Suffering from construction defects in the apartment? This way you can claim and receive compensation

Every year, thousands of apartment buyers in Israel suffer from a phenomenon that has already become a scourge of the state – construction defects in their apartments. “This is a very common phenomenon,” says Adv. Amos Ilan of Kolodny & Co., which specializes in planning and construction, construction defects and real estate. “Unfortunately, this is a state blow that is repeated in a high percentage of the projects that are being built today.”

He explains that construction defects appear in apartments, common areas, elevators, parking lots and even in the development areas around the building. The eclipse can be visible and significant, but can sometimes only be discovered after years. “Every apartment has flaws, where more and where less, but I have never seen an apartment that turned out to be perfect,” he says. “While there are negligible defects that are addressed by the contractor, we see contractors who not only have created significant defects but also do not provide the appropriate service and do not properly handle the required.”

So what exactly are construction defects, who can be sued and what is actually being asked of the court? With the help of Adv. Ilan, we tried to answer some of the questions in the field that concern the apartment owners.

What is actually considered “construction defects”?

Construction defects in this simplicity delivery of a defective product to the purchaser. In the world of construction defect claims we mainly deal with three groups: irreparable defects, repairable defects and delays in delivery.

Repairable defects are especially common in finishing details, flooring, blockages in pipes, cracks, crooked walls and more. One of the most common and disturbing defects is fluidity. The leaks are caused by a variety of factors, including lack of waterproofing between floors, lack of waterproofing of public surfaces and balconies for apartments below them, plumbing that goes out to the roof and no proper sealing has been done, faults in sealing parking basements, unprofessional execution of construction methods and more.

Sometimes the source of the leak is very difficult to locate, and even more so to repair. According to Adv. Ilan, “In these defects we usually claim relief from the actual repair and not monetary compensation. “There are unique companies that specialize in locating leaks through various tests such as thermal imaging, inserting cameras inside pipes and more.”

Defects that are not repairable are those that are usually associated with very poor design or execution. “For example,” explains Adv. Ilan, “in a lawsuit in a luxury building in Tel Aviv that we are handling, high ceilings have been agreed upon and there is a drawing with the promised dimensions. But in practice about 15 cm are missing. This defect is not repairable, as we will not be able to ‘stretch’ the floor, and therefore monetary compensation known as impairment is required. Delay in delivery does not fall under the definition of defect but at the same time due to legal rules of extraction The rule of law must be included as part of the monetary claim. ”

What causes construction defects and how can they be prevented?
Deficiencies are due first and foremost to the lack of proper supervision, both at the level of the developer and at the level of the authorities. Other factors, such as unprofessional manpower, missing tools, contempt and carelessness of subcontractors, poor management and non-compliance with inspection procedures and delivery of apartments to buyers.

These factors are not under the control of the buyer and therefore, in an attempt to prevent a construction defect in advance, “our recommendation is to ensure that the purchase contract gives the buyer the right to visit the construction site accompanied by a professional on his behalf throughout all stages of construction. “, Notes Adv. Ilan.

He adds that “in order to avoid dealing with defects after entering the apartment in the first place, it must be agreed in advance that the delivery will be divided into two stages: first a preliminary delivery protocol will be performed, with the help of a professional. We agree that an outside professional will visit the building and draw attention to the defects. “

What must be done immediately when construction defects are discovered and who to contact first?
The defects must be documented in the photograph and all concerned must be notified in writing. The entrepreneur, who is the one who appears on the contract, must be notified, the operating contractor and the supervision company as much as possible. In addition, each case must be considered on its own merits as appropriate. Thus, for example, in a particular case a cladding tile fell from a high-rise apartment. Adv. Ilan notes that “I have decided to make an extreme act of contacting the person in charge of dangerous buildings in the municipality. “The contractor who stopped the construction of him in a rage project – but soon hurried to give a solution.”

Who is being sued for construction defects and what is the importance of the timing of the lawsuit?
First and foremost, the claim is filed against the person who meets the definition of “seller” in the Sale (Dwellings) Law, ie the person who appears in the contract of sale. It should be noted that the law also applies to those who built a house and sold it during the first year from the end of its construction. Adv. Ilan clarifies that “the Sale (Dwellings) Law stipulates different presumptions for the seller and stipulates absolute inspection and warranty periods that the buyer does not need to prove any negligence. To the extent that they are interested in adding additional parties to the claim, such as the operating contractor, the supervisor, the architect, the engineer, etc., the buyer does not have a direct contract with them and therefore their liability is ordinary damages, ie the negligence must be proven.

“As stated, the contractor should be allowed to make repairs himself during the inspection period, but we emphasize that do not drag after idle correspondence and provisional repairs for too long. The reason: Some repairs have inspection periods and various shorter or longer warranties, and a delay in filing a claim may prevent you from receiving a repair. Defects. “

Is it better to sue each apartment alone or get organized as a building?
When the lawsuit deals with the common property, there is an advantage to organizing all the tenants and spreading the costs of the lawsuit and the experts over as many people as possible in such a way that each individual’s share of the expense will be smaller. In claims that deal with the apartments themselves, there will be an engineering opinion for each apartment anyway, and each claim is different from the other. On the other hand, there are situations where the connection between the apartments is required.

What do you sue?
Adv. Ilan notes that “in our experience, it is advisable to request a correction of the deficiencies under the supervision of a court expert. Only in cases where the defect cannot be repaired, as in the example of a ceiling that is too low, can monetary compensation be demanded. The purpose of the lawsuit is not to receive a small, one-time financial gain, but to thoroughly resolve the deficiencies. ”

Must an expert opinion be attached along with the filing of the claim?
Beyond the legal obligation to attach an expert opinion to the statement of claim, this is also required for the purpose of characterizing the deficiencies and making a decision on the course of action – a monetary claim, a claim for an order made, or a combination. Choosing an expert on behalf of the plaintiffs is critical. The expert will influence both the deficiencies that will appear in the report that will be presented to the court, and later on will be a critical tool accompanied by the expert appointed on behalf of the court during the management of the case.

A good expert sleeps and will affect both the execution of the corrections and the court expert’s reference, from end to end, and therefore his choice should be made with thought and after legal advice. After filing a lawsuit, the court usually appoints an expert or experts who oversee not only the examination of the defects. Sometimes these experts are even appointed to carry out the repair management. Choosing a specialist agreed upon, therefore, is critical and will also affect how the repair will be carried out.

Is it worth repairing independently and then suing?
“The rule is that the contractor has the right to repair the defects. Therefore, independent repair must be performed responsibly and carefully, taking a number of important actions. The lawyer handling the claim must consider whether the independent repair caused evidentiary damage or may appear to be responsible for the defect.”

When is it possible to repair independently and then sue? “Independent repair is carried out in exceptional cases. For example in an apartment purchased at a partial shell level, ie without toilets, baths, kitchen, air conditioning, etc., there were many defects. It was clear that the buyers were going to renovate for the entire finish and then repair the contractor’s defects. In this case, we would wait until the verdict, because it would mean that the apartment could not be used, perhaps for years, so we informed the contractor that there was an intention to carry out renovations, that he was welcome to document everything he wanted in the apartment As we expected, he claimed for evidentiary damage, but his claim was not accepted. “

Adv. Ilan notes that “skilled legal and engineering advice at the stage of obtaining possession and locating the defects is required in order to avoid a situation of being left with defects. It is possible and possible to correct most of the deficiencies in the correct and professional management of the procedure. “