The consequences of identifying defects and the procedure for action during the warranty period are somewhat different from the consequences of their identification before acceptance of the work (facility). Before acceptance, the customer has the right, at his own discretion, to choose any of the three methods enshrined in the Civil Code.
But during the warranty period, the customer is obliged to first present demands to the contractor. And only if he fails to perform warranty work, he has the right to use other methods of protection.
The warranty period (warranty period) begins from the date of signing by the parties of the acts, in the KS-2 form, on the delivery and acceptance of the work performed. As a rule, it lasts several years, and it can be extended if such a possibility is provided for in the contract.
It is important to note that if a construction contract has been fulfilled, in terms of performance of work, then under warranty obligations it is considered fulfilled only at the end of their validity period.
The essence of the guarantees is obvious: correction by the Contractor of deficiencies identified during the warranty period.
The warranty performance parameters provide for the Contractor's obligation to correct deficiencies identified during the warranty period. A procedure is provided for identifying these shortcomings, fixing them, justifying that they arose through the fault of the Contractor, for example, due to inadequate quality of work (this could not be identified during acceptance of the work performed), as well as determining the procedure for the parties to eliminate the identified, duly recorded defects and/or defects.
In this case, an examination may be appointed and carried out to confirm, evaluate and justify the identified shortcomings and/or defects; its results (if carried out properly, in compliance with the relevant rules and regulations) are the basis for requiring the Contractor to correct the deficiencies, elimination of defects, that is, the Contractor’s fulfillment of its warranty obligations.
The main disputes between the Contractor and the Customer, within the framework of warranty obligations, arise precisely because it is not clear whether the Contractor is to blame for the identified shortcomings and/or defects.
The Customer’s position is strengthened by the contents of the chapter of the construction contract, which specifies the parameters for fulfilling warranty obligations. Often, this chapter contains provisions that are unacceptable to the Contractor, in particular regarding the fact that (in essence the interpretation of the clauses) the Contractor is obliged to eliminate shortcomings, to correct defects that arose not through the fault of the Contractor, but for other reasons.
Thus, even before signing a construction contract, it is necessary to analyze in detail the chapter on warranty obligations, and by drawing up protocols of disagreements, oblige the other party to exclude or adjust provisions that may lead to a distortion of the essence of the fulfillment of warranty obligations.
If the contract has already been signed, executed, but a “warranty case” has arisen, the Contractor must adhere to certain rules and principles, which will allow the Contractor to reasonably refuse work (elimination of deficiencies and/or correction of defects) that cannot be classified as warranty, since direct the Contractor's fault in the identified shortcomings and/or defects has not been recorded.
First of all, it is necessary to oblige the Customer to justify in writing why the Customer decided that the identified shortcomings and/or defects arose through the fault of the Contractor.
It is also necessary to conduct a joint inspection of the facility, that is, the Contractor must, in writing, invite the Customer to appoint a representative to properly record deficiencies, classify them, to assess the possibility, validity and/or expediency of their elimination, in order, together with the Contractor’s representative, to carry out the necessary measures, with going directly to the site.
It is obvious that the inspection report and identification of defects signed by the parties is the basis for the performance of warranty work.
As a rule, as a result of a joint inspection, those works that the Contractor is not obliged to carry out are excluded from the “warranty work”, because It is not his fault for the identified shortcomings. Moreover, some of the deficiencies allegedly identified earlier are simply not confirmed during a joint examination.
That is, joint inspection is the main principle when working with warranty obligations. Of course, importance must also be attached to the discipline of document flow; response letters to the Customer are required, explanations regarding the inapplicability of warranty obligations for certain works, that is, official documents from the Contractor that substantiate his position.
Efficiency and timely response are also important, because the chapter on the fulfillment of warranty obligations, as a rule, stipulates that if the Contractor does not fulfill its obligations, does not perform “warranty work,” then the Customer has the right to entrust these works to a third party, with the costs associated with the Contractor.
It is also obvious that with a competent and comprehensive approach, the fulfillment of its warranty obligations will eliminate the situation for the Contractor when it is necessary to perform “warranty work” for those defects and/or shortcomings that are not the Contractor’s fault or that do not even relate to the subject of the contract.
Author: Vera Nikulina, lawyer, Perm
Guarantee period
In legal practice, there are two types of warranty periods for construction work:
- established by the current regulatory Federal acts (Government Decree No. 812 and Article 756 of the Civil Code);
- specified by contractors or customers in agreements for construction work.
IMPORTANT
Warranty obligations and terms established by Decree of the Government of the Russian Federation No. 812 amount to one calendar year (12 months) from the date of acceptance of construction work.
Article 756 of the Civil Code establishes a 5-year warranty period for construction services from the moment they are accepted by the customer.
That is, if defects were identified by the customer during the specified time, the developer company is obliged to eliminate all defects that have arisen at its own expense.
The parties (customer and contractor) may establish additional warranty obligations in an agreement between themselves. But their deadlines should not be less than those prescribed in regulations.
In an example it looks like this. The contractor undertakes to operate the facility and its elements for 10 years. This means that if hidden or other defects are revealed during this period of time, he eliminates the defects at his own expense.
For your information
It must be remembered that if the contract specifies a shorter warranty period, then these conditions are illegal, and the customer has the right to demand that defects be eliminated within the time frame established by the Civil Code or Resolution No. 812.
Guarantee for construction work from the contractor
Based on established practice, as well as judicial consideration of disputes under construction contracts, the guarantee for construction work from the contractor consists of two components.
- The period during which the customer will be able to safely operate the facilities, without routine and major repairs. If during this period of time the building, house, structure, or their elements lose their design features, the contractor is obliged to carry out restoration (repair) work at his own expense.
- The period during which the customer is obliged to report identified deficiencies (malfunctions) of the construction project to the contractor. It begins to be calculated from the time the defects or other damage are discovered.
Additional information
An example would look like this: The construction organization gave a guarantee for the construction equal to 5 years of operation, and indicated that it is valid for 2 years from the date of detection of defects.
After acceptance, the customer began to use the premises, but after 3 years he discovered the presence of hidden faults. If he informs the contractor about this within 2 years, then the contractor will carry out restoration work at his own expense.
If after a two-year period, then the construction organization is released from such work, and repairs are done at the expense of the customer.
Article 724 of the Civil Code of the Russian Federation. Time limits for detecting inadequate quality of work results (current edition)
1. The commented article regulates the deadline for discovering deficiencies in the work result for subsequent submission of claims to the contractor. Outside these deadlines, the customer has no right to present, and the contractor is not obliged to satisfy, the customer’s requirements.
The customer is not the only legal entity who can make relevant demands. In judicial practice, a position has developed that a person who has purchased the result of work from a customer also has the right to demand that the contractor eliminate defects within the warranty period.
The deadlines for detecting deficiencies provided for in the commented article are not strict and can be changed by law or a contract.
The Civil Code of the Russian Federation in this case regulates two situations - when the contractor does not guarantee (clause 2) or, on the contrary, guarantees the quality of the result (clauses 3 - 6). As a general rule, the customer can present claims to the contractor related to defects in the result if they were discovered within a reasonable time, but within two years from the date of delivery of the result, while the rule is flexible, and it can be changed by law, or contract, or custom business turnover.
2. If, in accordance with the law, another legal act, a contract or business custom, a quality guarantee is provided for the result of work, the result (including all its components) must correspond to quality throughout the entire warranty period. In this case, the customer can present claims to the contractor related to defects in the result if they were discovered during the warranty period (clause 3), and in the presence of a special guarantee (which can only be provided for in a contract and its period is less than two years) - and after its expiration, but within two years (clause 4). Thus, contractors who provided a guarantee are equal in rights to those who did not provide a guarantee.
It is important to keep in mind that the warranty period may not be agreed upon in the contract, but in the work acceptance certificate. The judicial authorities come to this conclusion.
3. The warranty period begins to run from the moment the result was accepted or should have been accepted by the customer (clause 5 of the commented article). Consequently, a delay in acceptance of the result by the customer not only transfers to him the risks of accidental loss (damage) of property, but also determines the start of the warranty period. The longer the customer’s delay in accepting the result, the shorter the warranty period becomes for him. However, this rule can be changed by a contract.
4. The legislator in paragraph 6 of the commented article refers to the rules of purchase and sale regarding the calculation of the warranty period. If the customer was deprived of the opportunity to use the result due to circumstances depending on the contractor (in particular, in case of delay in delivery), the warranty period does not expire until the contractor eliminates these circumstances (paragraph 1, paragraph 2, article 471 of the Civil Code of the Russian Federation), and if the customer does not could use the result due to the presence of shortcomings in it, the warranty period is extended for an appropriate time, subject to proper notification of the contractor about the shortcomings of the result (paragraph 2, paragraph 2, article 471 of the Civil Code of the Russian Federation).
When replacing a result (its components) with defects discovered during the warranty period, a warranty period of the same duration is established for the newly transferred result (its components) of the same duration as for the replaced one (clause 4 of Article 471 of the Civil Code of the Russian Federation).
5. Judicial practice:
— Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 16, 2007 N 12354/06;
— Determination of the Supreme Arbitration Court of the Russian Federation dated July 13, 2009 No. VAS-8680/09 in case No. A45-12661/2008-4/275;
— Resolution of the Federal Antimonopoly Service of the Volga District dated April 30, 2010 in case No. A55-30414/2009;
— Resolution of the Seventeenth Arbitration Court of Appeal dated 03/06/2008 N 17AP-1096/2008-GK in case N A50-8885/2007, A50-8886/2007;
— Resolution of the Federal Antimonopoly Service of the North-Western District dated February 19, 2013 in case No. A05-9640/2011;
— Resolution of the Federal Antimonopoly Service of the North-Western District dated February 19, 2013 in case No. A05-9640/2011.
Comment source:
“COMMENTARY ON THE CIVIL CODE OF THE RUSSIAN FEDERATION. PART TWO OF JANUARY 26, 1996 No. 14-FZ"
ON THE. Barinov, S.A. Baryshev, E.A. Bevzyuk, M.A. Belyaev, T.A. Biryukova, Yu.N. Vakhrusheva, R.R. Dolotina, N.V. Elizarova, R.Yu. Zakirov, N.A. Zakharova, P.Z. Ivanishin, S.Yu. Morozov, T.N. Mikhaleva, 2014
Have you found any deficiencies in the warranty period under a construction contract?
In this case:
— the consumer sends a request to the contractor to carry out repairs and eliminate deficiencies;
- the contractor can immediately begin to correct it or, in case of disagreement or doubt, conduct an independent examination. The warranty under the contract does not apply to an item that is not subject to use.
— in controversial cases, it is necessary to refer the conflict resolution to the court.
Note! If an enterprise is declared bankrupt, third parties are allowed to fulfill guarantee obligations. But they bear obligations for the quality of repair work to the contractor.
