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Deficiencies and complaints

Kortversjonen

1. Introduction

Building defects and defects are one of the really big challenges within the construction industry, and perhaps the one that has received the most attention from the legislature in recent decades. It was the scale of such circumstances that justified why the authorities introduced the liability law system into the Plan and Buildings Act in the late 1990s, and which also justified the introduction of independent control almost 15 years later.

Otherwise, it is on the very takeover that the real assessment of the contractor's delivery should take place. It is at this time that the builder has the right to take over the object of the contract, and without defects and defects. Up to this point, it is the contractor who has full disposal of his work, but the counterpart is that his work becomes the subject of a thorough evaluation at this time at the latest.

In the standard contracts there are many provisions that regulate the questions that raise with respect to deficiencies, and it is these that we will consider in more detail in this article.

Before we do so, however, it may be appropriate to recall certain provisions that are of relatively central importance for the interaction of the parties leading up to the takeover.

First, we have the provision that the contractor cannot rely on the fact that the works have been carried out under the supervision of the builder in order to avoid liability for defects, cf. NS 8407 paragraphs 20.2 and 20.3, NS 8405 paragraph 14.1 and NS 8406 paragraph 14.

Secondly, we have the provision on the obligation of the contractor to correct conditions during the construction period in which the works have been carried out in violation of the contract or are due to damage, cf. NS 8407 paragraph 20.5 and NS 8405 paragraph 11.2.

Thirdly, we have the provisions concerning the closure of the construction case, which, among other things, deal with the requirements for testing, regulation, etc., well before the notice of takeover and subsequent submission of test documentation, cf. NS 8407 paragraph 36.1 and NS 8405 paragraph 32.2.

Fourth, we refer to the provision on notice of takeover business, cf. NS 8407 item 36.3 which requires that the general contractor has completed a separate inspection, written lists of defects he himself has discovered and unfinished works and submitted these to the builder as part of the notice.

Fifth, we refer to NS 840 paragraph 37.1, where it is stated that the general contractor must submit the list from the completion inspection, which should also state what he has corrected and/or completed since the list was transmitted to the builder as part of the notice of takeover business.

One might think that the rules are circumstantial, but very simplistic one might say that it is rather based on the old principle of “sausage versus money”, or the principle of simultaneity. On the takeover, the builder shall receive the defect-free item against paying the contractor the remainder. If the item is not flawless, the builder is not obliged to pay the full remaining amount.

Now we move on to dealing with the rules that specifically relate to defects, complaints and the contractor's right and obligation to rectify.

2. Overview of the rules

The rules we are now going to look at are in NS 8407 paragraph 42, NS 8405 paragraph 36 and NS 8406 paragraph 27.

Unlike most other subjects, virtually all provisions are dealt with in all three standard contracts. That in itself is a strong expression of how important these provisions are both in themselves, and considered to be in practice.

We will deal with the rules in the order stated in NS 8407 since this is the standard contract that is used most often today.

3. What is a deficiency?

The standard contracts' provision for “shortage” is quite short. There is a deficiency if the subject of the contract is not “in the condition that the builder is entitled to under the contract, and this is due to conditions for which the contractor is responsible”. The provisions of NS 8407 paragraph 42.1, NS 8405 paragraph 36.1 and NS 8406 paragraph 27.1 are similar in their wording.

This means, of course, that it is the agreement with all its annexes that forms the starting point for the builder's judgment of the subject matter of the contract. When making that assessment, there will be a relatively large difference between turnkey contracts (NS 8407) and execution centres (NS 8405 and NS 8406).

In the execution centres, the builder has detailed designs and thus it becomes a relatively easier exercise to decide whether the execution is in accordance with the design than in turnkey contracts.

In turnkey contracts, the builder has set functional requirements that the general contractor must find a way to meet in his detailed design. As previously stated, the general contractor may have relatively large freedom of choice as long as he remains within the scope of the contract.

This means that the builder should consider being far better staffed with experts on the takeover in a turnkey contract, than what he needs to be in an execution centre.

Since there are functional requirements to be assessed, it must also be taken into account that the general contractor may have chosen not to use preaccepted solutions, cf the supervisor of TEK 17. In such cases, the general contractor must be able to document that the selected solution nevertheless meets the functional requirements of TEK 17 and in that case it must be done by presenting analyses, cf. TEK 17 § 2-2 (2) letter b and paragraph 3.

In addition, the special requirements for testing, regulation, etc. that apply to technical facilities in turnkey contracts are obtained. Within this type of control of the contract object, special requirements are imposed on those who will assist the builder. For both the builder and the general contractor, we believe that it is advantageous to adhere to the relevant standards and supervisors, as well as to have competent personnel with them during the testing.

In addition, of course, there are all other checks where the execution center and the turnkey price are more comparable, such as checking that the correct materials have been used, that details have been made in a workmanlike manner, etc.

With that said, we believe a picture has been given on our part that the question of whether something is to be considered a defect or not is governed by the agreement and the requirements that can be derived from it, and so competent and qualified people must be involved to assist the builder.

4. Complaints

4.1 Introduction

When it comes to complaint deadlines, we distinguish between two different ones, namely the relative and the absolute deadline for complaints.

The relative claim deadline refers to how quickly after the creditor (here; the builder) has, or should have, discovered a defect the debtor (here; the contractor) reports to the debtor (here; the contractor). If the builder does not react quickly enough and reports a defect (complains), he risks losing his claim for, for example, rectification. The reason for this rule is that the contractor should receive a notice as early as possible so that he can take the necessary measures to avoid, among other things, the defect developing, causing damage to other parts of the contract object, etc. So the relative time limit for complaint is given in order to safeguard the interests of the contractor in the sense that he should be able to limit his loss (liability for remediation) as far as possible.

The absolute notice period is about how long the contractor should have the potential defect liability hanging over him. As long as a builder can complain about defects, the contractor must allocate resources to be able to handle his defect liability should such defects materialize. The longer the time elapsed since the work was handed over to the builder, the greater the likelihood that defects or weaknesses arising from the contract object may be due to errors and omissions on the part of the builder — for example as a result of inadequate maintenance. Nor is it beneficial for the social economy that one as an entrepreneur should walk around and have a perpetual responsibility for possible mistakes. Most failures will also materialize within a relatively reasonable time counted from the takeover. After balancing a number of considerations that are partly contradictory, it has therefore ended up that the absolute deadline for complaints is five years. Since it is the takeover that is the deadline for calculating the complaint deadline, it means that on the day five years after the takeover transaction was closed (and the protocol signed and dated) the absolute complaint deadline expires. After this, the builder cannot — as a general rule — complain about the defects and defects that may be uncovered.

4.2 Complaints in case of takeover

In the standard contracts, strict requirements are imposed on the builder when it comes to the takeover business, and therefore the builder should be well prepared and represented when it is held.

It is clear from the provisions of the standard contracts on complaints in the event of a takeover that the builder loses his right to advertise if he does not advertise the takeover in respect of matters which he “have or should have discovered”.

We do not go into all the possible factors that can play into the assessment of what one “should have discovered” Maybe they shouldn't have discovered it. This can often be a very situational assessment, and it falls far too far to use examples.

The general advice is that the builder meets well prepared, has reviewed all test documentation and FDV documentation, carried out inspections in advance and then spends a lot of time on the takeover so that one is sure that everything visible has been completed. It is often a good idea to review as built drawings and including fire drawings in advance, but it is also part of the FDV documentation.

If you have first done a thorough job and been careful to note down all deficiencies detected in the protocol as you should, cf. NS 8407 paragraph 42.2.1, you will normally be well within the obligations of advertising.

4.3 Subsequent complaints

In NS 8407 paragraph 42.2.2, NS 8405 paragraph 36.7 and NS 8406 paragraph 27.6, one finds the provision on the absolute deadline for complaints of five years after the takeover.

Within the period between the takeover and the expiry of the calendar day that falls five years after the takeover, the developer must advertise “within a reasonable time” after he “have or should have discovered” the shortage.

In other words, he can't wait until it has well nearly five years. It is important that contractors are notified as soon as possible, which is why complaints must be made “within a reasonable time”.

What is meant by “reasonable time” we have some case law on it, and you can probably say that it is acceptable to advertise within a week or two, but it cannot be several months from the time when defects are discovered and until one advertises. In addition, the type of deficiency and not least the possible consequences of not reporting the deficiency will very soon play into the assessment of what is reasonable time.

In the case of a condition that does not deteriorate and does not entail any risk of consequential damage, it is easier to conclude that a couple of weeks of “waiting” to advertise is acceptable, while the same is not a natural consequence if the wait implies that the defect deteriorates drastically and/ or causes damage to other parts of the construction. The latter will be the case, for example, if there are water leaks and then one should not wait to advertise at all.

Finally, mention is made of the rule that a new claim period of five years runs on all parts of the contract subject that are rectified, but limited to one year counted from the expiration of the absolute five-year deadline. We refer in this regard to NS 8407 paragraph 42.2.2, second paragraph, NS 8405 paragraph 36.7, third paragraph and NS 8406 paragraph 27.6, third paragraph.

4.4 Gross negligence and intent

All standard contracts have a separate provision that the deadlines for complaints do not apply if a defect is due to gross negligence or intent on the part of the contractor.

In order for gross negligence or intent to be considered to exist, there will normally be very serious circumstances in which the work performed is found to be fraught with significant errors or omissions.

It is often said that the defect must be due to an embodiment that represents a “marked deviation from the requirement of prudent course of action” and it has to be about a “conduct which is highly reprehensible, in which the person concerned is therefore substantially more to blame than in the case of general negligence”, cf Rt 1989 p 1318.

Since the consequence of this form of guilt is the same, it is sufficient to focus on whether there is gross negligence.

For something to be considered to represent gross negligence, it is inherent in this that the person responsible is strongly to be reproached.

In other words, sloppiness is not enough, nor is it natural to apply such a term to curant construction work.

If, for example, one has nailed lying cladding with excessive pressure on the nail gun so that the wood fibers around the nail hole are broken with a correspondingly increased probability of somewhat shorter service life of the panel, it is unnatural to characterize this as grossly negligent.

If, on the other hand, you glaze balconies in a larger condominium with many floors and use shatterable glass that is not dimensioned for snow or other forms of stress, the probability of the glass shattering and flaring to the ground will be unacceptably high. The extent and severity of possible consequential damage if such glass falls from a great height and hits people below would be considerable. In such a situation, one will probably reasonably quickly be able to conclude that the deficiency is due to gross negligence.

We do not go into this further because these types of situations and not least assessments suggest that a lawyer should be involved.

Incidentally, it is primarily in situations where the deadlines for complaints have expired that one normally finds reason to plead gross negligence and intent.

5. Relationship with the statute of limitations

In NS 8407, paragraph 42.2.4, a provision has been made on the relation of the complaint rules to the statute of limitations in the statute of limitations. A similar provision does not exist in NS 8405 and NS 8406, but it has no legal significance. In NS 8407, it is included to inform the parties, and the same, of course, should have been done in the other two standard contracts.

The statute of limitations applies universally, and we have written a separate article on the relationship between complaint rules and statute of limitations rules, read here.

Keep in mind that a claim may be obsolete even if you have remembered to advertise on time in accordance with the complaint rules. Similarly, one may have advertised too late and thus lost their claim, even if the claim is not obsolete.

For an entrepreneur, it is important to be careful with these rules so that one does not unnecessarily assume responsibility for something that is already obsolete.

Tilbake

Deficiencies and complaints

Kortversjonen

1. Introduction

Building defects and defects are one of the really big challenges within the construction industry, and perhaps the one that has received the most attention from the legislature in recent decades. It was the scale of such circumstances that justified why the authorities introduced the liability law system into the Plan and Buildings Act in the late 1990s, and which also justified the introduction of independent control almost 15 years later.

Otherwise, it is on the very takeover that the real assessment of the contractor's delivery should take place. It is at this time that the builder has the right to take over the object of the contract, and without defects and defects. Up to this point, it is the contractor who has full disposal of his work, but the counterpart is that his work becomes the subject of a thorough evaluation at this time at the latest.

In the standard contracts there are many provisions that regulate the questions that raise with respect to deficiencies, and it is these that we will consider in more detail in this article.

Before we do so, however, it may be appropriate to recall certain provisions that are of relatively central importance for the interaction of the parties leading up to the takeover.

First, we have the provision that the contractor cannot rely on the fact that the works have been carried out under the supervision of the builder in order to avoid liability for defects, cf. NS 8407 paragraphs 20.2 and 20.3, NS 8405 paragraph 14.1 and NS 8406 paragraph 14.

Secondly, we have the provision on the obligation of the contractor to correct conditions during the construction period in which the works have been carried out in violation of the contract or are due to damage, cf. NS 8407 paragraph 20.5 and NS 8405 paragraph 11.2.

Thirdly, we have the provisions concerning the closure of the construction case, which, among other things, deal with the requirements for testing, regulation, etc., well before the notice of takeover and subsequent submission of test documentation, cf. NS 8407 paragraph 36.1 and NS 8405 paragraph 32.2.

Fourth, we refer to the provision on notice of takeover business, cf. NS 8407 item 36.3 which requires that the general contractor has completed a separate inspection, written lists of defects he himself has discovered and unfinished works and submitted these to the builder as part of the notice.

Fifth, we refer to NS 840 paragraph 37.1, where it is stated that the general contractor must submit the list from the completion inspection, which should also state what he has corrected and/or completed since the list was transmitted to the builder as part of the notice of takeover business.

One might think that the rules are circumstantial, but very simplistic one might say that it is rather based on the old principle of “sausage versus money”, or the principle of simultaneity. On the takeover, the builder shall receive the defect-free item against paying the contractor the remainder. If the item is not flawless, the builder is not obliged to pay the full remaining amount.

Now we move on to dealing with the rules that specifically relate to defects, complaints and the contractor's right and obligation to rectify.

2. Overview of the rules

The rules we are now going to look at are in NS 8407 paragraph 42, NS 8405 paragraph 36 and NS 8406 paragraph 27.

Unlike most other subjects, virtually all provisions are dealt with in all three standard contracts. That in itself is a strong expression of how important these provisions are both in themselves, and considered to be in practice.

We will deal with the rules in the order stated in NS 8407 since this is the standard contract that is used most often today.

3. What is a deficiency?

The standard contracts' provision for “shortage” is quite short. There is a deficiency if the subject of the contract is not “in the condition that the builder is entitled to under the contract, and this is due to conditions for which the contractor is responsible”. The provisions of NS 8407 paragraph 42.1, NS 8405 paragraph 36.1 and NS 8406 paragraph 27.1 are similar in their wording.

This means, of course, that it is the agreement with all its annexes that forms the starting point for the builder's judgment of the subject matter of the contract. When making that assessment, there will be a relatively large difference between turnkey contracts (NS 8407) and execution centres (NS 8405 and NS 8406).

In the execution centres, the builder has detailed designs and thus it becomes a relatively easier exercise to decide whether the execution is in accordance with the design than in turnkey contracts.

In turnkey contracts, the builder has set functional requirements that the general contractor must find a way to meet in his detailed design. As previously stated, the general contractor may have relatively large freedom of choice as long as he remains within the scope of the contract.

This means that the builder should consider being far better staffed with experts on the takeover in a turnkey contract, than what he needs to be in an execution centre.

Since there are functional requirements to be assessed, it must also be taken into account that the general contractor may have chosen not to use preaccepted solutions, cf the supervisor of TEK 17. In such cases, the general contractor must be able to document that the selected solution nevertheless meets the functional requirements of TEK 17 and in that case it must be done by presenting analyses, cf. TEK 17 § 2-2 (2) letter b and paragraph 3.

In addition, the special requirements for testing, regulation, etc. that apply to technical facilities in turnkey contracts are obtained. Within this type of control of the contract object, special requirements are imposed on those who will assist the builder. For both the builder and the general contractor, we believe that it is advantageous to adhere to the relevant standards and supervisors, as well as to have competent personnel with them during the testing.

In addition, of course, there are all other checks where the execution center and the turnkey price are more comparable, such as checking that the correct materials have been used, that details have been made in a workmanlike manner, etc.

With that said, we believe a picture has been given on our part that the question of whether something is to be considered a defect or not is governed by the agreement and the requirements that can be derived from it, and so competent and qualified people must be involved to assist the builder.

4. Complaints

4.1 Introduction

When it comes to complaint deadlines, we distinguish between two different ones, namely the relative and the absolute deadline for complaints.

The relative claim deadline refers to how quickly after the creditor (here; the builder) has, or should have, discovered a defect the debtor (here; the contractor) reports to the debtor (here; the contractor). If the builder does not react quickly enough and reports a defect (complains), he risks losing his claim for, for example, rectification. The reason for this rule is that the contractor should receive a notice as early as possible so that he can take the necessary measures to avoid, among other things, the defect developing, causing damage to other parts of the contract object, etc. So the relative time limit for complaint is given in order to safeguard the interests of the contractor in the sense that he should be able to limit his loss (liability for remediation) as far as possible.

The absolute notice period is about how long the contractor should have the potential defect liability hanging over him. As long as a builder can complain about defects, the contractor must allocate resources to be able to handle his defect liability should such defects materialize. The longer the time elapsed since the work was handed over to the builder, the greater the likelihood that defects or weaknesses arising from the contract object may be due to errors and omissions on the part of the builder — for example as a result of inadequate maintenance. Nor is it beneficial for the social economy that one as an entrepreneur should walk around and have a perpetual responsibility for possible mistakes. Most failures will also materialize within a relatively reasonable time counted from the takeover. After balancing a number of considerations that are partly contradictory, it has therefore ended up that the absolute deadline for complaints is five years. Since it is the takeover that is the deadline for calculating the complaint deadline, it means that on the day five years after the takeover transaction was closed (and the protocol signed and dated) the absolute complaint deadline expires. After this, the builder cannot — as a general rule — complain about the defects and defects that may be uncovered.

4.2 Complaints in case of takeover

In the standard contracts, strict requirements are imposed on the builder when it comes to the takeover business, and therefore the builder should be well prepared and represented when it is held.

It is clear from the provisions of the standard contracts on complaints in the event of a takeover that the builder loses his right to advertise if he does not advertise the takeover in respect of matters which he “have or should have discovered”.

We do not go into all the possible factors that can play into the assessment of what one “should have discovered” Maybe they shouldn't have discovered it. This can often be a very situational assessment, and it falls far too far to use examples.

The general advice is that the builder meets well prepared, has reviewed all test documentation and FDV documentation, carried out inspections in advance and then spends a lot of time on the takeover so that one is sure that everything visible has been completed. It is often a good idea to review as built drawings and including fire drawings in advance, but it is also part of the FDV documentation.

If you have first done a thorough job and been careful to note down all deficiencies detected in the protocol as you should, cf. NS 8407 paragraph 42.2.1, you will normally be well within the obligations of advertising.

4.3 Subsequent complaints

In NS 8407 paragraph 42.2.2, NS 8405 paragraph 36.7 and NS 8406 paragraph 27.6, one finds the provision on the absolute deadline for complaints of five years after the takeover.

Within the period between the takeover and the expiry of the calendar day that falls five years after the takeover, the developer must advertise “within a reasonable time” after he “have or should have discovered” the shortage.

In other words, he can't wait until it has well nearly five years. It is important that contractors are notified as soon as possible, which is why complaints must be made “within a reasonable time”.

What is meant by “reasonable time” we have some case law on it, and you can probably say that it is acceptable to advertise within a week or two, but it cannot be several months from the time when defects are discovered and until one advertises. In addition, the type of deficiency and not least the possible consequences of not reporting the deficiency will very soon play into the assessment of what is reasonable time.

In the case of a condition that does not deteriorate and does not entail any risk of consequential damage, it is easier to conclude that a couple of weeks of “waiting” to advertise is acceptable, while the same is not a natural consequence if the wait implies that the defect deteriorates drastically and/ or causes damage to other parts of the construction. The latter will be the case, for example, if there are water leaks and then one should not wait to advertise at all.

Finally, mention is made of the rule that a new claim period of five years runs on all parts of the contract subject that are rectified, but limited to one year counted from the expiration of the absolute five-year deadline. We refer in this regard to NS 8407 paragraph 42.2.2, second paragraph, NS 8405 paragraph 36.7, third paragraph and NS 8406 paragraph 27.6, third paragraph.

4.4 Gross negligence and intent

All standard contracts have a separate provision that the deadlines for complaints do not apply if a defect is due to gross negligence or intent on the part of the contractor.

In order for gross negligence or intent to be considered to exist, there will normally be very serious circumstances in which the work performed is found to be fraught with significant errors or omissions.

It is often said that the defect must be due to an embodiment that represents a “marked deviation from the requirement of prudent course of action” and it has to be about a “conduct which is highly reprehensible, in which the person concerned is therefore substantially more to blame than in the case of general negligence”, cf Rt 1989 p 1318.

Since the consequence of this form of guilt is the same, it is sufficient to focus on whether there is gross negligence.

For something to be considered to represent gross negligence, it is inherent in this that the person responsible is strongly to be reproached.

In other words, sloppiness is not enough, nor is it natural to apply such a term to curant construction work.

If, for example, one has nailed lying cladding with excessive pressure on the nail gun so that the wood fibers around the nail hole are broken with a correspondingly increased probability of somewhat shorter service life of the panel, it is unnatural to characterize this as grossly negligent.

If, on the other hand, you glaze balconies in a larger condominium with many floors and use shatterable glass that is not dimensioned for snow or other forms of stress, the probability of the glass shattering and flaring to the ground will be unacceptably high. The extent and severity of possible consequential damage if such glass falls from a great height and hits people below would be considerable. In such a situation, one will probably reasonably quickly be able to conclude that the deficiency is due to gross negligence.

We do not go into this further because these types of situations and not least assessments suggest that a lawyer should be involved.

Incidentally, it is primarily in situations where the deadlines for complaints have expired that one normally finds reason to plead gross negligence and intent.

5. Relationship with the statute of limitations

In NS 8407, paragraph 42.2.4, a provision has been made on the relation of the complaint rules to the statute of limitations in the statute of limitations. A similar provision does not exist in NS 8405 and NS 8406, but it has no legal significance. In NS 8407, it is included to inform the parties, and the same, of course, should have been done in the other two standard contracts.

The statute of limitations applies universally, and we have written a separate article on the relationship between complaint rules and statute of limitations rules, read here.

Keep in mind that a claim may be obsolete even if you have remembered to advertise on time in accordance with the complaint rules. Similarly, one may have advertised too late and thus lost their claim, even if the claim is not obsolete.

For an entrepreneur, it is important to be careful with these rules so that one does not unnecessarily assume responsibility for something that is already obsolete.

Tilbake

Deficiencies and complaints

Kortversjonen

1. Introduction

Building defects and defects are one of the really big challenges within the construction industry, and perhaps the one that has received the most attention from the legislature in recent decades. It was the scale of such circumstances that justified why the authorities introduced the liability law system into the Plan and Buildings Act in the late 1990s, and which also justified the introduction of independent control almost 15 years later.

Otherwise, it is on the very takeover that the real assessment of the contractor's delivery should take place. It is at this time that the builder has the right to take over the object of the contract, and without defects and defects. Up to this point, it is the contractor who has full disposal of his work, but the counterpart is that his work becomes the subject of a thorough evaluation at this time at the latest.

In the standard contracts there are many provisions that regulate the questions that raise with respect to deficiencies, and it is these that we will consider in more detail in this article.

Before we do so, however, it may be appropriate to recall certain provisions that are of relatively central importance for the interaction of the parties leading up to the takeover.

First, we have the provision that the contractor cannot rely on the fact that the works have been carried out under the supervision of the builder in order to avoid liability for defects, cf. NS 8407 paragraphs 20.2 and 20.3, NS 8405 paragraph 14.1 and NS 8406 paragraph 14.

Secondly, we have the provision on the obligation of the contractor to correct conditions during the construction period in which the works have been carried out in violation of the contract or are due to damage, cf. NS 8407 paragraph 20.5 and NS 8405 paragraph 11.2.

Thirdly, we have the provisions concerning the closure of the construction case, which, among other things, deal with the requirements for testing, regulation, etc., well before the notice of takeover and subsequent submission of test documentation, cf. NS 8407 paragraph 36.1 and NS 8405 paragraph 32.2.

Fourth, we refer to the provision on notice of takeover business, cf. NS 8407 item 36.3 which requires that the general contractor has completed a separate inspection, written lists of defects he himself has discovered and unfinished works and submitted these to the builder as part of the notice.

Fifth, we refer to NS 840 paragraph 37.1, where it is stated that the general contractor must submit the list from the completion inspection, which should also state what he has corrected and/or completed since the list was transmitted to the builder as part of the notice of takeover business.

One might think that the rules are circumstantial, but very simplistic one might say that it is rather based on the old principle of “sausage versus money”, or the principle of simultaneity. On the takeover, the builder shall receive the defect-free item against paying the contractor the remainder. If the item is not flawless, the builder is not obliged to pay the full remaining amount.

Now we move on to dealing with the rules that specifically relate to defects, complaints and the contractor's right and obligation to rectify.

2. Overview of the rules

The rules we are now going to look at are in NS 8407 paragraph 42, NS 8405 paragraph 36 and NS 8406 paragraph 27.

Unlike most other subjects, virtually all provisions are dealt with in all three standard contracts. That in itself is a strong expression of how important these provisions are both in themselves, and considered to be in practice.

We will deal with the rules in the order stated in NS 8407 since this is the standard contract that is used most often today.

3. What is a deficiency?

The standard contracts' provision for “shortage” is quite short. There is a deficiency if the subject of the contract is not “in the condition that the builder is entitled to under the contract, and this is due to conditions for which the contractor is responsible”. The provisions of NS 8407 paragraph 42.1, NS 8405 paragraph 36.1 and NS 8406 paragraph 27.1 are similar in their wording.

This means, of course, that it is the agreement with all its annexes that forms the starting point for the builder's judgment of the subject matter of the contract. When making that assessment, there will be a relatively large difference between turnkey contracts (NS 8407) and execution centres (NS 8405 and NS 8406).

In the execution centres, the builder has detailed designs and thus it becomes a relatively easier exercise to decide whether the execution is in accordance with the design than in turnkey contracts.

In turnkey contracts, the builder has set functional requirements that the general contractor must find a way to meet in his detailed design. As previously stated, the general contractor may have relatively large freedom of choice as long as he remains within the scope of the contract.

This means that the builder should consider being far better staffed with experts on the takeover in a turnkey contract, than what he needs to be in an execution centre.

Since there are functional requirements to be assessed, it must also be taken into account that the general contractor may have chosen not to use preaccepted solutions, cf the supervisor of TEK 17. In such cases, the general contractor must be able to document that the selected solution nevertheless meets the functional requirements of TEK 17 and in that case it must be done by presenting analyses, cf. TEK 17 § 2-2 (2) letter b and paragraph 3.

In addition, the special requirements for testing, regulation, etc. that apply to technical facilities in turnkey contracts are obtained. Within this type of control of the contract object, special requirements are imposed on those who will assist the builder. For both the builder and the general contractor, we believe that it is advantageous to adhere to the relevant standards and supervisors, as well as to have competent personnel with them during the testing.

In addition, of course, there are all other checks where the execution center and the turnkey price are more comparable, such as checking that the correct materials have been used, that details have been made in a workmanlike manner, etc.

With that said, we believe a picture has been given on our part that the question of whether something is to be considered a defect or not is governed by the agreement and the requirements that can be derived from it, and so competent and qualified people must be involved to assist the builder.

4. Complaints

4.1 Introduction

When it comes to complaint deadlines, we distinguish between two different ones, namely the relative and the absolute deadline for complaints.

The relative claim deadline refers to how quickly after the creditor (here; the builder) has, or should have, discovered a defect the debtor (here; the contractor) reports to the debtor (here; the contractor). If the builder does not react quickly enough and reports a defect (complains), he risks losing his claim for, for example, rectification. The reason for this rule is that the contractor should receive a notice as early as possible so that he can take the necessary measures to avoid, among other things, the defect developing, causing damage to other parts of the contract object, etc. So the relative time limit for complaint is given in order to safeguard the interests of the contractor in the sense that he should be able to limit his loss (liability for remediation) as far as possible.

The absolute notice period is about how long the contractor should have the potential defect liability hanging over him. As long as a builder can complain about defects, the contractor must allocate resources to be able to handle his defect liability should such defects materialize. The longer the time elapsed since the work was handed over to the builder, the greater the likelihood that defects or weaknesses arising from the contract object may be due to errors and omissions on the part of the builder — for example as a result of inadequate maintenance. Nor is it beneficial for the social economy that one as an entrepreneur should walk around and have a perpetual responsibility for possible mistakes. Most failures will also materialize within a relatively reasonable time counted from the takeover. After balancing a number of considerations that are partly contradictory, it has therefore ended up that the absolute deadline for complaints is five years. Since it is the takeover that is the deadline for calculating the complaint deadline, it means that on the day five years after the takeover transaction was closed (and the protocol signed and dated) the absolute complaint deadline expires. After this, the builder cannot — as a general rule — complain about the defects and defects that may be uncovered.

4.2 Complaints in case of takeover

In the standard contracts, strict requirements are imposed on the builder when it comes to the takeover business, and therefore the builder should be well prepared and represented when it is held.

It is clear from the provisions of the standard contracts on complaints in the event of a takeover that the builder loses his right to advertise if he does not advertise the takeover in respect of matters which he “have or should have discovered”.

We do not go into all the possible factors that can play into the assessment of what one “should have discovered” Maybe they shouldn't have discovered it. This can often be a very situational assessment, and it falls far too far to use examples.

The general advice is that the builder meets well prepared, has reviewed all test documentation and FDV documentation, carried out inspections in advance and then spends a lot of time on the takeover so that one is sure that everything visible has been completed. It is often a good idea to review as built drawings and including fire drawings in advance, but it is also part of the FDV documentation.

If you have first done a thorough job and been careful to note down all deficiencies detected in the protocol as you should, cf. NS 8407 paragraph 42.2.1, you will normally be well within the obligations of advertising.

4.3 Subsequent complaints

In NS 8407 paragraph 42.2.2, NS 8405 paragraph 36.7 and NS 8406 paragraph 27.6, one finds the provision on the absolute deadline for complaints of five years after the takeover.

Within the period between the takeover and the expiry of the calendar day that falls five years after the takeover, the developer must advertise “within a reasonable time” after he “have or should have discovered” the shortage.

In other words, he can't wait until it has well nearly five years. It is important that contractors are notified as soon as possible, which is why complaints must be made “within a reasonable time”.

What is meant by “reasonable time” we have some case law on it, and you can probably say that it is acceptable to advertise within a week or two, but it cannot be several months from the time when defects are discovered and until one advertises. In addition, the type of deficiency and not least the possible consequences of not reporting the deficiency will very soon play into the assessment of what is reasonable time.

In the case of a condition that does not deteriorate and does not entail any risk of consequential damage, it is easier to conclude that a couple of weeks of “waiting” to advertise is acceptable, while the same is not a natural consequence if the wait implies that the defect deteriorates drastically and/ or causes damage to other parts of the construction. The latter will be the case, for example, if there are water leaks and then one should not wait to advertise at all.

Finally, mention is made of the rule that a new claim period of five years runs on all parts of the contract subject that are rectified, but limited to one year counted from the expiration of the absolute five-year deadline. We refer in this regard to NS 8407 paragraph 42.2.2, second paragraph, NS 8405 paragraph 36.7, third paragraph and NS 8406 paragraph 27.6, third paragraph.

4.4 Gross negligence and intent

All standard contracts have a separate provision that the deadlines for complaints do not apply if a defect is due to gross negligence or intent on the part of the contractor.

In order for gross negligence or intent to be considered to exist, there will normally be very serious circumstances in which the work performed is found to be fraught with significant errors or omissions.

It is often said that the defect must be due to an embodiment that represents a “marked deviation from the requirement of prudent course of action” and it has to be about a “conduct which is highly reprehensible, in which the person concerned is therefore substantially more to blame than in the case of general negligence”, cf Rt 1989 p 1318.

Since the consequence of this form of guilt is the same, it is sufficient to focus on whether there is gross negligence.

For something to be considered to represent gross negligence, it is inherent in this that the person responsible is strongly to be reproached.

In other words, sloppiness is not enough, nor is it natural to apply such a term to curant construction work.

If, for example, one has nailed lying cladding with excessive pressure on the nail gun so that the wood fibers around the nail hole are broken with a correspondingly increased probability of somewhat shorter service life of the panel, it is unnatural to characterize this as grossly negligent.

If, on the other hand, you glaze balconies in a larger condominium with many floors and use shatterable glass that is not dimensioned for snow or other forms of stress, the probability of the glass shattering and flaring to the ground will be unacceptably high. The extent and severity of possible consequential damage if such glass falls from a great height and hits people below would be considerable. In such a situation, one will probably reasonably quickly be able to conclude that the deficiency is due to gross negligence.

We do not go into this further because these types of situations and not least assessments suggest that a lawyer should be involved.

Incidentally, it is primarily in situations where the deadlines for complaints have expired that one normally finds reason to plead gross negligence and intent.

5. Relationship with the statute of limitations

In NS 8407, paragraph 42.2.4, a provision has been made on the relation of the complaint rules to the statute of limitations in the statute of limitations. A similar provision does not exist in NS 8405 and NS 8406, but it has no legal significance. In NS 8407, it is included to inform the parties, and the same, of course, should have been done in the other two standard contracts.

The statute of limitations applies universally, and we have written a separate article on the relationship between complaint rules and statute of limitations rules, read here.

Keep in mind that a claim may be obsolete even if you have remembered to advertise on time in accordance with the complaint rules. Similarly, one may have advertised too late and thus lost their claim, even if the claim is not obsolete.

For an entrepreneur, it is important to be careful with these rules so that one does not unnecessarily assume responsibility for something that is already obsolete.

Tilbake

Deficiencies and complaints

Kortversjonen

1. Introduction

Building defects and defects are one of the really big challenges within the construction industry, and perhaps the one that has received the most attention from the legislature in recent decades. It was the scale of such circumstances that justified why the authorities introduced the liability law system into the Plan and Buildings Act in the late 1990s, and which also justified the introduction of independent control almost 15 years later.

Otherwise, it is on the very takeover that the real assessment of the contractor's delivery should take place. It is at this time that the builder has the right to take over the object of the contract, and without defects and defects. Up to this point, it is the contractor who has full disposal of his work, but the counterpart is that his work becomes the subject of a thorough evaluation at this time at the latest.

In the standard contracts there are many provisions that regulate the questions that raise with respect to deficiencies, and it is these that we will consider in more detail in this article.

Before we do so, however, it may be appropriate to recall certain provisions that are of relatively central importance for the interaction of the parties leading up to the takeover.

First, we have the provision that the contractor cannot rely on the fact that the works have been carried out under the supervision of the builder in order to avoid liability for defects, cf. NS 8407 paragraphs 20.2 and 20.3, NS 8405 paragraph 14.1 and NS 8406 paragraph 14.

Secondly, we have the provision on the obligation of the contractor to correct conditions during the construction period in which the works have been carried out in violation of the contract or are due to damage, cf. NS 8407 paragraph 20.5 and NS 8405 paragraph 11.2.

Thirdly, we have the provisions concerning the closure of the construction case, which, among other things, deal with the requirements for testing, regulation, etc., well before the notice of takeover and subsequent submission of test documentation, cf. NS 8407 paragraph 36.1 and NS 8405 paragraph 32.2.

Fourth, we refer to the provision on notice of takeover business, cf. NS 8407 item 36.3 which requires that the general contractor has completed a separate inspection, written lists of defects he himself has discovered and unfinished works and submitted these to the builder as part of the notice.

Fifth, we refer to NS 840 paragraph 37.1, where it is stated that the general contractor must submit the list from the completion inspection, which should also state what he has corrected and/or completed since the list was transmitted to the builder as part of the notice of takeover business.

One might think that the rules are circumstantial, but very simplistic one might say that it is rather based on the old principle of “sausage versus money”, or the principle of simultaneity. On the takeover, the builder shall receive the defect-free item against paying the contractor the remainder. If the item is not flawless, the builder is not obliged to pay the full remaining amount.

Now we move on to dealing with the rules that specifically relate to defects, complaints and the contractor's right and obligation to rectify.

2. Overview of the rules

The rules we are now going to look at are in NS 8407 paragraph 42, NS 8405 paragraph 36 and NS 8406 paragraph 27.

Unlike most other subjects, virtually all provisions are dealt with in all three standard contracts. That in itself is a strong expression of how important these provisions are both in themselves, and considered to be in practice.

We will deal with the rules in the order stated in NS 8407 since this is the standard contract that is used most often today.

3. What is a deficiency?

The standard contracts' provision for “shortage” is quite short. There is a deficiency if the subject of the contract is not “in the condition that the builder is entitled to under the contract, and this is due to conditions for which the contractor is responsible”. The provisions of NS 8407 paragraph 42.1, NS 8405 paragraph 36.1 and NS 8406 paragraph 27.1 are similar in their wording.

This means, of course, that it is the agreement with all its annexes that forms the starting point for the builder's judgment of the subject matter of the contract. When making that assessment, there will be a relatively large difference between turnkey contracts (NS 8407) and execution centres (NS 8405 and NS 8406).

In the execution centres, the builder has detailed designs and thus it becomes a relatively easier exercise to decide whether the execution is in accordance with the design than in turnkey contracts.

In turnkey contracts, the builder has set functional requirements that the general contractor must find a way to meet in his detailed design. As previously stated, the general contractor may have relatively large freedom of choice as long as he remains within the scope of the contract.

This means that the builder should consider being far better staffed with experts on the takeover in a turnkey contract, than what he needs to be in an execution centre.

Since there are functional requirements to be assessed, it must also be taken into account that the general contractor may have chosen not to use preaccepted solutions, cf the supervisor of TEK 17. In such cases, the general contractor must be able to document that the selected solution nevertheless meets the functional requirements of TEK 17 and in that case it must be done by presenting analyses, cf. TEK 17 § 2-2 (2) letter b and paragraph 3.

In addition, the special requirements for testing, regulation, etc. that apply to technical facilities in turnkey contracts are obtained. Within this type of control of the contract object, special requirements are imposed on those who will assist the builder. For both the builder and the general contractor, we believe that it is advantageous to adhere to the relevant standards and supervisors, as well as to have competent personnel with them during the testing.

In addition, of course, there are all other checks where the execution center and the turnkey price are more comparable, such as checking that the correct materials have been used, that details have been made in a workmanlike manner, etc.

With that said, we believe a picture has been given on our part that the question of whether something is to be considered a defect or not is governed by the agreement and the requirements that can be derived from it, and so competent and qualified people must be involved to assist the builder.

4. Complaints

4.1 Introduction

When it comes to complaint deadlines, we distinguish between two different ones, namely the relative and the absolute deadline for complaints.

The relative claim deadline refers to how quickly after the creditor (here; the builder) has, or should have, discovered a defect the debtor (here; the contractor) reports to the debtor (here; the contractor). If the builder does not react quickly enough and reports a defect (complains), he risks losing his claim for, for example, rectification. The reason for this rule is that the contractor should receive a notice as early as possible so that he can take the necessary measures to avoid, among other things, the defect developing, causing damage to other parts of the contract object, etc. So the relative time limit for complaint is given in order to safeguard the interests of the contractor in the sense that he should be able to limit his loss (liability for remediation) as far as possible.

The absolute notice period is about how long the contractor should have the potential defect liability hanging over him. As long as a builder can complain about defects, the contractor must allocate resources to be able to handle his defect liability should such defects materialize. The longer the time elapsed since the work was handed over to the builder, the greater the likelihood that defects or weaknesses arising from the contract object may be due to errors and omissions on the part of the builder — for example as a result of inadequate maintenance. Nor is it beneficial for the social economy that one as an entrepreneur should walk around and have a perpetual responsibility for possible mistakes. Most failures will also materialize within a relatively reasonable time counted from the takeover. After balancing a number of considerations that are partly contradictory, it has therefore ended up that the absolute deadline for complaints is five years. Since it is the takeover that is the deadline for calculating the complaint deadline, it means that on the day five years after the takeover transaction was closed (and the protocol signed and dated) the absolute complaint deadline expires. After this, the builder cannot — as a general rule — complain about the defects and defects that may be uncovered.

4.2 Complaints in case of takeover

In the standard contracts, strict requirements are imposed on the builder when it comes to the takeover business, and therefore the builder should be well prepared and represented when it is held.

It is clear from the provisions of the standard contracts on complaints in the event of a takeover that the builder loses his right to advertise if he does not advertise the takeover in respect of matters which he “have or should have discovered”.

We do not go into all the possible factors that can play into the assessment of what one “should have discovered” Maybe they shouldn't have discovered it. This can often be a very situational assessment, and it falls far too far to use examples.

The general advice is that the builder meets well prepared, has reviewed all test documentation and FDV documentation, carried out inspections in advance and then spends a lot of time on the takeover so that one is sure that everything visible has been completed. It is often a good idea to review as built drawings and including fire drawings in advance, but it is also part of the FDV documentation.

If you have first done a thorough job and been careful to note down all deficiencies detected in the protocol as you should, cf. NS 8407 paragraph 42.2.1, you will normally be well within the obligations of advertising.

4.3 Subsequent complaints

In NS 8407 paragraph 42.2.2, NS 8405 paragraph 36.7 and NS 8406 paragraph 27.6, one finds the provision on the absolute deadline for complaints of five years after the takeover.

Within the period between the takeover and the expiry of the calendar day that falls five years after the takeover, the developer must advertise “within a reasonable time” after he “have or should have discovered” the shortage.

In other words, he can't wait until it has well nearly five years. It is important that contractors are notified as soon as possible, which is why complaints must be made “within a reasonable time”.

What is meant by “reasonable time” we have some case law on it, and you can probably say that it is acceptable to advertise within a week or two, but it cannot be several months from the time when defects are discovered and until one advertises. In addition, the type of deficiency and not least the possible consequences of not reporting the deficiency will very soon play into the assessment of what is reasonable time.

In the case of a condition that does not deteriorate and does not entail any risk of consequential damage, it is easier to conclude that a couple of weeks of “waiting” to advertise is acceptable, while the same is not a natural consequence if the wait implies that the defect deteriorates drastically and/ or causes damage to other parts of the construction. The latter will be the case, for example, if there are water leaks and then one should not wait to advertise at all.

Finally, mention is made of the rule that a new claim period of five years runs on all parts of the contract subject that are rectified, but limited to one year counted from the expiration of the absolute five-year deadline. We refer in this regard to NS 8407 paragraph 42.2.2, second paragraph, NS 8405 paragraph 36.7, third paragraph and NS 8406 paragraph 27.6, third paragraph.

4.4 Gross negligence and intent

All standard contracts have a separate provision that the deadlines for complaints do not apply if a defect is due to gross negligence or intent on the part of the contractor.

In order for gross negligence or intent to be considered to exist, there will normally be very serious circumstances in which the work performed is found to be fraught with significant errors or omissions.

It is often said that the defect must be due to an embodiment that represents a “marked deviation from the requirement of prudent course of action” and it has to be about a “conduct which is highly reprehensible, in which the person concerned is therefore substantially more to blame than in the case of general negligence”, cf Rt 1989 p 1318.

Since the consequence of this form of guilt is the same, it is sufficient to focus on whether there is gross negligence.

For something to be considered to represent gross negligence, it is inherent in this that the person responsible is strongly to be reproached.

In other words, sloppiness is not enough, nor is it natural to apply such a term to curant construction work.

If, for example, one has nailed lying cladding with excessive pressure on the nail gun so that the wood fibers around the nail hole are broken with a correspondingly increased probability of somewhat shorter service life of the panel, it is unnatural to characterize this as grossly negligent.

If, on the other hand, you glaze balconies in a larger condominium with many floors and use shatterable glass that is not dimensioned for snow or other forms of stress, the probability of the glass shattering and flaring to the ground will be unacceptably high. The extent and severity of possible consequential damage if such glass falls from a great height and hits people below would be considerable. In such a situation, one will probably reasonably quickly be able to conclude that the deficiency is due to gross negligence.

We do not go into this further because these types of situations and not least assessments suggest that a lawyer should be involved.

Incidentally, it is primarily in situations where the deadlines for complaints have expired that one normally finds reason to plead gross negligence and intent.

5. Relationship with the statute of limitations

In NS 8407, paragraph 42.2.4, a provision has been made on the relation of the complaint rules to the statute of limitations in the statute of limitations. A similar provision does not exist in NS 8405 and NS 8406, but it has no legal significance. In NS 8407, it is included to inform the parties, and the same, of course, should have been done in the other two standard contracts.

The statute of limitations applies universally, and we have written a separate article on the relationship between complaint rules and statute of limitations rules, read here.

Keep in mind that a claim may be obsolete even if you have remembered to advertise on time in accordance with the complaint rules. Similarly, one may have advertised too late and thus lost their claim, even if the claim is not obsolete.

For an entrepreneur, it is important to be careful with these rules so that one does not unnecessarily assume responsibility for something that is already obsolete.

Deficiencies and complaints

Kortversjonen

1. Introduction

Building defects and defects are one of the really big challenges within the construction industry, and perhaps the one that has received the most attention from the legislature in recent decades. It was the scale of such circumstances that justified why the authorities introduced the liability law system into the Plan and Buildings Act in the late 1990s, and which also justified the introduction of independent control almost 15 years later.

Otherwise, it is on the very takeover that the real assessment of the contractor's delivery should take place. It is at this time that the builder has the right to take over the object of the contract, and without defects and defects. Up to this point, it is the contractor who has full disposal of his work, but the counterpart is that his work becomes the subject of a thorough evaluation at this time at the latest.

In the standard contracts there are many provisions that regulate the questions that raise with respect to deficiencies, and it is these that we will consider in more detail in this article.

Before we do so, however, it may be appropriate to recall certain provisions that are of relatively central importance for the interaction of the parties leading up to the takeover.

First, we have the provision that the contractor cannot rely on the fact that the works have been carried out under the supervision of the builder in order to avoid liability for defects, cf. NS 8407 paragraphs 20.2 and 20.3, NS 8405 paragraph 14.1 and NS 8406 paragraph 14.

Secondly, we have the provision on the obligation of the contractor to correct conditions during the construction period in which the works have been carried out in violation of the contract or are due to damage, cf. NS 8407 paragraph 20.5 and NS 8405 paragraph 11.2.

Thirdly, we have the provisions concerning the closure of the construction case, which, among other things, deal with the requirements for testing, regulation, etc., well before the notice of takeover and subsequent submission of test documentation, cf. NS 8407 paragraph 36.1 and NS 8405 paragraph 32.2.

Fourth, we refer to the provision on notice of takeover business, cf. NS 8407 item 36.3 which requires that the general contractor has completed a separate inspection, written lists of defects he himself has discovered and unfinished works and submitted these to the builder as part of the notice.

Fifth, we refer to NS 840 paragraph 37.1, where it is stated that the general contractor must submit the list from the completion inspection, which should also state what he has corrected and/or completed since the list was transmitted to the builder as part of the notice of takeover business.

One might think that the rules are circumstantial, but very simplistic one might say that it is rather based on the old principle of “sausage versus money”, or the principle of simultaneity. On the takeover, the builder shall receive the defect-free item against paying the contractor the remainder. If the item is not flawless, the builder is not obliged to pay the full remaining amount.

Now we move on to dealing with the rules that specifically relate to defects, complaints and the contractor's right and obligation to rectify.

2. Overview of the rules

The rules we are now going to look at are in NS 8407 paragraph 42, NS 8405 paragraph 36 and NS 8406 paragraph 27.

Unlike most other subjects, virtually all provisions are dealt with in all three standard contracts. That in itself is a strong expression of how important these provisions are both in themselves, and considered to be in practice.

We will deal with the rules in the order stated in NS 8407 since this is the standard contract that is used most often today.

3. What is a deficiency?

The standard contracts' provision for “shortage” is quite short. There is a deficiency if the subject of the contract is not “in the condition that the builder is entitled to under the contract, and this is due to conditions for which the contractor is responsible”. The provisions of NS 8407 paragraph 42.1, NS 8405 paragraph 36.1 and NS 8406 paragraph 27.1 are similar in their wording.

This means, of course, that it is the agreement with all its annexes that forms the starting point for the builder's judgment of the subject matter of the contract. When making that assessment, there will be a relatively large difference between turnkey contracts (NS 8407) and execution centres (NS 8405 and NS 8406).

In the execution centres, the builder has detailed designs and thus it becomes a relatively easier exercise to decide whether the execution is in accordance with the design than in turnkey contracts.

In turnkey contracts, the builder has set functional requirements that the general contractor must find a way to meet in his detailed design. As previously stated, the general contractor may have relatively large freedom of choice as long as he remains within the scope of the contract.

This means that the builder should consider being far better staffed with experts on the takeover in a turnkey contract, than what he needs to be in an execution centre.

Since there are functional requirements to be assessed, it must also be taken into account that the general contractor may have chosen not to use preaccepted solutions, cf the supervisor of TEK 17. In such cases, the general contractor must be able to document that the selected solution nevertheless meets the functional requirements of TEK 17 and in that case it must be done by presenting analyses, cf. TEK 17 § 2-2 (2) letter b and paragraph 3.

In addition, the special requirements for testing, regulation, etc. that apply to technical facilities in turnkey contracts are obtained. Within this type of control of the contract object, special requirements are imposed on those who will assist the builder. For both the builder and the general contractor, we believe that it is advantageous to adhere to the relevant standards and supervisors, as well as to have competent personnel with them during the testing.

In addition, of course, there are all other checks where the execution center and the turnkey price are more comparable, such as checking that the correct materials have been used, that details have been made in a workmanlike manner, etc.

With that said, we believe a picture has been given on our part that the question of whether something is to be considered a defect or not is governed by the agreement and the requirements that can be derived from it, and so competent and qualified people must be involved to assist the builder.

4. Complaints

4.1 Introduction

When it comes to complaint deadlines, we distinguish between two different ones, namely the relative and the absolute deadline for complaints.

The relative claim deadline refers to how quickly after the creditor (here; the builder) has, or should have, discovered a defect the debtor (here; the contractor) reports to the debtor (here; the contractor). If the builder does not react quickly enough and reports a defect (complains), he risks losing his claim for, for example, rectification. The reason for this rule is that the contractor should receive a notice as early as possible so that he can take the necessary measures to avoid, among other things, the defect developing, causing damage to other parts of the contract object, etc. So the relative time limit for complaint is given in order to safeguard the interests of the contractor in the sense that he should be able to limit his loss (liability for remediation) as far as possible.

The absolute notice period is about how long the contractor should have the potential defect liability hanging over him. As long as a builder can complain about defects, the contractor must allocate resources to be able to handle his defect liability should such defects materialize. The longer the time elapsed since the work was handed over to the builder, the greater the likelihood that defects or weaknesses arising from the contract object may be due to errors and omissions on the part of the builder — for example as a result of inadequate maintenance. Nor is it beneficial for the social economy that one as an entrepreneur should walk around and have a perpetual responsibility for possible mistakes. Most failures will also materialize within a relatively reasonable time counted from the takeover. After balancing a number of considerations that are partly contradictory, it has therefore ended up that the absolute deadline for complaints is five years. Since it is the takeover that is the deadline for calculating the complaint deadline, it means that on the day five years after the takeover transaction was closed (and the protocol signed and dated) the absolute complaint deadline expires. After this, the builder cannot — as a general rule — complain about the defects and defects that may be uncovered.

4.2 Complaints in case of takeover

In the standard contracts, strict requirements are imposed on the builder when it comes to the takeover business, and therefore the builder should be well prepared and represented when it is held.

It is clear from the provisions of the standard contracts on complaints in the event of a takeover that the builder loses his right to advertise if he does not advertise the takeover in respect of matters which he “have or should have discovered”.

We do not go into all the possible factors that can play into the assessment of what one “should have discovered” Maybe they shouldn't have discovered it. This can often be a very situational assessment, and it falls far too far to use examples.

The general advice is that the builder meets well prepared, has reviewed all test documentation and FDV documentation, carried out inspections in advance and then spends a lot of time on the takeover so that one is sure that everything visible has been completed. It is often a good idea to review as built drawings and including fire drawings in advance, but it is also part of the FDV documentation.

If you have first done a thorough job and been careful to note down all deficiencies detected in the protocol as you should, cf. NS 8407 paragraph 42.2.1, you will normally be well within the obligations of advertising.

4.3 Subsequent complaints

In NS 8407 paragraph 42.2.2, NS 8405 paragraph 36.7 and NS 8406 paragraph 27.6, one finds the provision on the absolute deadline for complaints of five years after the takeover.

Within the period between the takeover and the expiry of the calendar day that falls five years after the takeover, the developer must advertise “within a reasonable time” after he “have or should have discovered” the shortage.

In other words, he can't wait until it has well nearly five years. It is important that contractors are notified as soon as possible, which is why complaints must be made “within a reasonable time”.

What is meant by “reasonable time” we have some case law on it, and you can probably say that it is acceptable to advertise within a week or two, but it cannot be several months from the time when defects are discovered and until one advertises. In addition, the type of deficiency and not least the possible consequences of not reporting the deficiency will very soon play into the assessment of what is reasonable time.

In the case of a condition that does not deteriorate and does not entail any risk of consequential damage, it is easier to conclude that a couple of weeks of “waiting” to advertise is acceptable, while the same is not a natural consequence if the wait implies that the defect deteriorates drastically and/ or causes damage to other parts of the construction. The latter will be the case, for example, if there are water leaks and then one should not wait to advertise at all.

Finally, mention is made of the rule that a new claim period of five years runs on all parts of the contract subject that are rectified, but limited to one year counted from the expiration of the absolute five-year deadline. We refer in this regard to NS 8407 paragraph 42.2.2, second paragraph, NS 8405 paragraph 36.7, third paragraph and NS 8406 paragraph 27.6, third paragraph.

4.4 Gross negligence and intent

All standard contracts have a separate provision that the deadlines for complaints do not apply if a defect is due to gross negligence or intent on the part of the contractor.

In order for gross negligence or intent to be considered to exist, there will normally be very serious circumstances in which the work performed is found to be fraught with significant errors or omissions.

It is often said that the defect must be due to an embodiment that represents a “marked deviation from the requirement of prudent course of action” and it has to be about a “conduct which is highly reprehensible, in which the person concerned is therefore substantially more to blame than in the case of general negligence”, cf Rt 1989 p 1318.

Since the consequence of this form of guilt is the same, it is sufficient to focus on whether there is gross negligence.

For something to be considered to represent gross negligence, it is inherent in this that the person responsible is strongly to be reproached.

In other words, sloppiness is not enough, nor is it natural to apply such a term to curant construction work.

If, for example, one has nailed lying cladding with excessive pressure on the nail gun so that the wood fibers around the nail hole are broken with a correspondingly increased probability of somewhat shorter service life of the panel, it is unnatural to characterize this as grossly negligent.

If, on the other hand, you glaze balconies in a larger condominium with many floors and use shatterable glass that is not dimensioned for snow or other forms of stress, the probability of the glass shattering and flaring to the ground will be unacceptably high. The extent and severity of possible consequential damage if such glass falls from a great height and hits people below would be considerable. In such a situation, one will probably reasonably quickly be able to conclude that the deficiency is due to gross negligence.

We do not go into this further because these types of situations and not least assessments suggest that a lawyer should be involved.

Incidentally, it is primarily in situations where the deadlines for complaints have expired that one normally finds reason to plead gross negligence and intent.

5. Relationship with the statute of limitations

In NS 8407, paragraph 42.2.4, a provision has been made on the relation of the complaint rules to the statute of limitations in the statute of limitations. A similar provision does not exist in NS 8405 and NS 8406, but it has no legal significance. In NS 8407, it is included to inform the parties, and the same, of course, should have been done in the other two standard contracts.

The statute of limitations applies universally, and we have written a separate article on the relationship between complaint rules and statute of limitations rules, read here.

Keep in mind that a claim may be obsolete even if you have remembered to advertise on time in accordance with the complaint rules. Similarly, one may have advertised too late and thus lost their claim, even if the claim is not obsolete.

For an entrepreneur, it is important to be careful with these rules so that one does not unnecessarily assume responsibility for something that is already obsolete.

Deficiencies and complaints

Kortversjonen

1. Introduction

Building defects and defects are one of the really big challenges within the construction industry, and perhaps the one that has received the most attention from the legislature in recent decades. It was the scale of such circumstances that justified why the authorities introduced the liability law system into the Plan and Buildings Act in the late 1990s, and which also justified the introduction of independent control almost 15 years later.

Otherwise, it is on the very takeover that the real assessment of the contractor's delivery should take place. It is at this time that the builder has the right to take over the object of the contract, and without defects and defects. Up to this point, it is the contractor who has full disposal of his work, but the counterpart is that his work becomes the subject of a thorough evaluation at this time at the latest.

In the standard contracts there are many provisions that regulate the questions that raise with respect to deficiencies, and it is these that we will consider in more detail in this article.

Before we do so, however, it may be appropriate to recall certain provisions that are of relatively central importance for the interaction of the parties leading up to the takeover.

First, we have the provision that the contractor cannot rely on the fact that the works have been carried out under the supervision of the builder in order to avoid liability for defects, cf. NS 8407 paragraphs 20.2 and 20.3, NS 8405 paragraph 14.1 and NS 8406 paragraph 14.

Secondly, we have the provision on the obligation of the contractor to correct conditions during the construction period in which the works have been carried out in violation of the contract or are due to damage, cf. NS 8407 paragraph 20.5 and NS 8405 paragraph 11.2.

Thirdly, we have the provisions concerning the closure of the construction case, which, among other things, deal with the requirements for testing, regulation, etc., well before the notice of takeover and subsequent submission of test documentation, cf. NS 8407 paragraph 36.1 and NS 8405 paragraph 32.2.

Fourth, we refer to the provision on notice of takeover business, cf. NS 8407 item 36.3 which requires that the general contractor has completed a separate inspection, written lists of defects he himself has discovered and unfinished works and submitted these to the builder as part of the notice.

Fifth, we refer to NS 840 paragraph 37.1, where it is stated that the general contractor must submit the list from the completion inspection, which should also state what he has corrected and/or completed since the list was transmitted to the builder as part of the notice of takeover business.

One might think that the rules are circumstantial, but very simplistic one might say that it is rather based on the old principle of “sausage versus money”, or the principle of simultaneity. On the takeover, the builder shall receive the defect-free item against paying the contractor the remainder. If the item is not flawless, the builder is not obliged to pay the full remaining amount.

Now we move on to dealing with the rules that specifically relate to defects, complaints and the contractor's right and obligation to rectify.

2. Overview of the rules

The rules we are now going to look at are in NS 8407 paragraph 42, NS 8405 paragraph 36 and NS 8406 paragraph 27.

Unlike most other subjects, virtually all provisions are dealt with in all three standard contracts. That in itself is a strong expression of how important these provisions are both in themselves, and considered to be in practice.

We will deal with the rules in the order stated in NS 8407 since this is the standard contract that is used most often today.

3. What is a deficiency?

The standard contracts' provision for “shortage” is quite short. There is a deficiency if the subject of the contract is not “in the condition that the builder is entitled to under the contract, and this is due to conditions for which the contractor is responsible”. The provisions of NS 8407 paragraph 42.1, NS 8405 paragraph 36.1 and NS 8406 paragraph 27.1 are similar in their wording.

This means, of course, that it is the agreement with all its annexes that forms the starting point for the builder's judgment of the subject matter of the contract. When making that assessment, there will be a relatively large difference between turnkey contracts (NS 8407) and execution centres (NS 8405 and NS 8406).

In the execution centres, the builder has detailed designs and thus it becomes a relatively easier exercise to decide whether the execution is in accordance with the design than in turnkey contracts.

In turnkey contracts, the builder has set functional requirements that the general contractor must find a way to meet in his detailed design. As previously stated, the general contractor may have relatively large freedom of choice as long as he remains within the scope of the contract.

This means that the builder should consider being far better staffed with experts on the takeover in a turnkey contract, than what he needs to be in an execution centre.

Since there are functional requirements to be assessed, it must also be taken into account that the general contractor may have chosen not to use preaccepted solutions, cf the supervisor of TEK 17. In such cases, the general contractor must be able to document that the selected solution nevertheless meets the functional requirements of TEK 17 and in that case it must be done by presenting analyses, cf. TEK 17 § 2-2 (2) letter b and paragraph 3.

In addition, the special requirements for testing, regulation, etc. that apply to technical facilities in turnkey contracts are obtained. Within this type of control of the contract object, special requirements are imposed on those who will assist the builder. For both the builder and the general contractor, we believe that it is advantageous to adhere to the relevant standards and supervisors, as well as to have competent personnel with them during the testing.

In addition, of course, there are all other checks where the execution center and the turnkey price are more comparable, such as checking that the correct materials have been used, that details have been made in a workmanlike manner, etc.

With that said, we believe a picture has been given on our part that the question of whether something is to be considered a defect or not is governed by the agreement and the requirements that can be derived from it, and so competent and qualified people must be involved to assist the builder.

4. Complaints

4.1 Introduction

When it comes to complaint deadlines, we distinguish between two different ones, namely the relative and the absolute deadline for complaints.

The relative claim deadline refers to how quickly after the creditor (here; the builder) has, or should have, discovered a defect the debtor (here; the contractor) reports to the debtor (here; the contractor). If the builder does not react quickly enough and reports a defect (complains), he risks losing his claim for, for example, rectification. The reason for this rule is that the contractor should receive a notice as early as possible so that he can take the necessary measures to avoid, among other things, the defect developing, causing damage to other parts of the contract object, etc. So the relative time limit for complaint is given in order to safeguard the interests of the contractor in the sense that he should be able to limit his loss (liability for remediation) as far as possible.

The absolute notice period is about how long the contractor should have the potential defect liability hanging over him. As long as a builder can complain about defects, the contractor must allocate resources to be able to handle his defect liability should such defects materialize. The longer the time elapsed since the work was handed over to the builder, the greater the likelihood that defects or weaknesses arising from the contract object may be due to errors and omissions on the part of the builder — for example as a result of inadequate maintenance. Nor is it beneficial for the social economy that one as an entrepreneur should walk around and have a perpetual responsibility for possible mistakes. Most failures will also materialize within a relatively reasonable time counted from the takeover. After balancing a number of considerations that are partly contradictory, it has therefore ended up that the absolute deadline for complaints is five years. Since it is the takeover that is the deadline for calculating the complaint deadline, it means that on the day five years after the takeover transaction was closed (and the protocol signed and dated) the absolute complaint deadline expires. After this, the builder cannot — as a general rule — complain about the defects and defects that may be uncovered.

4.2 Complaints in case of takeover

In the standard contracts, strict requirements are imposed on the builder when it comes to the takeover business, and therefore the builder should be well prepared and represented when it is held.

It is clear from the provisions of the standard contracts on complaints in the event of a takeover that the builder loses his right to advertise if he does not advertise the takeover in respect of matters which he “have or should have discovered”.

We do not go into all the possible factors that can play into the assessment of what one “should have discovered” Maybe they shouldn't have discovered it. This can often be a very situational assessment, and it falls far too far to use examples.

The general advice is that the builder meets well prepared, has reviewed all test documentation and FDV documentation, carried out inspections in advance and then spends a lot of time on the takeover so that one is sure that everything visible has been completed. It is often a good idea to review as built drawings and including fire drawings in advance, but it is also part of the FDV documentation.

If you have first done a thorough job and been careful to note down all deficiencies detected in the protocol as you should, cf. NS 8407 paragraph 42.2.1, you will normally be well within the obligations of advertising.

4.3 Subsequent complaints

In NS 8407 paragraph 42.2.2, NS 8405 paragraph 36.7 and NS 8406 paragraph 27.6, one finds the provision on the absolute deadline for complaints of five years after the takeover.

Within the period between the takeover and the expiry of the calendar day that falls five years after the takeover, the developer must advertise “within a reasonable time” after he “have or should have discovered” the shortage.

In other words, he can't wait until it has well nearly five years. It is important that contractors are notified as soon as possible, which is why complaints must be made “within a reasonable time”.

What is meant by “reasonable time” we have some case law on it, and you can probably say that it is acceptable to advertise within a week or two, but it cannot be several months from the time when defects are discovered and until one advertises. In addition, the type of deficiency and not least the possible consequences of not reporting the deficiency will very soon play into the assessment of what is reasonable time.

In the case of a condition that does not deteriorate and does not entail any risk of consequential damage, it is easier to conclude that a couple of weeks of “waiting” to advertise is acceptable, while the same is not a natural consequence if the wait implies that the defect deteriorates drastically and/ or causes damage to other parts of the construction. The latter will be the case, for example, if there are water leaks and then one should not wait to advertise at all.

Finally, mention is made of the rule that a new claim period of five years runs on all parts of the contract subject that are rectified, but limited to one year counted from the expiration of the absolute five-year deadline. We refer in this regard to NS 8407 paragraph 42.2.2, second paragraph, NS 8405 paragraph 36.7, third paragraph and NS 8406 paragraph 27.6, third paragraph.

4.4 Gross negligence and intent

All standard contracts have a separate provision that the deadlines for complaints do not apply if a defect is due to gross negligence or intent on the part of the contractor.

In order for gross negligence or intent to be considered to exist, there will normally be very serious circumstances in which the work performed is found to be fraught with significant errors or omissions.

It is often said that the defect must be due to an embodiment that represents a “marked deviation from the requirement of prudent course of action” and it has to be about a “conduct which is highly reprehensible, in which the person concerned is therefore substantially more to blame than in the case of general negligence”, cf Rt 1989 p 1318.

Since the consequence of this form of guilt is the same, it is sufficient to focus on whether there is gross negligence.

For something to be considered to represent gross negligence, it is inherent in this that the person responsible is strongly to be reproached.

In other words, sloppiness is not enough, nor is it natural to apply such a term to curant construction work.

If, for example, one has nailed lying cladding with excessive pressure on the nail gun so that the wood fibers around the nail hole are broken with a correspondingly increased probability of somewhat shorter service life of the panel, it is unnatural to characterize this as grossly negligent.

If, on the other hand, you glaze balconies in a larger condominium with many floors and use shatterable glass that is not dimensioned for snow or other forms of stress, the probability of the glass shattering and flaring to the ground will be unacceptably high. The extent and severity of possible consequential damage if such glass falls from a great height and hits people below would be considerable. In such a situation, one will probably reasonably quickly be able to conclude that the deficiency is due to gross negligence.

We do not go into this further because these types of situations and not least assessments suggest that a lawyer should be involved.

Incidentally, it is primarily in situations where the deadlines for complaints have expired that one normally finds reason to plead gross negligence and intent.

5. Relationship with the statute of limitations

In NS 8407, paragraph 42.2.4, a provision has been made on the relation of the complaint rules to the statute of limitations in the statute of limitations. A similar provision does not exist in NS 8405 and NS 8406, but it has no legal significance. In NS 8407, it is included to inform the parties, and the same, of course, should have been done in the other two standard contracts.

The statute of limitations applies universally, and we have written a separate article on the relationship between complaint rules and statute of limitations rules, read here.

Keep in mind that a claim may be obsolete even if you have remembered to advertise on time in accordance with the complaint rules. Similarly, one may have advertised too late and thus lost their claim, even if the claim is not obsolete.

For an entrepreneur, it is important to be careful with these rules so that one does not unnecessarily assume responsibility for something that is already obsolete.

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