Buying a flat is one of the most important financial decisions in life. Therefore, it is good to know the basic tools to protect your rights. One of them is warranty, i.e. the seller's statutory liability for defects in the property. Valid on both the primary and secondary markets. It operates regardless of guarantees or contractual provisions and results directly from the provisions of the Civil Code.
What is warranty?
The warranty applies to physical and legal defects of the sold item. Experts from the GetHome.pl portal remind us that in the case of an apartment, a physical defect is any non-compliance of the premises with the contract or its intended use. These may include construction errors, leaky windows, installation faults, cracking walls, incorrect square footage or deviations from the design. A legal defect will be the encumbrance of the property with the rights of third parties or the inability of the seller to sell it freely.
Legal basis
The warranty rules are specified in the provisions of Art. 556–576 of the Civil Code. In the consumer-entrepreneur relationship, they are mandatory. This means that the developer or the company selling the apartment cannot exclude or limit the warranty towards the buyer. The Development Act also plays an important role in primary transactions, which regulates the process of purchase, acceptance of premises and transfer of ownership.
Warranty period and reporting defects after one year
Until the end of 2014, the warranty for real estate was valid for 3 years. After the Consumer Rights Act came into force, this period was extended to 5 years. The change came into force on December 25, 2014 and significantly strengthened the buyer's position, because many building defects appear only after long-term use.
For the first year, there is a presumption that if a defect is discovered, it already existed at the time the apartment was handed over. It is up to the seller to prove otherwise. After one year, the presumption no longer applies, but the buyer can still report defects until the end of the five-year warranty period. The difference is that the burden of proof shifts to him. He must demonstrate that the defect results from causes inherent in the property from the beginning.
If a defect is reported just before the expiry of 5 years, the buyer's claims do not automatically expire after the end of the warranty period. The seller's liability lasts as long as the buyer asserts his rights. The warranty ceases to apply only when the defect becomes apparent after five years.
Warranty upon receipt of the apartment from the developer
Technical acceptance is the moment when the buyer checks the premises for compliance with the design and finishing standard. An acceptance report is prepared, which should include all noticed defects. The developer has 30 days to remove them or indicate a new deadline if the repair requires more time. Failure to record the defect in the report does not deprive the buyer of the right to later claims. Defects discovered after acceptance are still subject to warranty.
Defects revealed after time
Many faults appear only after several months of use. Moisture, thermal bridges, ventilation errors, cracking plasters or leaks are problems that often cannot be detected at the acceptance stage. That's why it's so important to report them in writing and in a documentable way. The seller is obliged to respond within a reasonable time. Lack of response may be considered acceptance of the complaint.
Buyer's rights
The buyer has the right to demand:
- removal of the defect,
- price reduction,
- withdraw from the contract if the defect is significant,
- refund of repair costs if the seller did not remove the defect within the specified period.
According to GetHome.pl experts, the first two forms are most often used. Withdrawal from the contract is possible, but requires the existence of serious (material) defects.
Material defect and the right to withdraw from the contract
The buyer is entitled to withdraw from the contract only if the defect is significant, i.e. it prevents the proper use of the apartment or seriously limits the possibility of using it in accordance with its intended purpose. Significance is also evidenced by a significant reduction in the value of the property or the need to carry out expensive and extensive renovation.
Significant defects include, among others, construction defects, problems with the gas or electrical installation, serious leaks, deep moisture, construction errors requiring general renovation or major deviations from the design affecting the functionality of the premises.
The right of withdrawal arises when the defect is significant and the seller does not remedy it within the stipulated time. In exceptional cases, withdrawal is possible immediately if the repair is unrealistic or the seller is not willing to perform it.
How to effectively file a warranty claim
For a claim to be effective, the buyer must inform the seller of the defect in a way that can be proven. The safest solution is in writing: a registered letter, an e-mail with confirmation of posting or a form provided by the seller.
The notification should include a description of the defect, the date it was noticed, an indication of the claim and documentation, if the buyer has it. There is no need to know the technical cause of the fault. A description of its symptoms and effects is enough. It is only important that the application is sent within the warranty period. If this happens, the buyer's claims do not expire even if further proceedings continue after five years.
The seller should respond within a reasonable time. Lack of response may be treated as acceptance of the complaint. For this reason, it is worth keeping the confirmation of shipment and all correspondence related to the case.
Warranty on the secondary market
The warranty also applies when purchasing an apartment from the secondary market. The seller is liable for defects in the property for 5 years from its delivery. However, in transactions between natural persons, it is possible to contractually exclude or limit the warranty. This only applies to situations where the buyer is not a consumer and the seller is not acting as an entrepreneur.
The scope of this possibility is specified in Art. 558 of the Civil Code, which states:
Ҥ 1. The parties may extend, limit or exclude liability under the warranty.
If the buyer is a consumer, limitation or exclusion of warranty liability is permitted only in cases specified in specific provisions.
§ 2. Exclusion or limitation of warranty liability is ineffective if the seller has fraudulently concealed the defect from the buyer.”
As experts from the GetHome.pl portal emphasize, in practice this means that although it is possible to exclude the warranty in a private sales contract, it does not always lead to the release of the seller from liability. The most important limitation results from a situation in which the seller concealed a defect or did not inform about a problem that was known to him.
This applies especially to problems such as:
- previous flooding,
- constant or recurring moisture,
- cracks in walls and ceilings,
- installation failures,
- damage that was the subject of previous repairs,
- defects visible in technical documentation or damage reports,
- problems that have been reported to the community or administration.
In such cases, the exclusion of warranty in the contract becomes ineffective and the seller remains liable. It does not matter whether the failure to provide information resulted from deliberate concealment or from the assumption that “the buyer will find out on his own.” The seller is obliged to provide all relevant information known to him about the technical condition of the property.
As a result, the secondary market buyer retains real protection. The exclusion of warranty protects the seller only if he acted in good faith, provided a full picture of the condition of the property and did not omit information that could be important for the buyer's decision.
Why warranty matters
Warranty is one of the most important tools for protecting a home buyer. It gives you the opportunity to pursue claims, provides balance in your relationship with a professional seller and protects you against the costly consequences of construction defects. For this reason, it is worth knowing your rights, observing deadlines and reporting defects in an appropriate form and properly documented.
Marcin Moneta
