Receipt from the developer is surely a key step in the long-term acquisition process. Many times, however, the dream flat has disadvantages that prevent or hinder residence, and the method condition of the premises is simply unsatisfactory for buyers.
The revised law on the protection of the rights of the buyer of a residential or a single-family home and the Developer warrant Fund, commonly referred to as the "Development Act", introduces a formalized procedure for the reception of the premises from the developer and the removal of any defects (wider liability of the developer for property defects – Here.). The legal act besides provides for the anticipation of refusing to accept the object of the improvement contract in certain circumstances, which is simply a fresh solution, and many cases can be an effective legal mechanics for buyers.
In this publication, we have made a applicable effort to clarify the following issues:
- what in practice should be understood by the word "receipt of the premises from the developer”?
- When can you do the reception?
- Is it worth taking advantage of the expert on construction?
- What is local reception protocol?
- what is the legal procedure for recognising/not recognising the property defects by the developer?
- what, then, are the ‘important’ and ‘unimportant’ disadvantages of the premises?
- In the judicial process of remedying the defects of a building expert, can the position of a judicial expert?
- Can the cost of a private expert on the construction expert be reimbursed in the course of legal proceedings?
What is taking a place from a developer within the meaning of the improvement Act?
The business of receiving the premises consists of examining the place of conducting the improvement task and an eyewitness message by the buyer (in the presence of the developer), whether the subject of the contract has been executed in accordance with the terms of the obligation: the improvement contract together with annexes, construction project, building regulations and building art rules. (E. Gniewek (ed.), Private Law System, Volume 3, 2020, Issue 4).
When can you do the reception?
The second conviction of Article 41 of the amended improvement Act defines 2 states of fact erstwhile it may happen receipt of the premises from the developer (also sometimes referred to as "technical reception of the apartment‘):
- after the decision to authorise usage has been approved, or
- after notification to the construction supervisor of the completion of the single-family home in the absence of any objection from that authority.
Our practice shows that developers frequently effort to make a pickup before allowing the building to be utilized – frequently calling it pre-received. It should be noted that this kind of “pre-received” has no legal effect and is simply a null and void legal act which the buyer can communicate to the developer. In the event that the developer does not want to submit a final decision to the purchaser of the premises on the authorisation to use, or announcement of completion of the construction, citing ‘pre-received’), it is recommended not to sign the ‘receipt document’ . However, it seems that under certain circumstances the buyer may appear on a pre-received basis and already at this phase point point to the defects of the premises which the developer should remove until the appropriate reception, although of course this procedure will not constitute reception of the premises within the meaning of the improvement Act.
Is it worth taking advantage of the expert on construction?
Receipt of the flat from the developer it should be carried out in the presence of the buyer(s) of the premises and the developer, or his authorised representative, while the improvement bill does not exclude the anticipation of receiving besides with the engagement of a construction expert, a supervisor, etc.
It seems that in the reception of the premises it is worth to take advantage of the expert expert building. The expert's opinion will let to find the method condition of the built premises, its compliance with the construction project, the principles of construction art, method standards and the improvement contract. The paper may besides indicate the possible causes and consequences of the irregularity and indicate how they should be removed.
What is the reception protocol?
In accordance with Article 41(3) of the improvement Act from the reception of the premises shall be drawn up residence receipt protocolto which the buyer may study defects in the residential or single-family premises. The paper that confirms the receipt of the premises is so a protocol on the performance of the operations. Local reception protocol is signed by the owner of the premises and the developer (possibly the developer's proxy on the basis of the appropriate mandate granted). Apartment receipt protocol usually in a written form.
The text of the Protocol shall in rule consist of the following elements:
- place and time of receipt,
- the object of reception and the useful surface determined by the appropriate measurements,
- description of the premises defects identified by the purchaser,
- refusal of the purchaser to accept the material defect,
- recognition or refusal of designation of a material defect by the developer,
- Technical documentation, door keys, pilots, etc.
It is crucial that, in the course of the collection procedure, all the defects which the purchaser submits are included in the premises reception protocol, even if the developer considers that they are unfounded from the point of view of the building art. The purchaser so has the full right to request that all defects be entered in the protocol and the developer cannot refuse to do so.
Our practice besides shows that many times local reception protocol includes a message by the buyer that the purchaser waives claims, for example for contractual penalties for late transfer of ownership of the premises. First of all, it seems apparent that these statements should not be included in the paper at all. residence receipt protocol. However, where the developer proposes to make specified a message or statements by the buyer, or even makes the signature of the protocol conditional on their submission, the buyer should not agree to this due to the possible negative consequences in terms of claims from the developer in the future.
What is the procedure for the developer's designation / non-recognition of property defects?
In many cases, during the reception of the premises, the purchaser finds that there are defects, the most common of them being:
- uneven, vertical wallless,
- uneven floor,
- leaky windows, balcony and entrance doors,
- scratched windowsills,
- damaged windows,
- abrasions, abrasions,
- damage, features of balcony railings,
- non-compliance with the task (irregular connections, deficiencies in installations),
- incorrect ventilation performance,
- low soundproofing of the premises.
Of course, the above calculation is only of an exemplary nature, and the defects of the premises in practice can be much more and may affect different parts of the premises.
The improvement bill provides that the developer is required to submit the buyer on paper or another durable average within 14 days of the signature of the receiving protocol:
- information on the designation of defects, or
- a message of refusal to recognise defects and the reasons for specified refusal.
If the developer does not inform the buyer of the designation of the defects or of the refusal to recognise the defects and its causes within 14 days of the date of signature of the protocol, it shall be deemed to have recognised the defects. The developer shall be required within 30 days from the date of signature of the collection protocol to remove the recognised defects of the residential or single-family housing.
If the developer, despite due care, does not remove the defects within the time limit, the developer indicates a different deadline for removing the defects, along with justification for the delay. This time limit shall not origin undue inconvenience to the buyer.
If the developer fails to remove the defects within the time limit or indicates specified a deadline, the buyer shall set a fresh deadline for the developer to remove the defects. After this deadline has been unsuccessful, the buyer can remove the defects at the developer's expense.
According to the Act, the purchaser may refuse to take over the premises in the event that it is established at the time of receipt that the dwelling or the single-family home has a crucial defect and at the same time the developer refuses to recognise it in the collection protocol. Then the parties will set a fresh deadline for reception of the premises, taking into account the time needed to remove the defects. If it is found during the subsequent receipt that the defect has not been removed, the purchaser of the premises may refuse to receive it again. The purchaser may then request an expert to give an opinion on the existence of a material defect. He'll have a period to do it, counting from day two. Only obtaining an opinion from an expert, which will confirm the existence of a crucial defect, will open the way for the buyer to retreat from the improvement contract. This opinion will besides be the basis for the reimbursement of funds to the purchaser from the Developer warrant Fund.
It is besides worth noting that the fresh collection procedure assumes that only the purchaser has the right to ask the expert to present an opinion, at the same time the bill does not supply for a “defence” procedure by the developer, for example by means of the right to make a substantive mention to an opinion or to present a counter-opinion. This may be of peculiar importance erstwhile the opinion is formulated in a non-professional, misleading, flawed way or does not correspond to the nature of the alleged flaws.
It is besides worth noting that the specified receipt, even without fail, does not origin the buyer to lose the chance to claim claims for defects of the premises at a later stage, although in a possible court process the developer will so surely trust on the signed local reception protocol. The case-law assumes that the drawing up and signing of the collection protocol justifies the presumption that they have been executed in accordance with the contract, but that is simply a presumption which can be refuted by demonstrating that the contract has been unduly executed" (for example, the ultimate Court judgement of 24 July 2009, act No II CSK 61/09).
So what are the “important” and “unimportant” disadvantages of the premises?
According to the above considerations on the reception procedure, the improvement Act so introduces a division of the premises' defects into crucial and irrelevant defects, and the question of whether the defect is ‘essential’ or ‘unimportant’ can be fundamental to the buyer of the premises. At the same time, the law does not supply for a definition of ‘significant defect“ but it leaves it in an indeterminate form, thus giving emergence to a broad explanation of the concept. In practice, the explanation of individual facts in the context of the occurrence (or not) of a material defect will remainder with buyers, developers and experts issuing method opinions. Of course, each time the assessment of the “substantiality” of a defect should take into account the method circumstances and circumstances of the actual situation.
However, it should be borne in head that the jurisprudence brings closer the definition of a "essential defect" based on the provisions of the civilian Code.
- Practical example: the material defect prevents the appropriate usage of the subject substance of the supply, excludes the average usage of it in accordance with the intent of the contract, or takes it distant from its circumstantial characteristics or expressly reserved in the contract (judgment of the Court of Appeal in Lublin expressed in the judgement of 26 November 2019, act mention I AGa 55/20);
- ExamplepracticalIn assessing the essentiality of the defect within the meaning of Article 560(1) k.c., the applicable expectations of the buyer of the things related to its functioning should be exposed, not only to the objectivised method state of the thing in the form of its unfit for average usage (in general or to a certain extent) or worthless in the functional sense (judgment of the Court of Appeal in Lublin of 26 November 2019, mention I ACa 730/18);
In a court trial, can an expert expert have the position of an expert?
When receipt of the flat demonstrates defects and the developer refuses to repair the defects of the residential or single-family premises, it may be essential for the buyer to take a civilian procedure. In most of these cases, the purchaser already has an opinion formulated by a construction expert, which confirms the incompatibility of the premises with the improvement contract and the principles of building art of the method condition of the premises.
However, if the case is referred to the course of judicial proceedings, the purchaser of the premises should bear in head that the expert requested by him will not have the position of an expert in a possible judicial trial but will only be a alleged ‘private document’ to which he can refer. In another words, the private opinion of the expert will not replace the expert's opinion, which will most likely be commissioned by the court.
On the another hand, a private opinion is surely not only a ‘reinforcement’ of the procedural position of the party, but can besides be the basis, for example, for allowing a complementary expert opinion erstwhile the conclusions of both papers are divergent. Moreover, in many cases the submission of a private opinion may constitute a similarity to that of the premises in security procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
It is besides worth noting the ruling of the ultimate Court of 2 February 2011 (Event II CSK 323/10), in which the ultimate Court held that private expert opinions prepared on behalf of the parties prior to the initiation of the trial are “an explanation, taking into account peculiar information, their position, and a private expert opinion may besides constitute an indication of the request for the court to accept evidence from another expert’s opinion.”
Can the cost of a private expert expert be reimbursed in the course of a judicial procedure?
As a general rule, the cost of an expert expert’s expert expert’s expert’s expert expert’s expert’s expert’s expert report, which is utilized by the organization before the legal process is initiated, may constitute an injury to be recovered, provided that the plaintiff demonstrates that the cost of the expert’s expert was objectively intentional, necessary, necessary, reasonable, sufficiently justified for the effective execution of the developer’s compensation claim.
In the judgement of the ultimate Court of 2 September 1975 (Event mention I CR 505/75) LEX No 774, the ultimate Court stated that it was carried out before legal proceedings were initiated and in addition to securing the evidence of the expert’s may be an essential condition for the award of compensation. In this case, the cost of the expert shall be the harm to be recovered (Article 361 KC). A akin position is besides confirmed in another judgments of the courts, for example in the judgement of the Bydgoszcz territory Court of 5 December 2019 (Event VIII Ga 62/19).
Receipt of the premises from the developer and responsibility removal procedure – our services
Representing local buyers and developers in disputes related to improvement contracts is 1 of the core specializations of the Capital Legal Law Firm.
If:
- You're a developer, and you think that the buyers of the place claim that the premises you made have flaws, and you'd like to effort defense,
- You are the owner of the premises, the premises you have purchased have flaws that the developer does not recognise, or would like us to guide you through the formalized reception procedure,
Contact us!
We are happy to answer your questions, as well as aid you in the pre-trial and trial stages.
