It is common for building managers and members of property acceptance committees to encounter construction defects or project inconsistencies, whether apparent or not, that raise doubts about the soundness of the building.
Should a building be accepted even if a construction defect is found? Or, within what timeframe can one claim from the construction company for repairs to a defect that became apparent after the building has been accepted?
It is commonly attributed to Article 618 of the Civil Code that the builder's liability extends for 5 years after the completion of the work. Is this period, which is a warranty period, sufficient to safeguard a durable system such as a building's facade?
These are the questions we seek to clarify for the reader, which is done by distinguishing between hidden and apparent defects in order to, finally, indicate the limitation and prescription periods and what rights can be exercised in the face of such situations.
What are the construction company's obligations towards the condominium and its building?
The obligation to guarantee the solidity and safety of a property is addressed in Article 618 of the Civil Code, and, although this provision may, at first glance, suggest serious structural circumstances, the Superior Court of Justice (STJ) has a firm understanding that such terms should be interpreted broadly, in order to guarantee the purpose for which the property is intended, with the viability of adequate housing conditions.
For example, the following precedents:
(…) – The solidity and safety referred to in Article 1.245 of the Civil Code do not simply reflect the danger of the building collapsing; the construction company is also liable for defects that may compromise the project in the future, such as cracks and leaks. Precedents. (…)
AgRg in REsp 399.701/PR, Rapporteur Justice HUMBERTO GOMES DE BARROS, THIRD PANEL, decided on 04/12/2005, DJ 05/09/2005, p. 389
(…) The expression “solidity and safety” used in article 1.245 of the Civil Code should not be interpreted restrictively; defects that prevent the proper habitability of the building, such as water infiltration and leaks, are also covered by it. (…)”
REsp 46.568/SP, Rapporteur Justice ARI PARGENDLER, THIRD PANEL, decided on 05/25/1999, DJ 07/01/1999, p. 171
What this means is that the construction company has an obligation to deliver a fully habitable building, and this is not the case when leaks are found throughout the building, or, even more seriously, when there is damage to the infrastructure due to leaks and cracks affecting the basements, as well as porosity that creates a risk of collapse and renders the building's structure unviable.
Structural problems in condominium buildings can result in serious consequences, as was notoriously reported in the Federal District, when, in SQN 210, the garage of a building collapsed due to structural problems similar to those currently presented. (https://g1.globo.com/df/distrito-federal/noticia/escombros-de-garagem-que-desabou-na-asa-norte-comecam-a-ser-retirados-nesta-terca.ghtml)
In order to be considered compliant with the legal requirements for adequate housing, the construction company has a duty to comply with the technical construction standards, a conclusion that stems from an interpretation of article 32, paragraph “g”, of the Incorporation Law (Law 4.591/64), in combination with article 53 of Law 4.150/92, resulting in the understanding that the technical standards are mandatory both in the project to be approved and in its execution.
What types of defects are accepted and what are the deadlines for filing a complaint?
Vices can be apparent or hidden. An apparent vice is one that is easily detectable by any average person; that is, the average person, lacking specialized knowledge in engineering, can perceive with the naked eye that it is a vice.
A hidden defect is one that is not visible to the naked eye, commonly becoming evident over time, such as through leaks, or requiring specialized investigation.
In the case of an apparent defect, presented to the recipient of the work immediately upon delivery, the recipient should refuse to accept it or demand a price reduction.
If there is a refusal, the limitation period for the redhibitory action begins to run, which, according to paragraph one, article 18 combined with article 26, all of the Consumer Protection Code, is 90 days.
For claims for damages arising from apparent defects, the statute of limitations also begins to run from the date the property is received, and in this regard, there is disagreement in case law as to whether the statute of limitations is three years or ten years, with the latter prevailing.
In practical terms, a redhibitory action (price reduction or contract termination) is subject to a statute of limitations, while an action seeking damages is subject to a statute of limitations.
With regard to hidden construction defects, those that were not detected upon delivery of the object but emerged over time or as a result of a specialized investigation, the legislation presents aspects that denote concern in legal scholarship.
Although the Civil Code establishes an obligation to guarantee structural soundness for a period of 5 years, the specific legislation regarding hidden defects, both in the Civil Code and in the Consumer Protection Code, does not present a limit to the extent to which the construction company is exempt from liability in relation to such defects.
What exists is the statute of limitations and the forfeiture period linked to the knowledge of the defect and the right to take legal action (statute of limitations) or to exercise the right (forfeiture). In other words, once the recipient of the property is aware of the hidden defect, the forfeiture period for the reduction or cancellation of the transaction begins, which is 1 year.
The statute of limitations, related to the claim for compensation to repair the problem, in this case is 10 years, starting from the date the defect was discovered.
Given these considerations, is it correct to say that liability for hidden construction defects is therefore infinite? This is a thorny issue because the legislation does not indicate a time limit and, on the other hand, it is incompatible with our fundamental legal principles to admit an interminable liability.
The consensus is that the warranty persists in accordance with the technical engineering concept of the durability of the item in question.
Indeed, the paint on a facade, for example, should reasonably perform well for a period of several years, whereas the structure of a building should remain substantially sound for a much longer time than the facade system.
Thus, during such a period, if a hidden defect arising from endogenous reasons is found, that is, from the construction or design process, and if adequate maintenance has been carried out by the condominium, the responsibility of the construction company persists, which must be exercised in accordance with the limitation or forfeiture periods presented, depending on the wishes of the recipient of the work.
What are the effects of the acceptance certificate for the common area that attests to agreement with what was delivered?
The Incorporation Law stipulates that the handover of the development will be made to the committee of representatives of the condominium owners and, notably, at this stage, it is common for developers and construction companies to issue agreements with annotations to exempt themselves from liability for any potential defects that may be found.
Regarding the structure and soundness of the building, any provision containing a rule exempting the construction company from this responsibility is null and void, since Article 618 of the Civil Code is a rule of public order, which not even the purchasers can dispose of.
Regarding hidden defects, the same understanding should be applied, because it is clearly an unfair clause insofar as, abstractly, it promotes the waiver of rights that are not even known.
However, when construction defects are apparent, great caution is recommended regarding the signing of waiver agreements by the committee receiving the common area, since in such cases it is possible to dispose of, compromise, and accept the property in its current state. Therefore, by agreeing to receive the property under these terms and without reservations, the right to a redhibitory or reparative action is lost.
