally liable under section 1302 ABGB. You can then hold each individual for the whole damage; the internal settlement takes place between the parties. If the shares are determinable, however, in the case of mere negligence each is liable only for the part it caused.

In depth

Articles and tools on this focus area

Warranty or damages

The two routes compared: the fault-independent claim and compensation for consequential losses under section 933a ABGB.

Construction defects after handover

Which deadlines under section 933 ABGB run from handover, who must prove what and which claims exist.

Neighbour law and immissions

When damage or interference emanates from the building site: the neighbour’s claims and their limits.

Preserving evidence before litigation

How to secure the cause of damage and the condition before repair is carried out and evidence is lost.

Expert opinion in a construction dispute

What role expert opinions play in cause, fault and the shares of causation.

Tool: warranty or damages

Assess your case and see which claim holds in your situation.

This might also affect you.

Construction defects and warranty

Identify, notify and enforce defects in the building. Remedy, price reduction, rescission and the warranty periods under Austrian civil law.

Handover and notice of defects

Acceptance of the works, the handover protocol, timely notice of defects and dealing with hidden defects.

Construction litigation and evidence preservation

Secure evidence before it is built over: judicial preservation of evidence, court experts and the preparation of construction litigation.

Risk check

Construction project risk analysis

Role-based risk axes, one radar chart: see the overall level, top-3 risks and next steps for your project.

Start the risk analysis

Damage on the building site, the cause unclear?

In construction law, clarifying the cause and the deadlines decide. Call us directly or write to us, with a callback within one business day.

+43 662 6280000 [email protected] Book initial consultation (72 euros)

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BRANDAUER Rechtsanwälte GmbH Giselakai 51 5020 Salzburg

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