During proceedings to claim for construction defects, clients have asked us on many occasions whether they could carry out repairs, fix this or that, paint over the cracks or repair the damp, because they could no longer put up with it. All the more so given how long this type of proceedings lasts, which, with the way the justice system works, can seem like an eternity.
We understand that it must take real effort for owners to hold back from repairing, since nobody likes to see their building in such a sorry state, with damage, cracks and damp, especially if the damage is getting worse.
Despite the inconvenience, as a general rule the advisable course is not to repair. The opposing parties must be able to verify that damage, which must be seen exactly as it was recorded in the expert report, so that when the opposing experts they appoint visit (and they are entitled to inspect the property once authorised to do so), they can obviously find all the damage being claimed. If they do not find part of that damage, they will argue that the claim should therefore not be upheld in full (with all that this entails in terms of legal costs).
Repairs should only be carried out in cases of urgent need, and the legal team in the proceedings can put this on record before the Court. In such cases repair invoices can be submitted, describing precisely what has been repaired, why and on what date. Even so, the other side will always argue that the most expensive and least suitable repair was chosen, and that they should have been given the opportunity to carry out the repairs themselves.
That is why, as a general rule, we advise against repairing, although each item of damage should be examined individually, since there are indeed times when repairs must be made to prevent the damage from getting worse, with the Court informed beforehand and in line with what is sought in the lawsuit. For this reason, we ask property administrators always to consult us before repairing any damage that is being claimed in a construction defects lawsuit, in the interests of the case and of the homeowners’ association itself. At the very least, the opposing experts must be allowed to see the damage being claimed exactly as it appears in our report/lawsuit.
Any questions?