In a claim for construction defects, can you ask directly for compensation for the defects claimed?
In claims for construction defects (hairline cracks, cracks, damp…), there used to be considerable legal debate as to whether you had to request repair of the defects or could request compensation directly.
Initially, the obligation to do something (repair) took precedence, and compensation could only be requested where the injured party had already carried out the repair, since they could not be required to wait for the outcome of the proceedings before repairing, whether for reasons of urgency, which may arise, because of a lack of trust in whoever would have to carry out the repair under the judgment, or simply because there had been previous unsuccessful attempts at repair.
This question of whether it is possible to claim compensation instead of repair “in natura” is now settled, in that the most recent approach in case law holds that a party harmed by building defects has three possible actions available, from which they may choose whichever best suits and serves their interests: repair in natura, reimbursement of the sums spent, and payment of money so that the injured party can carry out the repair (because the aim is to make the injured party whole).
That is:
- a) Repair “in natura”, so that those responsible for the defects fulfil their obligation to do something, namely to carry out the works owed in order to repair them.
- b) Compensation for the loss and damage caused by the serious defects, with those responsible for the defects reimbursing the sums that the injured parties have already spent on repairing them.
- c) Compensation for the loss and damage caused by the defects, setting a specific amount so that the party harmed by the defects can meet the cost of the works themselves needed to repair the part of the building affected by the construction defects.
Therefore, you can ask directly for compensation, covering not only the strict repair of the defects but also items such as overheads, contractor’s profit, permits, professional fees and VAT, which must be included in the amount of compensation, since the claimants will have to bear those costs in order to carry out the repair of the defects.
If you would like advice, do not hesitate to tell us about your case and contact us.
Any questions?