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Epaminaidos26 Sep 2017 22:16Hello everyone,
It has now been 4 years and 9 months since we took over our developer-built house. Just before the warranty period expires (as agreed under the Building Code), unfortunately, a roller shutter is defective (strap-operated): it is gradually tearing apart between two slats.
Of course, we first contacted the developer. They no longer want to fix the defect for free, stating it is a mechanical damage that could have resulted from normal wear and tear or incorrect handling. Furthermore, they explain that the 5-year period only covers defects directly attributable to the developer. Specifically, the regulation does not mean that "the use and lifespan of individual parts that require special maintenance or care, or that typically have a shorter service life, must last for 5 years as well."
Is this correct? Or are they still obligated to repair it?
The developer built around 80 single-family houses here, and in the neighborhood, roller shutters are failing in large numbers. Unfortunately, the manufacturer is now bankrupt, so the developer cannot simply pass on the costs.
Thank you very much for any help!
It has now been 4 years and 9 months since we took over our developer-built house. Just before the warranty period expires (as agreed under the Building Code), unfortunately, a roller shutter is defective (strap-operated): it is gradually tearing apart between two slats.
Of course, we first contacted the developer. They no longer want to fix the defect for free, stating it is a mechanical damage that could have resulted from normal wear and tear or incorrect handling. Furthermore, they explain that the 5-year period only covers defects directly attributable to the developer. Specifically, the regulation does not mean that "the use and lifespan of individual parts that require special maintenance or care, or that typically have a shorter service life, must last for 5 years as well."
Is this correct? Or are they still obligated to repair it?
The developer built around 80 single-family houses here, and in the neighborhood, roller shutters are failing in large numbers. Unfortunately, the manufacturer is now bankrupt, so the developer cannot simply pass on the costs.
Thank you very much for any help!
Standard legal response, Type A: "It depends...!"
The construction company's statements are not entirely unreasonable but miss the point here.
In my opinion, two main factors are relevant:
1. For a warranty defect, the defect must have already existed at the time of acceptance, meaning it was latent and present all along but only became apparent later.
If the item was initially fine and only deteriorates over time, this would not be a warranty defect!
(The argument about maintenance does not hold unless specific maintenance requirements can be proven.)
2. After acceptance, the burden of proof changes for
a) the existence of a defect ("whether" the defect exists)
b) and whether the defect was already present at acceptance ("when" the defect existed).
After acceptance, the (procedural) burden of proof (in case of dispute, which apparently applies here) legally shifts to the client, i.e., you.
The crucial factual question now is:
Was the defect already present back then?
Well, this can probably only be answered by an expert, if at all. An indication supporting this is that all the roller shutters in the 80 houses are failing simultaneously. It would therefore be helpful to find an intact example from another manufacturer. Then, through the so-called "prima facie evidence," a further reversal of the burden of proof—now in your favor—might be achieved.
If the construction company refuses, only setting a deadline, delay, filing a lawsuit, or (before that) a court-ordered evidence preservation procedure will help. Only a court can then suspend the statute of limitations.
If necessary, join forces with other affected parties and consult a specialist attorney.
The construction company's statements are not entirely unreasonable but miss the point here.
In my opinion, two main factors are relevant:
1. For a warranty defect, the defect must have already existed at the time of acceptance, meaning it was latent and present all along but only became apparent later.
If the item was initially fine and only deteriorates over time, this would not be a warranty defect!
(The argument about maintenance does not hold unless specific maintenance requirements can be proven.)
2. After acceptance, the burden of proof changes for
a) the existence of a defect ("whether" the defect exists)
b) and whether the defect was already present at acceptance ("when" the defect existed).
After acceptance, the (procedural) burden of proof (in case of dispute, which apparently applies here) legally shifts to the client, i.e., you.
The crucial factual question now is:
Was the defect already present back then?
Well, this can probably only be answered by an expert, if at all. An indication supporting this is that all the roller shutters in the 80 houses are failing simultaneously. It would therefore be helpful to find an intact example from another manufacturer. Then, through the so-called "prima facie evidence," a further reversal of the burden of proof—now in your favor—might be achieved.
If the construction company refuses, only setting a deadline, delay, filing a lawsuit, or (before that) a court-ordered evidence preservation procedure will help. Only a court can then suspend the statute of limitations.
If necessary, join forces with other affected parties and consult a specialist attorney.
In my old apartment, I had this issue too, but the blinds were about 20 years old.
By the time I finished writing this post, a professional would have already removed that slat and pushed the others together. The cost is around 120-150€.
Is it worth a legal dispute to you?
By the time I finished writing this post, a professional would have already removed that slat and pushed the others together. The cost is around 120-150€.
Is it worth a legal dispute to you?
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Epaminaidos28 Sep 2017 09:46Thank you for the responses. Of course, this issue is not worth a legal dispute for me. But I also have nothing to give away for free.
The very detailed reply from Otus11 already provides the basis: simple arguments won’t get me anywhere; I would have to gather neighbors and jointly take action against the developer. In my opinion, that’s too much effort since a replacement costs only 160€ (about 170 USD).
The tip about the slat is definitely useful. I’ll have to check right away whether the roller shutter is long enough for that.
The very detailed reply from Otus11 already provides the basis: simple arguments won’t get me anywhere; I would have to gather neighbors and jointly take action against the developer. In my opinion, that’s too much effort since a replacement costs only 160€ (about 170 USD).
The tip about the slat is definitely useful. I’ll have to check right away whether the roller shutter is long enough for that.
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