Definition of property defects
According to the erstwhile jurisprudence practice, liability for physical defects is assumed not to be attributable to harm suffered by the buyer, but to the demonstration that the defect has caused a simplification in the value or usefulness of the goods. The existence of defects is so determined by the functional criterion, including the intent of the item and its usefulness, alternatively than the normative-technical criterion (yes: ultimate Court in judgement of 28 November 2007, LEX No 483295, and the ultimate Court judgement of 9 March 2006 in Case I CSK 147/05).
It is besides stressed in the literature that the disadvantage of the building is any unfavourable and unintended property of the built object, which hinders the intended usage of it, or its maintenance, or reducing its aesthetics or user comfort (cf. C. G., H. A. "Definition of a construction defect", civilian Engineer, March 2006).
A physical defect may consist of a deficiency of specified a feature of a thing which causes, for example, a simplification in the value or usefulness of a thing due to the intent of the contract, or a simplification in the value of a thing due to circumstances, or a decrease in the value of a thing due to the intent of the average intent of the thing, and besides if the thing does not have the property of which the another organization provided.
In assessing whether a peculiar kind of defect is involved, Article 354 k.c. states that the work should be fulfilled in accordance with its content and in a manner consistent with its social and economical nonsubjective and with the principles of social coexistence (yes: judgement of the Słupsk territory Court in its judgement of 25 October 2013, Act I C 156/12).
The criterion of ‘substantiality’ or ‘serious nature’ with guarantees for property defects
In the judicature, it was accepted that the individual expressing the essence of the warranty of Article 556(1) of the Law did not give emergence to the qualification of a physical defect according to the criterion of ‘essentiality’ or ‘serious character’ (yes: judgement of the ultimate Court of 10 July 2002 II CKN 111/01, judgement of the ultimate Court of 13 May 2003, V CKN 230/01).
The demarcation of the concept of ‘essential’ and ‘unimportant’ may take place in a contract between the parties. If the parties do not specify these terms in the contract, the argument should be accepted that, erstwhile assessing whether there is simply a material defect or whether the buyer's point of view needs to be taken into account, alternatively than the categories of "inutility" or "invaluableness" of things, the criteria for the subjective qualification of defects to the limits set out in Article 5 k.c. should be voiced in the contract of sale.
Guarantee for property defects (buildings, apartments) and applicable method standards
As indicated above, a physical defect at the warranty occurs erstwhile the value or usefulness of the thing has been reduced, taking into account the intent indicated in the contract, either resulting from the contract or the intent of the thing. In order to find the existence of this defect, the applicable method standards are not relevant (yes: paragraph 2 of the Resolution of the full composition of the civilian and Administrative Chamber of the ultimate Court of 30 December 1988, III CZP 48/88 OSNC 1989/3/336).
From this point of view, in order to find whether the defects of the building indicated by the buyer are flaws within the meaning of Article 556(1) kc, it does not substance whether at the time erstwhile the building was built by the seller (or its predecessors) and at the time erstwhile the building was disposed of by the seller to the buyer it met the applicable method standards for residential buildings at the appropriate times. It is important, however, that the value or usefulness of the building in question has been reduced due to the nonsubjective resulting from the usage of this building (residential function).
Derogation from construction task and warrant for property defects
The existing government allows, under appropriate conditions, derogations from the construction task and alternate solutions. The defects of the building so depend not on the fact that the construction task was abandoned, but on the fact that the solutions utilized in the construction of the building proved to be ineffective (yes: judgement of the Court of Appeal in Białystok of 18 February 2016), Ref. Act I ACa 948/15).
The liability of the seller for the warranty and the cognition of the buyer of defects
Pursuant to Article 557. § 1 kc, the seller is exempted from liability under the warranty if the buyer knew of the defect at the time of conclusion of the contract.
In the case law of the ultimate Court, it is assumed that in order to exempt the seller from liability with the warranty, the buyer must know of the defect and the question of whether he should have known it, for example, due to the fact that the defect was manifest (yes: ultimate Court judgement of 29 June 2000, V CKN 66/00).
The Bialystok Court of Appeal in its judgement of 8 July 2016, the mention to Act I ACa 172/16, accepted that, if the defects were not visible to the alleged ‘ bare eye’, they were so hidden defects. Thus, even if the buyers had repeatedly and thoroughly examined the disputed property, there was no basis to construct the actual presumption that they had cognition of deviations from the construction project, they besides had cognition of its functional defects.
No responsibility on the seller and liability on the property defects
The liability of the seller for defects in things is in fact a risk-based, absolute and nonsubjective liability. This is mainly highlighted by the deficiency of freedom from it by demonstrating the deficiency of responsibility of the seller, or even by showing a deficiency of cognition of the occurrence or the anticipation of a defect.
The main reason for the seller's liability towards the buyer is to show that the object of the sale is affected by a physical or legal defect. It is so of no importance in examining specified cases whether the seller is to blame for the condition of the object of the acquisition or cannot be attributed to it (yes: judgement of the Bialystok Court of Appeal of 18 February 2016, Ref. Act I ACa 948/15).
Granting to the buyer by the seller the assurance that property defects do not exist
As mentioned, in the event that the buyer is given assurance that there are no defects in the building , in the statutory provision of Article 564 k.c., the entity of the seller's action is irrelevant – neither is the party's intention or the cognition of the existence of a defect in the object of the sale required.
This provision, with the insidious action of the seller, equates with the effect of giving the buyer assurance of the inadequacy of the things with which the seller can act in specified a bad faith—intendedly, intentionally, assured of inadequacy, knowing flaws, as well as in good faith, being convinced of the deficiency of faults or the possession of certain qualities. The intent of the regulation of Article 564 k.c. is so to defend the buyer, not only to sanction the behaviour of the seller. From here it cannot be interpreted narrowly.
The content of Article 564 k.c. so excludes the consequences of the indefinitely performing the acts of care provided for in Article 563(1) and (2) k.c. by the buyer. Despite the deficiency of timeliness, buyers gain full protection both erstwhile they are a victim of deception, but besides erstwhile they deficiency it, and the buyer acted in assurance to supply the seller with the characteristics, properties of things.
Form and transfer of the buyer's assurance that property defects do not exist
In both doctrine and jurisprudence, it is assumed that a buyer's assurance that defects do not be can trust on a clear general message that the thing is without defects, or on a message to the buyer that the thing has certain qualities that he does not actually possess.
This assurance may come straight from the contract, but besides from the information available from the seller, as well as the information displayed on the items or in the documentation relating to it (yes: ultimate Court judgement of 27 January 2004, II CK 378/02, of 19 October 2005, V CK 260/05).
The assurance can be expressed by signs, symbols, due to circumstances or yet in an implicit manner, which can trust on the seller silently agreeing with the expectations expressed by the buyer towards the purchased thing.
Sneaky concealment of property defects (buildings, apartments) by the seller
A sneaky concealment of a defect is simply a deliberate action of the seller aimed at deliberately concealing a defect, with the grounds for specified a proceeding must be the seller's cognition of the existence of a defect. This cognition must accompany the seller besides if it is accepted that the trick is simply not to inform the buyer of the revealed defect (yes: ultimate Court judgement of 1 April 2003 II CKN 1382/00, LEX No 28819).
The consequence of the insidious concealment of the defect, as well as the fact that the buyer assures the seller that the defects do not exist, is the deficiency of expiry of the buyer's warranty rights.
Definition of the building at the hands
The ultimate Court, in its judgement of 25 January 2006, No. I CK 247/05 (LEX No. 346091), noted that the doctrine powerfully prevails in favour of a broad knowing of the concept of "buildings" utilized in the provision of Article 568 §1 k.c., which does not limit the meaning of the building law, now Article 3(2) of the Act Building law, according to which the building is simply a building which is permanently connected to the ground, separated from the space by building partitions and has foundations and roofs. specified a definition of the building does not correspond to the scope or intent of Article 568(1) of the Law, which, on the 1 hand, is to limit the warrant temporarily, as an institution that does not favour certainty of trade and which forms work according to very strict rules, and on the another hand, the time limits provided for in it are besides to take into account the interests of the rightholder and to give the chance to uncover themselves during the duration of their defects. Therefore, the legislator differentiated the dimension of the pre-clusion word depending on the kind of thing and the real time the defects were revealed.
For these reasons, the definition of the word ‘building’ utilized in Article 568(1) is not only useful, not only for the definition of the word ‘building’, but besides for the definition of another concepts contained in the provisions of that law, specified as, for example, the definition of ‘building facility’, which covers specified different objects as buildings, airports, fortifications, sports structures and tiny architectures, specified as chapels and roadside crosses, sandboxes and swings. The size, value and scope of the works essential for the creation of specified facilities, as well as the manner in which they are utilized and the duration of any defects, are so different that there is no basis for them to be covered by the common word ‘buildings’ utilized in Article 568(1) k.c., as suggested by the supporters of a broad definition of this concept, suggesting that they be covered by ‘building objects’ within the meaning of Article 3(1) of the Construction Law.
The ultimate Court so expressly held that the definitions contained in the Construction Law were adopted for the purposes of administrative law and could not be transferred straight to Article 568 §1 k.c., whose intent is completely different and which uses the word "building" in another sense. In particular, given the intent of the provision in question, it considered that the legislature was in fact a complex construction site and a serious economical and utility importance, the possible disadvantages of which may not be revealed within a short period of 2 years from the date of issue and it is so essential to cover specified a facility with a five-year pre-clusion term. The above position of the ultimate Court was met with the approval of the representatives of the doctrine (so: Paweł Ochmann, a vote to the judgement of 25 January 2006 in Glos 2012/4/40-44), and the judgement of the Court of Appeal in Szczecin of 21 February 2013. Act mention I ACa 732/12).
Entity entitled to complain of building defects (real estate) at the handles
Only the buyer is to lodge a complaint against the seller and, consequently, to prosecute claims under the warranty of the rightholder.
Similarly, in the case of a housing community, individual members of the housing community as purchasers of premises are entitled to notify the seller of the defects of the building. The notification of defects by the housing community shall be treated as a 3rd organization action and shall so not comply with the criteria of Article 563 k.c.
If, therefore, the individual owners – the members of the community have lost their rights of warrant due to the passage of time, they could not effectively transfer their rights of warrant to the Community plaintiff (cession) due to the fact that these claims expired (yes: judgement of the Wrocław territory Court of 13 March 2014, Act No I C 482/13).
Form of submission of property defects by the buyer at the guarantee
the Court of Appeal in Krakow in its judgement of 31 May 2016, Act mention I ACa 937/15considers that the property defect study does not require any circumstantial form, so it is effective both by telephone and electronic means.
A notification by a proxy or a messenger should besides be considered admissible, since the Act does not impose any restrictions in this respect. If the defects concern a property subject to joint ownership, the declaration of defect, as an act aimed at maintaining a common law, should be considered to be so-called. conservative to which, in accordance with Article 209 k.c., each of the co-owners is entitled, having effect in respect of the full of the property and thus against the another co-owners.
Price simplification in case of defects in part of the common property
The territory Court of Warsaw in its judgement of 19 September 2016, Act III C 1634/06 (after the Court of First Instance’s prior amendment of the judgement of the territory Court by the Court of Appeal) ruled that the buyer’s right to request a price simplification in the event of a defect in the sale is not limited to cases where the full thing is affected by a defect. This right shall besides be granted in the case of the sale of a composite item only a part of which is affected by a defect, even if that part does not enter into trade on its own and has not been assessed separately erstwhile concluding the sale contract. For there is no obstacle to the price simplification by comparing the price of all things without defects with the price of the thing whose part has a disadvantage.
In the case of a multi-residential property whose common parts have a defect, the difference in the value of the thing referred to in Article 560 k.c. Article 3 should be calculated by comparing the price of all premises in the real property which could be obtained from their sale if the disadvantages in the common parts did not exist, with the price of those premises which could be obtained by selling them at the common defects.
In the view of the Court of First Instance, therefore, the view developed in the case-law of the ultimate Court was not applicable in the circumstances of the case, according to which, in the event of inability or considerable difficulty for the purchaser to show the relation in which the value of the defective property remains to its value calculated taking into account the existing defects (Article 560(3) k.c), the buyer cannot request a simplification in the price (yes: the ultimate Court resolution of 21 March 1977, III CZP 11/77, OSNC 1977/8/132). As indicated earlier, in the case of the discovery of defects in parts of a common building where there are many premises, it is possible to find the difference between the value of the property free of defects and the value of the thing in a condition with defects. The reason in this case was the Community after the transfer of claims to local owners.
Notification of a defect concerning part of common properties by 1 of the co-owners
The sale of premises shall be carried out together with shares in the shared parts of the property. The defects of common parts are besides disadvantages of the object of sale.
The awareness of the existence of a defect on the seller's side is to concern defects, not claims related to it. It is so adequate for the seller to be informed of the disadvantage even from 1 of the co-owners purchasing the premises (building, apartment, property).
The awareness of the disadvantages of the common parts obtained from 1 of the co-owners is adequate to keep claims by the another joint owners. Thus, even though each purchaser has his own claim with a guarantee, the notification in relation to defects in the common parts is simply a conservative activity (Article 209 k.c.) due to the fact that it is not possible to separate the states of consciousness bound by the warranty as to the defects of the full building.
In addition, any accession to correct a defect concerning an object acquired by the co-owners makes a announcement without object of the same defects by the co-owners and the correction of the defect will have effect on all others (yes: judgement of the Court of Appeal in Krakow of 31 May 2016, Act mention I ACa 937/15).
No reaction of the seller to the complaint of the buyer (consumer) within 14 days
On the consequences of the seller's failure to act within 14 days to complain to the buyer – read here
Evidence from private experts on building defects
The evidence from private experts attached to the application by the purchaser (cause) is taken by the court as being carried out for the intent of drawing up specified opinions on behalf of the plaintiff and their content and the dates on which they were produced. However, this is not evidence of the existence of defects, as the plaintiff could only show the circumstances by evidence from the expert's opinion and evidence of witnesses carried out in a circumstantial trial (yes: judgement of the Wrocław territory Court of 13 March 2014, Ref. I C 482/13).
Expert opinion as a origin of indication of property defects (location, apartment, building)
Pursuant to Article 278(1) of the Code, in cases requiring peculiar information, a court may, after proceeding the parties' requests for the number of experts and their selection, invitation 1 or more experts to consult them.
The expert's opinion should be professional and be the consequence of a full and thorough analysis of the evidence collected, logical and unambiguous.
The expert’s opinion shall , as well as another evidence of assessment pursuant to Article 233 §1 of the General Court’s uncovering that the Court of First Instance assesses the reliability and power of evidence according to its own conviction on the basis of a comprehensive examination of the evidence. In this respect, however, the expert opinion distinguishes circumstantial assessment criteria. They shall be consistent with the principles of logic and general knowledge, the level of expert knowledge, the theoretical basis of opinions, the motivation and the degree of firmness of its conclusions. The subject substance of the expert opinion is not to present the facts but to measure them on the basis of expertise (special communications) (yes: judgement of the Słupsk territory Court of 25 October 2013, Act I C 156/12).
It is so not subject to verification as evidence of facts on the basis of the criterion of fact and error.
Appointment of further experts in the field of construction
The party’s allegations to the expert’s opinion must not be limited to the contention of conclusions based on subjective assessment of evidence.
The question whether the Court of First Instance should appoint another experts and enrich evidence for further opinions was clarified in the judgement of the ultimate Court of 15 February 1974, Case No 817/73 (not publ.), according to which the evidence from the expert’s opinion cannot be applied to all rules of evidence, and in peculiar Article 217(1) of the General Court. so , if the court has received from experts the peculiar information essential for substantive and appropriate ruling , there is no request to require that evidence be renewed or supplemented .
The appointment of another expert is only justified if the opinion of the erstwhile expert is incomplete, incomprehensible and does not answer the question put in the order (yes: judgments of the ultimate Court of 4 August 1999, I PKN 20/99, 14 May 1997, II UKN 108/97, 18 September 1997, II UKN 260/97, and 10 December 1997, II UKN 391/97).
Buyer's rights under the warranty for property defects
If the sold item has a defect, the buyer may request the exchange of the items to be free of defects or to remove the defect. The seller is obliged to replace a defective item with a defect free of defects or remove the defect within a reasonable time without undue inconvenience to the buyer.
The buyer may besides make a message of price simplification or withdrawal from the contract, unless the seller immediately and without undue inconvenience to the buyer replaces the defective item with a defect free of defects or removes the defect. However, this regulation does not apply if the item has already been mentioned or repaired by the seller or the seller has not satisfied the work to replace the item with a defect free of defects or to remove the defect (Art. 560 Kc).
Meaning of ineffective repair of building defects (households, properties)
Ineffective repair cannot be regarded as repair, due to the fact that repair is intended to remove defects, that is, to make the thing ineffective (yes: Commentary to the civilian Code. Book three. Commitments, Volume 2, under ed. G. Bieńek, ed. LexisNexis, Warsaw 2006, p. 70).
Demand to lower the price for building defects by warranty and VAT
According to the caselaw, VAT is of value for money. The purchasers will besides be forced to bear the cost of this tax, thus there is no basis for the difference in the price of the building to be taken into account only in the net amount. Therefore, the amount charged to the buyer by the seller should be increased by the VAT due.
Obligation to collect and examine items by the buyer and warrant for property defects
As has already been said, functional considerations, whether defined in the contract or related to the requirements of average use, are essential for assessing physical defects of things. Consumers shall not be obliged to examine the existence of a defect., in addition to the usual obligations relating to the receipt of the items in accordance with the contract.
These obligations shall be fulfilled by the purchaser by exercising due diligence by checking the title of the seller's ownership of the property in question, the location, appearance and general position of the property. The buyer cannot be required to appoint experts to verify the conformity of plan and construction documentation with the actual state of completion of the building (yes: judgement of the Słupsk territory Court of 25 October 2013, Ref. Act I C 156/12).
Review of the property by the buyer with the engagement of a specialist
Warsaw-Prague territory Court in Warsaw in judgement of 22 December 2014, Act No I C 710/08 pointed out that the habit of looking at a building involving a specialist developed not only on the consumer marketplace but on the real property marketplace in general – including professional entities. Therefore, in relation to laymen, this customized should be interpreted with caution – as unobvious to individuals who are not acquainted with things, and who first execute specified a transaction. It besides involves certain, considerable costs which not all buyer has the chance to bear.
There is no basis for specified coercion or work on the part of the consumer. First of all, it must be borne in head that if the seller is simply a professional in this substance – he must know the building law, the principles of construction and appropriate execution and guarantee that they are applied. The consumer has the right to have assurance in the professionalism and competence of the seller, who should know the state of affairs and inform about it (taking into account the professional and professional nature of his messages in this matter).
Thus, the buyer has no reason to supply the seller with a full and professional examination of whether the sold item has – to be certain – hidden defects, or to presume professional dishonesty. It is not possible to pass on to the layman the work and costs of checking each time that the developer or the construction company has committed defects which it does not announcement or disclose. The drafting of a method assessment of the building, in peculiar in writing, entails crucial financial costs, as if risked by a possible buyer (in this case the plaintiff) who would not be reimbursed by the seller if the transaction did not happen in the light of disclosure of the condition of the building.
The consumer’s usage of the expert’s assistance is so not his work — it is not a shaped rule of conduct.
Acts of diligence of the buyer of the professional at the warranty for building defects
When selling between traders, buyers lose their warranty rights if they have not examined the items in time and in a manner accepted for specified things and did not immediately notify the seller of the defect, and if the defect came to light only later – if they did not notify the seller immediately after its determination.
Therefore, in order to be able to effectively exercise its rights under the guarantee, the buyer of the property must hold the care referred to in Article 563(1) k.c.
It is up to the acts of care: firstly, the work to examine the acquired item in a manner accepted for specified things; secondly, to immediately notify the seller of the defect detected.
The announcement of defects does not require a peculiar form, but the purchaser of the defective thing bears the burden of proof that the announcement has come to the addressee (Article 6 k.c.).
Thus, even if the disputed building (the immovable property) contained defects giving the buyer the right to exercise the rights arising from the warranty for physical defects referred to in Article 556(1) k.c., the failure to comply with the acts of care would consequence in the expiry of any rights arising from the provisions governing the warranty for physical defects of the goods sold.
However, the failure of warranty rights does not happen despite the failure of the time limits for the buyer to examine the items or to notify the seller of the defect if the seller knew of the defect or assured the buyer that there were no defects.
Term of exercise of rights with warrants for property defects
The seller shall be liable for the warranty if the physical defect of the property (building, apartment, premises) is established within 5 years of the date of issue of the goods to the buyer.
This word is not a limitation period, but a preclusive term.
It follows from the settled views of the doctrine and the jurisprudence of the ultimate Court that the effect of the expiry of the time limit leads to the termination of the claim for which it was reserved. It aims to temporarily limit the warranty, as an institution that does not favour certainty of trade and which shapes the liability of the seller for the defects of things sold under very strict rules (yes: resolution of the composition of 7 judges of 19 May1969 III CZP 5/68, OSNCP 1970, item 117 – legal rule; resolution of 5 July 2002, III CZP 39/02. OSNC 2003/6/78).
Commencement of the word of performance with warrants for property defects
If a defective premises were issued prior to the conclusion of the transfer of ownership contract, the period for exercising the rights with the warrant shall run from the date of conclusion of the contract. It is hard to accept that the purchasers of the premises will be subject to time limits for exercising the rights under the warranty before they get ownership under the sales contract.
However, it is irrelevant to keep the period referred to in Article 568. 1 k.c. the administrative act which was the authorisation to use. The beginning of the period referred to in that provision relates to the date of issue of the item, not to its putting into service (so: The Court of Appeal in Warsaw in its judgement of 5 December 2012 in Case No VI A Ca 705/12).
The time limit provided for in Article 568(1) k.c. for the exercise of rights, calculated ‘from the date on which the item was issued to the buyer’, may not start moving before the conclusion of the sale contract, but may start moving later if the item was issued later than the conclusion of the sale contract. If the sale afraid a item which, on the basis of another contract, was held by the buyer, that period shall begin to run erstwhile the sale contract is concluded (yes: judgement of the ultimate Court of 25 April 2014 II CSK 415/130, and The territory Court of Poznań in its judgement of 8 March 2016, ref. act XVIII C 330/15).
As the ultimate Court correctly pointed out, this is due to the fact that only the deposit of the provisions of Articles 556 to 576 k.c. in Title XI of the book of the 3rd civilian Code on the sale contract shows that the institution is strictly bound by the contract. It is simply a set of additional rights for the buyer to compensate for his position in the common agreement, according to which, in return for the price paid, he should receive an equivalent benefit from the seller in the form of an inefficient and corresponding thing. Therefore, the seller's liability for the defects is to conclude a sales contract and to issue and collect the goods by the buyer.
Deadline for the exercise of the warrant rights as regards the common thing
The period laid down for the exercise of the warrant rights shall run for each of the proprietors individually who exercise the power referred to in Article 209 k.c (Equipment of joint owners to act to preserve the common law). It is so incorrect to believe that this word starts moving for all owners of premises on the date of the first sale agreement. In order to measure its behaviour, it is so essential to set the dates for the conclusion of the sales contracts by those co-owners who have transferred rights to the Community plaintiff while determining whether the co-owner who has retained the time limit has besides correctly notified the defects (either alone or by the Community after the conclusion of the assignment agreement) (yes: The Court of Appeal in Warsaw in its judgement of 5 December 2012 in Case No VI A Ca 705/12).
Claims of the buyer on the marketplace of secondary property, vis-à-vis the developer
The entity purchasing the property on the secondary marketplace is not straight linked to the sale-purchase agreement with the developer. Thus, the buyer does not have the right to apply against the developer with warranty claims. However, it is possible to transfer these rights, in the form of assignment by the first real property buyer from the developer, to the secondary buyer.
Guarantee and compensation liability based on general principles
The civilian Code provides for 2 different liability regimes for the property seller. First of all, it is the liability of the warrant for physical defects in the property. Second, this is the compensation liability of ‘ex contract’ for improper performance or default (Articles 471 and n.c.).
In the light of Article 471 k.c., the conditions for ex contract compensation are:
- default or default of the debtor,
- damage to the creditor and
- the existence of an adequate causal link between the fact that the debtor has failed or failed to fulfil his work and the harm suffered by the creditor.
In addition, in accordance with Article 471 k.c., the debtor shall be liable for damages only if the failure to execute or execute the work is due to the circumstances for which he is liable. Article 472 k.c. clarifies that the rule is the liability of the debtor for failing to exercise due diligence in the performance of the obligation.
Independence of liability in respect of guarantees against damages based on general principles
The ultimate Court ruled in its judgement of 25 January 2006, act mention I CK 247/05 that liability under the warranty (Article 560 of the Code) is independent of liability for damages, based on general principles, i.e. Articles 471 et seq.
This independency is demonstrated by the fact that if a defect occurs has a choice as to how to get compensationbecause he can claim his rights with warrants for defects, he can besides claim compensation for the actual harm he has suffered. Moreover, the warranty rights for physical defects are not indemnificational and service to satisfy completely different interests than compensation claims.
Loss of warranty rights and the anticipation to claim contractual liability
Since the view now predominates that ex contract liability arising from improper performance or non-performance of a contract is subject to the rules laid down in Article 471 k.c. and is not linked to a circumstantial warrant regime, this means that claims arising from ex contract liability may besides be made after the failure of rights under the warranty (resolution of 7 ultimate Court judges of 13 May 1987, III CZP 82/86, OSNCP 1987, No 12, item 189 and resolution of the full composition of the civilian and Administrative Chamber of the ultimate Court of 30 December 1988, III CZP 48/88, OSNCP 1989, No 3, item 36).
In another words, even the failure of warranty rights by the buyer for defects does not destruct the anticipation for the buyer to claim compensation on a general basis for compensation for harm suffered by the buyer as a consequence of inadequate performance by the seller of defective goods. The seller's issuing of a defective item is undoubtedly besides an inappropriate performance of the obligation, the effects of which are subject to the provisions of Articles 471 et seq..
The warrant is in the interests of the buyer and in no way can it make his situation worse, but there are certain claims. The purchaser may besides not be curious in warranty claims and choose to accomplish its objectives by means of a contractual liability government on general terms (yes: judgement of the Court of Appeal in Katowice of 10 April 2018, Ref. Act I ACa 927/17).
A claim for compensation for harm caused by an improper execution of a improvement contract consisting in the sale of buildings with defects may be based on Articles 471 and 363(1). In fact, the liability of the counterparty for the provision of a defective item is assumed to be governed by the rules laid down in Article 471 of the Code and may be sought independently of the fulfilment of the conditions with the warrant (yes: the resolution of the composition of the 7 ultimate Court judges of 13 May 1987, III CZP 82/86. OSNCP 1987/12/189 and the resolution of the full composition of the civilian and Administrative Chamber of the ultimate Court of 30 December 1988, III CZP 48/88, OSNCP 1989/3/36).
The condition in which a organization to an agreement to establish a separate property and its sale receives a defective item from the seller alternatively of the item agreed in the contract allows the rightholder to request natural restitution in the form of the removal of defects of the property on the basis of general rules of contractual compensation liability (yes: the composition of the 7 ultimate Court judges of 12 February 1991. Ul CRN 500/90, OSNC 1992/7-8/137).
Grounds for the appearance of the buyer with compensation claim for improper construction of the building (real estate, premises)
As stated above, there are no obstacles for buyers to make a claim under Article 471 k.c. for inadequate performance of the sale contract. An improper performance of the work by the seller may consist in the fact that, in violation of the loyalty rule of the 2 parties to the sale agreement, he assured the buyers that the building being the subject of the transaction was free of defects, even though it was incompatible with the real state of affairs and gave the purchasers a defective thing.
The monetary amount of the buyer’s harm is expressed here by the difference between the amount of the price paid to the seller, equivalent to the unfailing object of the sale, and the value of the defective item at the time of its issue to the buyer.
The purchaser (cause) may besides establish a claim for damages on general terms (Article 471 of the Code), as a possible basis for the liability of the suspect of the seller, stating that, in the absence of any grounds to take account of the request for a simplification in the price with the warranty, he requests that the application be assessed as a claim for damages, based on Article 471 of the Code.
Liability based on general principles as a request for a possible action
The seller shall be liable under Article 471 k.c. not for the defects themselves, but for the harm caused by improper performance of the contract, consisting in the issue of the defective item to the buyer.
The acceptance of the defendant's liability pursuant to Article 471 of the Code shall not be subject to proof by the plaintiff that the incorrect execution of the undertaking is the consequence of the circumstances for which the suspect is responsible. It is up to the defendant, in order to be effectively released from his responsibility, to prove that his inadequate performance of his work was a consequence of circumstances for which he was not liable (yes: judgement of the Court of Appeal in Białystok of 18 February 2016); Act mention I ACa 948/15).
Contractual compensation claims related to defects in common property
Each buyer of a separate property shall be entitled to contractual compensation claims relating to defects in the common property. However, the specificity of these claims is that they concern the joint ownership of all owners of premises. This does not give emergence to peculiar problems in the event of a claim for compensation in money. The payment of the monetary amount is simply a divisible benefit, so each owner may claim compensation according to the size of his share.
In the case of the assignment of rights of the buyer under warranty for defects of common property to the housing community, he may transfer only a claim limited to the size of his share (yes: judgement of the Court of Appeal in Katowice of 10 April 2018, Ref. Act I ACa 927/17).
Damage suffered by buyers due to inadequate construction of the building (real estate)
The harm suffered by the purchasers in connection with the inadequate execution of the building (real estate) (ex contract liability) by the seller (e.g., developer) would be the cost of bringing the condition of the building to a state corresponding to the intended condition, i.e. the condition allowing it to reside in the conditions required by the construction law (yes: judgement of the Court of Appeal in Krakow of 31 May 2016, Act mention I ACa 937/15).
Legal basis for the choice of compensation for harm under liability under general rules
Pursuant to Article 363. § 1 kc, compensation for harm should be made, according to the choice of the victim, either by restoring the condition of the erstwhile 1 or by paying the appropriate monetary amount. However, if it is impossible to reconstruct the former, or if it involves excessive difficulties or costs for the obliged person, the injured person's claim is limited to money.
If the compensation is to be recovered in money, the amount of the compensation should be fixed at prices at the date of the compensation, unless peculiar circumstances require that the prices at another time be taken as a basis.
Based on a claim for damages only on warranty rights and ruling on damages on general principles
As the ultimate Court stated in its judgement of 11 December 2011, V CSK 180/09, Lex No. 551156, if the plaintiff indicated that he had requested the suspect to justice a certain amount for lowering the price of the defective thing, he so determined that he bases his actions on the government of liability of defendants for the defects of the sold thing and shaped the process as based on the absolute liability of defendants on a hazard basis.
In its message of reasons, the ultimate Court stated that it is not permissible, in specified a situation, to examine by the court of its own motion whether there are grounds for accepting damages from the defendant. Since the plaintiff in the suit chose the defendant's liability government for the defects of the goods sold and thus shaped the framework of the trial, including the scope of the defendant's defence and the cognition of the court, the court cannot, of its own motion, change the defendant's grounds of liability to compensation, due to the fact that this would distort the procedural balance of the parties and undermine the rule of impartiality of the court.
Art. 321 § 1 k.p.c., defining the limits of judgment, indicates that it is not possible to regulation on a thing that was not the subject of a demand, that is to say, to justice something another than the organization requested (principle ne Eat iudex ultra petita partium). The request for action so determines not only its object but besides its factual basis. The judgement of a monetary sum, which is within the limits of the amount of the action, but from a different factual standpoint, constitutes a judgement above the demand (yes: ultimate Court judgement of 18 March 2005 II CK 556/04, OSNC 2006, of 2, item 38; ultimate Court judgement of 7 November 2007 II CSK 344/07, Lex 388844).
Price simplification claim and contractual liability
The ultimate Court held in its judgement of 11 December 2012, Case CSK 180/09 that the claim for a price simplification was a claim only provided for in Article 560 k.c. concerning the liability of the seller in respect of the warranty for defects. This is not a claim for damages, as the harm within the meaning of Article 471 of the Code referred to in Article 361(2) of the Code is the difference between the situation of the injured person's property before and after the event causing the damage, i.e. the deterioration of the value of the defective thing and not its price in the manner set out in Article 560(3) of the Code.’;
Legitimate of the Housing Community to claim warranty
In its resolution of 23 September 2004 (Event III CZP 48/04) The ultimate Court, in deciding on the legal question whether the housing community has, pursuant to Article 6 of the Local Property Act, an active legitimacy to claim liability for physical defects relating to common property and compensation claims related to these defects, in relation to an entity which sold separate residential premises to its members in a recently built building, expressed its view, that the housing community does not have an active card to claim damages related to physical defects of the property common to the seller of the separate ownership of the premises, unless the owner of the premises has transferred these claims to it. However, the ultimate Court did not address this issue in the resolution cited.
Only those doubts were yet settled in the latest resolution of 29 January 2014 (Sygn Act III CZP 84/13), in which the ultimate Court of 7 judges stated that the owner of the premises could, on the basis of a transfer agreement, transfer to the housing community the rights he had to the seller of the premises in connection with the physical defects of the common property.
Thus, it was considered that, in terms of the legal capacity of the housing community, it is the acquisition of premises by transfer agreements from the owners and the subsequent investigation in a process initiated by the community against the seller of the premises, claims relating to the physical defects of the common property, although these are claims held individually by each owner, and their origin is an agreement to sale the separate ownership of the premises for an appropriate share of the common property. This includes claims which consist both of those arising from the rules on warranty for physical defects of the goods sold and compensation claims for defects of common parts on general terms.
The ultimate Court, in its judgement of 14 March 2007, Case I CSK 387/06, stated that the claims relating to the simplification of the price of owners of premises relating to their acquisition with physical defects of parts of the common building and to the compensation of the harm caused by the defective performance of contracts do not fall within the limits of the legal capacity of the residential community. Each buyer of a separate property shall be entitled to contractual compensation claims relating to the defects of a common property, although their specificity is that they concern the joint ownership of all owners of the premises.
On the another hand, in the resolution of the ultimate Court of 23 September 2004, the mention to Act III CZP 48/04 stated that the housing community did not have an active legitimacy to search redress for physical defects common property, in relation to the seller of the separate property of the residential premises, unless the owner of the premises has transferred these claims to it.
The Housing Community has an active procedural clearance to issue a claim for damages in so far as it relates to claims transferred to it by the individual owners of the premises of claims for damages; this is only about claims which are related to physical defects in the parts of the common building and which have been effectively transferred to the community by the first owners, i.e. those who purchased premises in the property straight from the defendant. The plaintiff so did not get the claims in full, but in a crucial part of them (yes: judgement of the Court of Appeal in Warsaw of 23 April 2013 No. VI Aca 975/12).
Transfer to the housing community of claims for physical defects of buildings as an act of average management
In the light of the link between claims relating to the removal of defects in part of the building with the management of the property, the management of the housing community has the power to conclude a contract on behalf of the community for the transfer of claims for physical defects of the buildings. specified action should be assessed as a average management activity related to the management of a common property.
The operation of the average board of directors is undoubtedly the collection of funds on the repair fund account to meet the needs of maintaining the appropriate position of common properties. It is hard to recognise that the additional presentation of claims for a simplification in the sales price of premises is not included in the catalogue of average management activities. Furthermore, specified a kind of action is not mentioned as an activity exceeding the scope of the average board of directors in the wording of Article 22 of the Local Property Act. Therefore, there is no attitude to claim that the Community’s plaintiff’s admin should have a separate Community resolution authorising the conclusion on behalf of the Community of an agreement to delegate claims (yes: judgement of the Wrocław territory Court of 13 March 2014, Ref. I C 482/13).
The Court of Appeal in Katowice in its judgement of 10 April 2018, Act mention I ACa 927/17, ruled that the owner of the premises may, on the basis of a transfer agreement, transfer to the housing community the rights he enjoys vis-à-vis the seller of the premises in connection with the physical defects of the common property, which applies to both the rights with the warrant and the contractual compensation claims.
Sale of real property (houses, buildings) during the warranty run
The Court of Appeal in Wrocław in its judgement of 18 March 2014, Ref. Act I ACa 128/14, stated that the rights with the warranty belong to the buyer, regardless of whether he retains ownership or possession of the goods sold during the warranty period.
Examples of requests to experts in judicial proceedings
Examples of conclusions with respect to expert opinions (with justification for the judgement of the Warsaw territory Court of 19 September 2016, Act III C 1634/06):
- to show the existence of an executive defect and its scope and to find the value of the works essential to remove the defect (e.g. in the field of sandstone covering of tiny architecture walls, according to the housing architecture standards);
- establishing whether incorrect/non-conform building facade materials were utilized during the construction of the squad and the waterproofing of the terraces and balconies of all floors was incorrectly performed, resulting in the moisture of the facade and the request to replace it, and the determination of the value of the work essential to remove these defects, taking into account the natural process of utilizing the facade due to the passage of time and the request for periodic maintenance of it;
- in the case of an affirmative consequence from the erstwhile point, whether, erstwhile replacing elevations only on a given floor, its standard, colour/invoice will be different from those presently located on buildings, and whether it can be considered that the squad standard will decrease;
- an update of the opinion already drawn up in relation to the change in the scope of the time defects and the determination of the value of the work needed to remedy those defects;
- establishing the marketplace value of the full settlement on the basis of transaction prices of the settlements from the marketplace for the state of failure and on the basis of method opinions on the defects and defects of the settlements prepared by experts, in addition to the decrease in the value of stairways, halls and corridors of all buildings due to the simplification of the finishing standard in so far as they are damaged, cracked, disposed in expert opinions, the determination of the percent failure of marketplace value of the settlement in relation to the state of failure;
Examples of building defects (real estates) from court case-law:
No ventilation chimneys, wet terrain, planting of structures on stakes, external penetration of moisture into the building
The Court of Appeal of Białystok in its judgement of 18 February 2016, Ref. Act I ACa 948/15 concluded that the building's defects were not (seen already during its inspection prior to the acquisition transaction): deficiency of ventilation chimneys, construction of a home in wetland, or the application of a derogation from the construction plan and planting of a structure on a stake alternatively of a foundation bench. However, in the present condition, the disadvantages of this building were that the solutions utilized to build the home proved to be ineffective.
Thus, it was not the deficiency of ventilation chimneys that was in itself a drawback of the building, but the deficiency of functionality of the ‘replacement’ made gravitational ventilation system. The same is actual of putting a building on stakes. According to the opinion of the appointed judicial expert, specified a structural change was permissible. Moreover, the expert’s examinations show that this kind of solution fulfils its structural function. The defect is due to the deficiency of adequate protection (insulation) of anti-silicon and anti-hydrogen, resulting in external penetration of moisture into the building. On the another hand, the buyer could not find out about these defects on the date of acquisition of the property, but only during its use. It was besides these drawbacks that reduced the value and usefulness of the residential building, from the point of view of the intent of the thing.
Planting the building at a level equal to the ground layer
In addition, the court found that the building was flawed, among others, by planting the building on a level equal to the ground layer, by failing to guarantee continuity of vertical and horizontal insulations, by failing to fulfil its functions the ventilation installation, the deficiency of linear dehydration, etc. This was motivated by the fact that the existence of these defects undoubtedly not only reduced the functionality of the building, but besides caused its demolition as a consequence of the moisture of the walls. They so reduced the usefulness of the building due to its purpose, which means that these disadvantages corresponded to the criteria set out in Article 556(1) k.c. So, in principle, the plaintiffs, citing these circumstantial disadvantages, could usage the warranty rights for the physical defects of the goods sold.
Inverted thrust (so-called cofka), deficiency of full insulation of the ceiling, besides low heat insulation thickness on walls
The territory Court of Słupsk, in its judgement of 25 October 2013, ref. Act I C 156/12, stated that the deficiency of full insulation of the ceiling over the ground floor, besides low heat insulation on the outer walls, no air vents in the windows, no brick chimney for kitchen ventilation with dining room, indicates that the residential building was released to the buyer in incomplete condition.
Deficiencies of foundations, load-bearing walls, ceilings, roofs and stairs for communication between levels
The physical defects of the building are any defects that reduce its value or reduce its method usefulness, e.g. defects of foundations, load-bearing walls, ceilings, roofs and stairs for communication between levels. The simplification in method utility is to reduce safety standards resulting from regulations, design, specified in the sales contract or resulting from the difference between actual execution and the provision of the seller (yes: J. J. Z., B. P.: the liability of the seller for the physical defects of the building, Pip (...), pp. 67-68, and the Warsaw-Prague territory Court in Warsaw in its judgement of 22 December 2014, Ref. Act I C 710/08).
No adequate protection of the building against groundwater and rainwater flooding (no drainage drain)
Regional Court in Wrocław in judgement of 20 December 2017. Ref. Act II Ca 844/17 considers that the absence of adequate protection against flooding of the building is undoubtedly a disadvantage. The failure to guarantee appropriate insulation of the building prior to water access to its interior is the faulty action of the suspect who failed to guarantee appropriate method insulation of the building. On the bench of the case, the court indicated that the construction task provided for direct planting of the building in the form of benches and foundation feet, with the clear condition that a drainage drainage should be performed at the level of the planting around the foundations. In the end, this drain was not made due to the fact that it was not provided for in the implementing project, as it was decided to apply another technological solution to the insulation of the building. However, the suspect should apply a solution that would let effective protection of the building from groundwater and rainwater and appropriate usage of its dwellings, which it failed to meet.
