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Construction litigation and evidence preservation

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

Construction litigation stands or falls on the evidence. Often the decisive condition has already been built over, remedied or altered before a court can see it. Anyone who cannot prove the defect often loses the case for that reason alone.

We prepare construction proceedings in a structured way: preservation of evidence, court-appointed experts, written submissions and, where it makes sense, an out-of-court settlement. The aim is a solid body of evidence before any hearing takes place.

Securing evidence before it disappears

The most important tool is the judicial preservation of evidence under the ZPO (Code of Civil Procedure). A court-appointed expert records the condition before it changes. Alongside this, private opinions, photographic documentation and witnesses can support the body of evidence.

  • judicial preservation of evidence by an appointed expert
  • private opinion for an initial assessment and as leverage
  • complete photo and video documentation with dates
  • securing of construction files, plans and correspondence

The typical course of events

Before the action there is usually a written request setting a deadline. If it remains unsuccessful, preservation of evidence and the action follow. In the proceedings the expert opinion is regularly the centrepiece, often discussed at the hearing.

  • request and deadline set for the contracting partner
  • judicial preservation of evidence where loss of evidence is threatened
  • filing of the action and motions for evidence
  • opinion, hearing, settlement or judgment

The role of the court-appointed expert

The court-appointed expert prepares findings and an opinion on the cause, scope and remediation costs of the defect. These findings strongly shape the outcome of the proceedings. We prepare the right questions and review the opinion critically.

How we support you

  • assessment of whether and when preservation of evidence makes sense
  • filing the application and attending the expert appointment
  • assessment of the prospects of success and the cost risk
  • representation in settlement talks and in construction litigation

This article provides a general overview of Austrian law and does not replace advice in an individual case. The specific circumstances of your construction project are always decisive.

Frequently asked questions

What clients often ask.

When is judicial preservation of evidence worthwhile? +
Whenever a defect is at risk of being built over, remedied or altered and its condition could otherwise no longer be established. It secures the evidence through an expert before the traces disappear. We assess whether the step is proportionate in your case.
How long does construction litigation take? +
That depends heavily on the amount in dispute, the number of defects and the complexity of the opinion. Construction proceedings not infrequently drag on over several years. A well-prepared settlement can lead to a result considerably faster.
Is a private opinion enough in court? +
In the proceedings a private opinion is not expert evidence in the narrow sense but qualified party submissions. It is valuable for assessment and in settlement, yet it usually does not replace the court-appointed opinion. Often the combination makes sense.
What cost risk do I bear? +
Whoever loses bears in principle the costs of both sides, including the expert costs. We assess the risk in advance and clarify whether a legal expenses insurance applies. A settlement is frequently the economically safer solution.
Related topics

This may also be relevant to 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.

Construction contract and remuneration

Works contract, lump-sum and unit prices, additional orders, final invoice and enforcing or defending remuneration claims.

Developer contract and BTVG

Protection of buyers under the Austrian Developer Contract Act: instalment schedule, security models, escrow and unwinding when problems arise.

Defects, a remuneration dispute, looming litigation?

In construction law, deadlines and evidence decide. Call us directly or send an email, callback within one business day.

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

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Address

BRANDAUER Rechtsanwälte GmbH Giselakai 51 5020 Salzburg