By In Italian law, Italian Property, Italian Real Estate, Law, Law Firms in Italy, Off-Plan Property, Property law, Real Estate Law

Responsibility of The Contractor for Defects And/Or Variations in Construction Works

Responsibility of The Contractor for Defects And/Or Variations in Construction WorksThe best advice I can give you before entering into a contract with a construction or renovation company is to call your legal advisor to get a contract drafted between you and the company you have chosen to carry out the work. A professionally drafted contract is your best protection should any problems with the construction works arise.

Whether there are issues with defective material, poor execution of works, deviations from the agreed plan or a request for additional money, a professionally drafted contract in both English and Italian will prevent a lot of problems, reduce stress and often save you a considerable amount of money.

Below I have summarised the Italian legislation covering this topic:

The contractor is responsible for defects and unauthorised variation of construction works. If there are visible defects, you should not accept the works otherwise you will lose the right to claim on the guarantee (art. 1667, first paragraph of the Italian civil code).

In order to formally contest the construction works, you should request your legal advisor to notify the contractor through a formal letter of default. If you accept the works where there are visible defects and/or unauthorised variations of works, you will lose the right to trigger the guarantee – unless the contractor omitted the defects and variations maliciously. A contractor is considered to be acting maliciously if, despite being aware of the defects and/or variations, they have not been explicitly pointed out to the client.

HIDDEN DEFECTS

The acceptance of work does not compromise your guarantee if there are hidden defects. Such defects can be contested once they are discovered. In order to make a claim on the guarantee the client, through his lawyer, should do the following:

  • Report the hidden defects within 60 days of their discovery
  • Take legal action within 2 years from the end of works

If one of the two above mentioned obligations is not complied with, the client will lose guarantee cover. In cases where the contractor not only omits to point out the defects, but also behaves in a malicious manner in order to hide those defects, the time limit for legal action is extended to 5 years.

FAULT OF THE CONTRACTOR

Once the defects and/or the unauthorised variations have been proven, the fault of the contractor is considered as presumed and it becomes the contractor’s responsibility to prove absence of negligence.

GUARANTEE COVER

According to article. 1668 of the Italian civil code, in the case of visible or hidden defects the client is entitled to take 4 possible legal courses of action:

  • Request correction of the defects and/or variations, the total cost to be borne by the contractor
  • Request a reduction in price
  • If the variations or the defaults are very serious, request the dissolution of the contract and
  • Request compensation for damage.

RESPONSIBILITY OF THE CONTRACTOR FOR NEW BUILDINGS

Article 1669 of the Italian civil code provides particular regulations for new builds. In these cases, the contractor will be held liable for collapse (total or partial), evident danger of collapse or serious defects in the construction.

Jurisprudence extends this responsibility to include renovation works which can be expected to be durable e.g. paving and waterproofing on a roof. The contractor’s responsibility extends for a period of 10 years from the date of completion of the works. Any defective work should be contested formally with a letter drafted by your lawyer and addressed to the contractor within 1 year of discovering the defect.

Italian Law stipulates that the client has one year from the time of the recorded delivery of the letter of default to starting legal proceedings against the Contractor. Once serious defects are highlighted, the contractor is presumed liable unless able to prove the contrary.

EXAMPLES OF SERIOUS DEFECTS

There is a very significant jurisprudence defining the meaning of “serious defects”. In broad terms, serious defects are defined as seriously jeopardising the use of the property or having a significant impact on essential structural elements such as stability, efficiency and duration of works. Here are some examples of serious defects highlighted by the jurisprudence:

  • Detachment and rupture of a significant number of tiles
  • Defects concerning the roof of the property causing infiltrations of water
  • Defective heating system compromising the normal use of the property
  • Inadequate thermal insulation
  • Defects in the plumbing system
  • Defects of the chimney or flue compromising normal use of the property

INSPECTION OF CONSTRUCTION WORKS

Article 1665 of the Italian civil code provides the client with the option to inspect works before they are signed off. This right of inspection is also present during the execution of the work.

It is highly recommended to involve your lawyer and an independent surveyor in this process before accepting any work.

According to art 1665 par. 4, if the client accepts the works at the point of signing-off without requesting an inspection or without contesting the works, the works are presumed to be accepted. Works are also considered as implicitly accepted if the client accepts them without making any type of formal objection. The direct consequence of this is the loss of guarantee cover for visible defects or unauthorised variations, (an exception is made for maliciously undeclared works). At this stage, the contractor will be entitled to final payment for works.

If you are facing problems concerning your renovation or construction works, please do not hesitate to contact De Tullio Law Firm. We offer legal assistance throughout Italy. While it is always best to engage independent legal services prior to starting a renovation or construction project, contacting a lawyer in the early phase of a dispute can often lead to a settlement thus avoiding lengthy and costly litigation in the Italian courts.

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