Warranty for hidden defects in a property – when does it apply?

Property buyers are now protected by the amended Consumer Rights Act, which has effectively put an end to the deceitful clauses that many people encountered in agreements signed with developers. What should we do if we discover a defect or fault in the property we have bought? We can claim our rights under the statutory warranty (rękojmia). When does this provision apply? Let's find out!

• Bad developer practices – unlawful clauses in agreements
• Warranty on the primary market
• Warranty for hidden defects in a property on the secondary market – few people know about it

Bad developer practices – unlawful clauses in agreements

Until 2015 it was common practice among developers to use clauses in agreements that effectively limited the buyer's ability to exercise their warranty rights. The amendment of the act improved the buyer's position, but the content of the agreements you sign should still be checked.

Prohibited provisions in agreements with a developer (warranty):

• excluding the right to withdraw from the agreement when defects are discovered by the consumer
• selectively specifying the types of defects that the developer undertakes to repair
• provisions imposing strict rules on reporting defects in the property are prohibited
• the developer may not shorten the time for claiming under the warranty or modify the terminology
• the developer may not redefine the concept of a physical defect in a building
• dividing the work into construction works and supplies of materials, setting different warranty periods for each of them, is prohibited.

The above provisions are a selection of those identified by the Office of Competition and Consumer Protection, which clearly classed them as prohibited. At present, when we acquire a property we have a 5-year warranty period in which we can claim our rights. The only exception is when the seller informed us of a defect in the property, and we accepted that fact and agreed to conclude the transaction.

IMPORTANT
The seller's liability under the warranty for defects in the thing sold is absolute. What does that mean? The seller cannot exclude liability under the warranty regardless of whether or not they knew about the defect at the time of sale.

READ ALSO: TERMINATING AN EXCLUSIVE AGENCY AGREEMENT

Warranty on the primary market

One of the cases a client brought to us concerned a strange smell in a flat. After buying the property and moving in, the client began to notice a very unpleasant smell hanging in the rooms 8 months later (when summer arrived). In this case the rules on the warranty for defects in the thing sold and on the guarantee apply in full. The developer was informed of the problem and a deadline was set for repairing the damage.

If we discover a defect or fault in a flat that the developer did not tell us about, we can demand a reduction in the price of the property, or even withdraw from the agreement. We can also demand that the flat be replaced with one that has no defect. The most commonly chosen solution is for the developer itself to repair the damage.

Clients of our office often ask about the possibility of withdrawing from the agreement in such a case. There are grounds for this if the defect we have identified has the hallmarks of a "material defect". Although the law does not define this concept precisely, we can assume that defects of this kind make it impossible to use the property as intended or greatly reduce its value.

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Warranty for hidden defects in a property on the secondary market – few people know about it

But what if we are buying a property on the secondary market? Few people are aware that in this case too the buyer has the right to the warranty for defects. When buying a flat on the secondary market we cannot require the seller to repair a discovered fault, because they are not the manufacturer of the thing. We can, however, expect a reduction in the price or withdraw from the agreement. Let us remember that the warranty does not apply where the defect in the thing results from the passage of time and normal use.

Did you like the article? Write to us and arrange a meeting with a representative of the estate agency REMAX Gold. We are the largest brand on the estate agency market and we will help you find the perfect flat. With us you will also receive full legal support and avoid unpleasant situations.