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Deficiencies and complaints

Kortversjonen

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1. Introduction

Building defects and defects are one of the major challenges within the construction industry, and what has received the most attention from the legislature in recent decades. It was the scale of building defects that justified the authorities' introduction of the liability law system in the Planning and Buildings Act in the late 1990s, and which was subsequently followed up with the introduction of independent scrutiny about 15 years later.

It is on the takeover itself that the final assessment of the subcontractor's works is made. Only at this time the total/general contractor has the right to take over the contract object, and then it should be free of defects and defects. Until the takeover, the starting point is that the subcontractor has full control over his own work. One consequence is that the subcontractor must accept that his work will be subject to a thorough evaluation as part of the takeover transaction.

In the standard contracts there are many provisions regulating defects and the rights and obligations of the parties in this regard. This is what is the topic of this article.

First, however, it may be appropriate to recall certain provisions of relatively central importance for the interaction of the parties leading up to the takeover.

Firstly, we have the provision that the subcontractor cannot claim that the works have been carried out under the supervision of the general or general contractor respectively, cf. NS 8417 paragraphs 20.2 and 20.3, NS 8415 paragraph 14.1 and NS 8416 paragraph 14.

Secondly, we have the provision on the obligation of the subcontractor to correct conditions during the construction period in which the works have been carried out in violation of the contract or the works have suffered a damage, cf. NS 8417 paragraph 20.5 and NS 8415 paragraph 11.2.

Thirdly, we have the provisions concerning the termination of the construction case, which deal, among other things, with the requirements for testing, adjustment, etc., as well as the submission of test documentation within the agreed deadline, cf. NS 8417 paragraph 36.1 and NS 8415 paragraph 32.2.

Fourth, we refer to the provision on notice of takeover business, cf. NS 8417 paragraph 36.3, which assumes that the subcontractor has carried out a separate inspection, written lists of deficiencies and unfinished works, and transmitted the lists to the total/general contractor as part of the notice.

Fifth, we refer to NS 8417 paragraph 37.1, where it is stated that the subcontractor must submit the list from his own final inspection. It shall state what has been rectified and/ or completed and what has not been remedied/completed.

2. Overview of the rules

The rules can be found in NS 8417 paragraph 42, NS 8415 paragraph 36 and NS 8416 paragraph 27.

3. What is a deficiency?

The standard contracts' provision for “shortage” is quite short.

There is a deficiency if the subject of the contract “in the case of the takeover does not meet the requirements of paragraph 14, and this is due to circumstances” the subcontractor is responsible for, cf. NS 8417 paragraph 42.1.

The corresponding provisions of NS 8415 paragraph 36.1 and NS 8416 paragraph 27.1 contain in fact the same rule specifying that the works shall be “in the condition the general contractor is entitled to under the contract”.

This means that it is the agreement with all its annexes that forms the starting point for the total/general contractor's assessment of the subject matter of the contract, cf. NS 8417 paragraph 14.1, NS 8415 paragraph 11.1 and NS 8416 paragraph 11.

In the total subcontracting, the works shall also be assessed on the basis of the provisions of 14.2 (unspecified parts), paragraph 14.3 (the purpose of the builder), paragraph 14.4 (laws, regulations and public decisions) and paragraph 14.5 (general norms).

When assessing the works of a total subcontractor (NS 8417), this assessment can be far more detailed or comprehensive than would be the case in subcontracting (NS 8415 and NS 8416).

In subcontracting, it is the main contractor who has the design and functional risk. Thus, it is also essential to assess whether the execution matches the design.

In total subcontracting, the total subcontractor has the responsibility and risk that the functional requirements are met,

This assessment is more complex, and for several reasons.

First, it follows from NS 8417, paragraph 14.6, that the general subcontractor has relatively great freedom of choice as to how functional requirements are to be fulfilled as long as he remains within the agreed limits.

Secondly, it follows from NS 8417 paragraph 14.4 that, inter alia, laws and regulations must be complied with. The central regulation is the Technical Regulation (TEK 17) and this contains mostly functional requirements. The guide to technical regulation indicates preaccepted solutions. If the supervisor is complied with, the functional requirements of the regulations will be met. Therefore, if no more stringent requirements than those of TEK 17 have been agreed, cf. NS 8417 paragraph 14.1, the works will only be measured against the requirements of TEK 17 and its supervisor.

In this case, a challenge may arise if the total subcontractor has chosen to resolve functional requirements in TEK 17 in ways other than those specified in the supervisor. It follows from TEK 17 § 2-2 (2) letter b and paragraph 3 that the total subcontractor must be able to document - through an analysis - that the selected solution satisfies the functional requirements of the regulation.

Thirdly, the selected solution must satisfy the purpose of the builder, cf. NS 8407 paragraph 14.3. With reference to the functional requirements of TEK 17, it cannot be ruled out that these are more stringent, in which case it may not be sufficient to prove by analysis that the selected solution satisfies TEK 17 even if the supervisor's preaccepted solutions have not been used.

Fourthly, the current standards for how technical facilities are to be designed, built and not least tested are quite detailed, cf. NS 8417 paragraph 14.5 (General norms).

Consequently, the work to qualitatively ensure that the technical facilities meet agreed requirements can be relatively extensive and complex.

In addition, there is the more traditional control of execution that applies to both subcontracting and total subcontracting. We then refer to conditions such as agreed tolerance classes (solder deviations, flatness, bends, dents etc.), surface finish, whether the right materials have been used, whether the works are of good workmanship, etc.

In sum, this means that the takeover business could be time-consuming, reasonably complex and necessitate the use of heavy, expert assistance.

However, we do not often see that these types of assessments and checks are carried out by the main/general contractor or his assistants.

Since the general rule is that a joint takeover business is held for all involved when the general contractor is to hand over to the builder, cf. NS 8417 paragraph 36.1, it is normally the builder and his assistants who control the works of the individual total subcontractors.

Similarly normally also applies in subcontracting, see NS 8415 paragraph 32.1 and NS 8416 paragraph 24.1.

If the total/general contractor disagrees with the builder's complaints about the subcontractor's works, he will often be able to dispute the builder's complaints, but still pass on the complaints to his subcontractors.

4. Complaints

4.1 Introduction

We distinguish between two types of complaint deadline, namely the relative and the absolute complaint deadline.

If you are to retain your right of complaint, both types of complaint deadlines must be respected.

In addition, the claim must not be obsolete.

We have written about the relationship between advertising and limitation periods in a separate article; read more here.

The relative time limit for complaints means that the person who wants to make a complaint (general or general contractor) must report the defect relatively quickly to the responsible person (subcontractor), and at the same time state that he is held responsible for the defect.

If you do not react quickly enough, thereby exceeding the relative time limit for complaints, you risk losing your claim for, for example, rectification.

The reason for the rule is that the person in charge should be given the opportunity to safeguard their interests.

It may be, for example, that the conditions on the spot show that the alleged defect is not a defect in the person's work, but damage caused by a third party.

Alternatively, unnecessary waste of time may cause the defect to develop and become more extensive, possibly resulting in consequential damage that could have been prevented with a previous complaint.

The fact that the injured party may live with a deficiency is therefore not central to the subjective complaint deadline. The whole purpose is for the responsible party to be given the opportunity to conduct their investigations, make their assessments and then take remedial and/or remedial action as quickly as necessary.

With the exception of the provision in each of the standard contracts which deals with the absolute deadline for complaints, it is the relative complaint deadlines that are central.

The absolute deadline for complaints is about how long the person responsible should have a potential defect liability hanging over them. It follows from the respective standard contracts that this deadline is five years counted from the takeover.

4.2 Complaints in case of takeover

It follows from the provisions of the standard contracts on complaints that the takeover business is very central.

In NS 8417, paragraph 42.2.1, it is stated that the general contractor “loses its right” to make claims of deficiency if you do not “at the latest at the closing of the takeover business” Advertise deficiencies “he has or should have discovered” on the takeover business.

Similar provisions apply to the execution centres, see NS 8415 paragraph 36.6 and NS 8416 paragraph 27.5.

The fact that the standards use the term “should have” shows that a due diligence requirement is imposed on the total or general contractor.

In other words, it is not enough to advertise the conditions that one sees as lacking. One risks losing one's claims if one overlooks something one “should have” discovered. This indicates that you are thorough in your control of the contract work.

Above, we briefly discussed how takeover deals are usually conducted, namely in that the general contractor or general contractor may tend to leave most of the review to the builder and his advisors.

Well, it is conceivable that what a builder “should have” discovered on a takeover business does not necessarily include the same, or as much, as that of a total or general contractor “should have” detected by deficiencies in the works of a subcontractor.

This mentioned since there is a subjective assessment that must be made of what the individual “should have” discovered.

Another thing is that no one is obliged to tear up constructions to uncover whether, perhaps, there may be hidden flaws or shortcomings.

However, spot checks of suspended ceilings to check that the requirements for clean dry building have been complied with will probably be expected.

This is in order to have made some effort to ensure that construction dust is not sucked into the air conditioner and/ or in other ways creates post-takeover challenges.

By the way, the question of what “should have” discovered to be a situational and concrete assessment.

Since the takeover protocol is central and all deficiencies must be recorded in it, cf. NS 8417 paragraph 42.2.1, last paragraph, one should also consider attaching to the protocol a brief description of how the takeover procedure was carried out.

The general advice is anyway that the total/general contractor meets well prepared. In this regard, the total/general contractor is encouraged to have reviewed all test documentation and FDV documentation in advance, conducted inspections with its subcontractors and preferably have ensured that these have been corrected/completed well in advance of the takeover transaction with the builder.

To the extent that deficiencies are recorded in the Takeover Protocol, the Total/General Contractor should indicate which subcontractor is considered responsible for the individual deficiency.

4.3 Subsequent complaints

Very often errors and deficiencies are discovered in the time after the takeover, and most are usually discovered within the first year after the contract object was taken over.

One likes to call this type of defect “hidden” flaws and defects.

The visible ones were preferably advertised on the takeover.

For such hidden defects and defects that are discovered after the takeover, the rule is that one must advertise “within a reasonable time” after that man “have or should have discovered” the shortage.

Although the absolute deadline for complaints is five years from the takeover, of course, one cannot wait that long to advertise. You have to advertise within “reasonable time”, and if you don't make that loss claim.

Between professional parties involves “reasonable time” You can let it go a few days or even a couple of weeks before you advertise. At least if the defect is of such a nature that it does not develop or inflict damage on other parts of the subject of the contract. It shouldn't take much longer than a couple of weeks.

In the case of a relationship that does not deteriorate and/ or does not entail any risk of consequential damage waiting to advertise, it is easier to accept that some time has passed, than where the lapse of time caused an aggravation of the deficiency.

In consumer affairs, the requirement is not “within a reasonable time” as strict as it is between professionals. In case law, there are examples that it may have been several months from the time a defect was discovered and until the consumer made a complaint.

This, by the way, is something that should be considered when designing special contract terms. A complaint from a consumer usually goes to the builder first. Then this is forwarded to the main or general contractor who then has to advertise to his subcontractor. It's boring if one of the parties (the middle one?) lose their rights downwards because one has not secured himself contractually.

Finally, mention is made of the rule that a new claim period of five years runs on all parts of the subject matter of the contract which have been rectified, but limited to one year from the expiry of the ordinary five-year period, cf. NS 8417 paragraph 42.2.2, second paragraph, NS 8415 paragraph 36.7, third paragraph and NS 8416 paragraph 27.6, third paragraph.

The consequence, in other words, is that the absolute maximum period for complaints is six years.

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 subcontractor.

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 8417 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. There is no equivalent provision in NS 8415 or NS 8416, but it has no legal significance.

The provision is made for information only to the parties.

The statute of limitations applies universally, and as mentioned above, we have written a separate article about the rules of complaint and the rules of the statute of limitations.

‍

Tilbake

Deficiencies and complaints

Kortversjonen

Lytt til artikkelen

1. Introduction

Building defects and defects are one of the major challenges within the construction industry, and what has received the most attention from the legislature in recent decades. It was the scale of building defects that justified the authorities' introduction of the liability law system in the Planning and Buildings Act in the late 1990s, and which was subsequently followed up with the introduction of independent scrutiny about 15 years later.

It is on the takeover itself that the final assessment of the subcontractor's works is made. Only at this time the total/general contractor has the right to take over the contract object, and then it should be free of defects and defects. Until the takeover, the starting point is that the subcontractor has full control over his own work. One consequence is that the subcontractor must accept that his work will be subject to a thorough evaluation as part of the takeover transaction.

In the standard contracts there are many provisions regulating defects and the rights and obligations of the parties in this regard. This is what is the topic of this article.

First, however, it may be appropriate to recall certain provisions of relatively central importance for the interaction of the parties leading up to the takeover.

Firstly, we have the provision that the subcontractor cannot claim that the works have been carried out under the supervision of the general or general contractor respectively, cf. NS 8417 paragraphs 20.2 and 20.3, NS 8415 paragraph 14.1 and NS 8416 paragraph 14.

Secondly, we have the provision on the obligation of the subcontractor to correct conditions during the construction period in which the works have been carried out in violation of the contract or the works have suffered a damage, cf. NS 8417 paragraph 20.5 and NS 8415 paragraph 11.2.

Thirdly, we have the provisions concerning the termination of the construction case, which deal, among other things, with the requirements for testing, adjustment, etc., as well as the submission of test documentation within the agreed deadline, cf. NS 8417 paragraph 36.1 and NS 8415 paragraph 32.2.

Fourth, we refer to the provision on notice of takeover business, cf. NS 8417 paragraph 36.3, which assumes that the subcontractor has carried out a separate inspection, written lists of deficiencies and unfinished works, and transmitted the lists to the total/general contractor as part of the notice.

Fifth, we refer to NS 8417 paragraph 37.1, where it is stated that the subcontractor must submit the list from his own final inspection. It shall state what has been rectified and/ or completed and what has not been remedied/completed.

2. Overview of the rules

The rules can be found in NS 8417 paragraph 42, NS 8415 paragraph 36 and NS 8416 paragraph 27.

3. What is a deficiency?

The standard contracts' provision for “shortage” is quite short.

There is a deficiency if the subject of the contract “in the case of the takeover does not meet the requirements of paragraph 14, and this is due to circumstances” the subcontractor is responsible for, cf. NS 8417 paragraph 42.1.

The corresponding provisions of NS 8415 paragraph 36.1 and NS 8416 paragraph 27.1 contain in fact the same rule specifying that the works shall be “in the condition the general contractor is entitled to under the contract”.

This means that it is the agreement with all its annexes that forms the starting point for the total/general contractor's assessment of the subject matter of the contract, cf. NS 8417 paragraph 14.1, NS 8415 paragraph 11.1 and NS 8416 paragraph 11.

In the total subcontracting, the works shall also be assessed on the basis of the provisions of 14.2 (unspecified parts), paragraph 14.3 (the purpose of the builder), paragraph 14.4 (laws, regulations and public decisions) and paragraph 14.5 (general norms).

When assessing the works of a total subcontractor (NS 8417), this assessment can be far more detailed or comprehensive than would be the case in subcontracting (NS 8415 and NS 8416).

In subcontracting, it is the main contractor who has the design and functional risk. Thus, it is also essential to assess whether the execution matches the design.

In total subcontracting, the total subcontractor has the responsibility and risk that the functional requirements are met,

This assessment is more complex, and for several reasons.

First, it follows from NS 8417, paragraph 14.6, that the general subcontractor has relatively great freedom of choice as to how functional requirements are to be fulfilled as long as he remains within the agreed limits.

Secondly, it follows from NS 8417 paragraph 14.4 that, inter alia, laws and regulations must be complied with. The central regulation is the Technical Regulation (TEK 17) and this contains mostly functional requirements. The guide to technical regulation indicates preaccepted solutions. If the supervisor is complied with, the functional requirements of the regulations will be met. Therefore, if no more stringent requirements than those of TEK 17 have been agreed, cf. NS 8417 paragraph 14.1, the works will only be measured against the requirements of TEK 17 and its supervisor.

In this case, a challenge may arise if the total subcontractor has chosen to resolve functional requirements in TEK 17 in ways other than those specified in the supervisor. It follows from TEK 17 § 2-2 (2) letter b and paragraph 3 that the total subcontractor must be able to document - through an analysis - that the selected solution satisfies the functional requirements of the regulation.

Thirdly, the selected solution must satisfy the purpose of the builder, cf. NS 8407 paragraph 14.3. With reference to the functional requirements of TEK 17, it cannot be ruled out that these are more stringent, in which case it may not be sufficient to prove by analysis that the selected solution satisfies TEK 17 even if the supervisor's preaccepted solutions have not been used.

Fourthly, the current standards for how technical facilities are to be designed, built and not least tested are quite detailed, cf. NS 8417 paragraph 14.5 (General norms).

Consequently, the work to qualitatively ensure that the technical facilities meet agreed requirements can be relatively extensive and complex.

In addition, there is the more traditional control of execution that applies to both subcontracting and total subcontracting. We then refer to conditions such as agreed tolerance classes (solder deviations, flatness, bends, dents etc.), surface finish, whether the right materials have been used, whether the works are of good workmanship, etc.

In sum, this means that the takeover business could be time-consuming, reasonably complex and necessitate the use of heavy, expert assistance.

However, we do not often see that these types of assessments and checks are carried out by the main/general contractor or his assistants.

Since the general rule is that a joint takeover business is held for all involved when the general contractor is to hand over to the builder, cf. NS 8417 paragraph 36.1, it is normally the builder and his assistants who control the works of the individual total subcontractors.

Similarly normally also applies in subcontracting, see NS 8415 paragraph 32.1 and NS 8416 paragraph 24.1.

If the total/general contractor disagrees with the builder's complaints about the subcontractor's works, he will often be able to dispute the builder's complaints, but still pass on the complaints to his subcontractors.

4. Complaints

4.1 Introduction

We distinguish between two types of complaint deadline, namely the relative and the absolute complaint deadline.

If you are to retain your right of complaint, both types of complaint deadlines must be respected.

In addition, the claim must not be obsolete.

We have written about the relationship between advertising and limitation periods in a separate article; read more here.

The relative time limit for complaints means that the person who wants to make a complaint (general or general contractor) must report the defect relatively quickly to the responsible person (subcontractor), and at the same time state that he is held responsible for the defect.

If you do not react quickly enough, thereby exceeding the relative time limit for complaints, you risk losing your claim for, for example, rectification.

The reason for the rule is that the person in charge should be given the opportunity to safeguard their interests.

It may be, for example, that the conditions on the spot show that the alleged defect is not a defect in the person's work, but damage caused by a third party.

Alternatively, unnecessary waste of time may cause the defect to develop and become more extensive, possibly resulting in consequential damage that could have been prevented with a previous complaint.

The fact that the injured party may live with a deficiency is therefore not central to the subjective complaint deadline. The whole purpose is for the responsible party to be given the opportunity to conduct their investigations, make their assessments and then take remedial and/or remedial action as quickly as necessary.

With the exception of the provision in each of the standard contracts which deals with the absolute deadline for complaints, it is the relative complaint deadlines that are central.

The absolute deadline for complaints is about how long the person responsible should have a potential defect liability hanging over them. It follows from the respective standard contracts that this deadline is five years counted from the takeover.

4.2 Complaints in case of takeover

It follows from the provisions of the standard contracts on complaints that the takeover business is very central.

In NS 8417, paragraph 42.2.1, it is stated that the general contractor “loses its right” to make claims of deficiency if you do not “at the latest at the closing of the takeover business” Advertise deficiencies “he has or should have discovered” on the takeover business.

Similar provisions apply to the execution centres, see NS 8415 paragraph 36.6 and NS 8416 paragraph 27.5.

The fact that the standards use the term “should have” shows that a due diligence requirement is imposed on the total or general contractor.

In other words, it is not enough to advertise the conditions that one sees as lacking. One risks losing one's claims if one overlooks something one “should have” discovered. This indicates that you are thorough in your control of the contract work.

Above, we briefly discussed how takeover deals are usually conducted, namely in that the general contractor or general contractor may tend to leave most of the review to the builder and his advisors.

Well, it is conceivable that what a builder “should have” discovered on a takeover business does not necessarily include the same, or as much, as that of a total or general contractor “should have” detected by deficiencies in the works of a subcontractor.

This mentioned since there is a subjective assessment that must be made of what the individual “should have” discovered.

Another thing is that no one is obliged to tear up constructions to uncover whether, perhaps, there may be hidden flaws or shortcomings.

However, spot checks of suspended ceilings to check that the requirements for clean dry building have been complied with will probably be expected.

This is in order to have made some effort to ensure that construction dust is not sucked into the air conditioner and/ or in other ways creates post-takeover challenges.

By the way, the question of what “should have” discovered to be a situational and concrete assessment.

Since the takeover protocol is central and all deficiencies must be recorded in it, cf. NS 8417 paragraph 42.2.1, last paragraph, one should also consider attaching to the protocol a brief description of how the takeover procedure was carried out.

The general advice is anyway that the total/general contractor meets well prepared. In this regard, the total/general contractor is encouraged to have reviewed all test documentation and FDV documentation in advance, conducted inspections with its subcontractors and preferably have ensured that these have been corrected/completed well in advance of the takeover transaction with the builder.

To the extent that deficiencies are recorded in the Takeover Protocol, the Total/General Contractor should indicate which subcontractor is considered responsible for the individual deficiency.

4.3 Subsequent complaints

Very often errors and deficiencies are discovered in the time after the takeover, and most are usually discovered within the first year after the contract object was taken over.

One likes to call this type of defect “hidden” flaws and defects.

The visible ones were preferably advertised on the takeover.

For such hidden defects and defects that are discovered after the takeover, the rule is that one must advertise “within a reasonable time” after that man “have or should have discovered” the shortage.

Although the absolute deadline for complaints is five years from the takeover, of course, one cannot wait that long to advertise. You have to advertise within “reasonable time”, and if you don't make that loss claim.

Between professional parties involves “reasonable time” You can let it go a few days or even a couple of weeks before you advertise. At least if the defect is of such a nature that it does not develop or inflict damage on other parts of the subject of the contract. It shouldn't take much longer than a couple of weeks.

In the case of a relationship that does not deteriorate and/ or does not entail any risk of consequential damage waiting to advertise, it is easier to accept that some time has passed, than where the lapse of time caused an aggravation of the deficiency.

In consumer affairs, the requirement is not “within a reasonable time” as strict as it is between professionals. In case law, there are examples that it may have been several months from the time a defect was discovered and until the consumer made a complaint.

This, by the way, is something that should be considered when designing special contract terms. A complaint from a consumer usually goes to the builder first. Then this is forwarded to the main or general contractor who then has to advertise to his subcontractor. It's boring if one of the parties (the middle one?) lose their rights downwards because one has not secured himself contractually.

Finally, mention is made of the rule that a new claim period of five years runs on all parts of the subject matter of the contract which have been rectified, but limited to one year from the expiry of the ordinary five-year period, cf. NS 8417 paragraph 42.2.2, second paragraph, NS 8415 paragraph 36.7, third paragraph and NS 8416 paragraph 27.6, third paragraph.

The consequence, in other words, is that the absolute maximum period for complaints is six years.

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 subcontractor.

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 8417 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. There is no equivalent provision in NS 8415 or NS 8416, but it has no legal significance.

The provision is made for information only to the parties.

The statute of limitations applies universally, and as mentioned above, we have written a separate article about the rules of complaint and the rules of the statute of limitations.

‍

Tilbake

Deficiencies and complaints

Kortversjonen

Lytt til artikkelen

1. Introduction

Building defects and defects are one of the major challenges within the construction industry, and what has received the most attention from the legislature in recent decades. It was the scale of building defects that justified the authorities' introduction of the liability law system in the Planning and Buildings Act in the late 1990s, and which was subsequently followed up with the introduction of independent scrutiny about 15 years later.

It is on the takeover itself that the final assessment of the subcontractor's works is made. Only at this time the total/general contractor has the right to take over the contract object, and then it should be free of defects and defects. Until the takeover, the starting point is that the subcontractor has full control over his own work. One consequence is that the subcontractor must accept that his work will be subject to a thorough evaluation as part of the takeover transaction.

In the standard contracts there are many provisions regulating defects and the rights and obligations of the parties in this regard. This is what is the topic of this article.

First, however, it may be appropriate to recall certain provisions of relatively central importance for the interaction of the parties leading up to the takeover.

Firstly, we have the provision that the subcontractor cannot claim that the works have been carried out under the supervision of the general or general contractor respectively, cf. NS 8417 paragraphs 20.2 and 20.3, NS 8415 paragraph 14.1 and NS 8416 paragraph 14.

Secondly, we have the provision on the obligation of the subcontractor to correct conditions during the construction period in which the works have been carried out in violation of the contract or the works have suffered a damage, cf. NS 8417 paragraph 20.5 and NS 8415 paragraph 11.2.

Thirdly, we have the provisions concerning the termination of the construction case, which deal, among other things, with the requirements for testing, adjustment, etc., as well as the submission of test documentation within the agreed deadline, cf. NS 8417 paragraph 36.1 and NS 8415 paragraph 32.2.

Fourth, we refer to the provision on notice of takeover business, cf. NS 8417 paragraph 36.3, which assumes that the subcontractor has carried out a separate inspection, written lists of deficiencies and unfinished works, and transmitted the lists to the total/general contractor as part of the notice.

Fifth, we refer to NS 8417 paragraph 37.1, where it is stated that the subcontractor must submit the list from his own final inspection. It shall state what has been rectified and/ or completed and what has not been remedied/completed.

2. Overview of the rules

The rules can be found in NS 8417 paragraph 42, NS 8415 paragraph 36 and NS 8416 paragraph 27.

3. What is a deficiency?

The standard contracts' provision for “shortage” is quite short.

There is a deficiency if the subject of the contract “in the case of the takeover does not meet the requirements of paragraph 14, and this is due to circumstances” the subcontractor is responsible for, cf. NS 8417 paragraph 42.1.

The corresponding provisions of NS 8415 paragraph 36.1 and NS 8416 paragraph 27.1 contain in fact the same rule specifying that the works shall be “in the condition the general contractor is entitled to under the contract”.

This means that it is the agreement with all its annexes that forms the starting point for the total/general contractor's assessment of the subject matter of the contract, cf. NS 8417 paragraph 14.1, NS 8415 paragraph 11.1 and NS 8416 paragraph 11.

In the total subcontracting, the works shall also be assessed on the basis of the provisions of 14.2 (unspecified parts), paragraph 14.3 (the purpose of the builder), paragraph 14.4 (laws, regulations and public decisions) and paragraph 14.5 (general norms).

When assessing the works of a total subcontractor (NS 8417), this assessment can be far more detailed or comprehensive than would be the case in subcontracting (NS 8415 and NS 8416).

In subcontracting, it is the main contractor who has the design and functional risk. Thus, it is also essential to assess whether the execution matches the design.

In total subcontracting, the total subcontractor has the responsibility and risk that the functional requirements are met,

This assessment is more complex, and for several reasons.

First, it follows from NS 8417, paragraph 14.6, that the general subcontractor has relatively great freedom of choice as to how functional requirements are to be fulfilled as long as he remains within the agreed limits.

Secondly, it follows from NS 8417 paragraph 14.4 that, inter alia, laws and regulations must be complied with. The central regulation is the Technical Regulation (TEK 17) and this contains mostly functional requirements. The guide to technical regulation indicates preaccepted solutions. If the supervisor is complied with, the functional requirements of the regulations will be met. Therefore, if no more stringent requirements than those of TEK 17 have been agreed, cf. NS 8417 paragraph 14.1, the works will only be measured against the requirements of TEK 17 and its supervisor.

In this case, a challenge may arise if the total subcontractor has chosen to resolve functional requirements in TEK 17 in ways other than those specified in the supervisor. It follows from TEK 17 § 2-2 (2) letter b and paragraph 3 that the total subcontractor must be able to document - through an analysis - that the selected solution satisfies the functional requirements of the regulation.

Thirdly, the selected solution must satisfy the purpose of the builder, cf. NS 8407 paragraph 14.3. With reference to the functional requirements of TEK 17, it cannot be ruled out that these are more stringent, in which case it may not be sufficient to prove by analysis that the selected solution satisfies TEK 17 even if the supervisor's preaccepted solutions have not been used.

Fourthly, the current standards for how technical facilities are to be designed, built and not least tested are quite detailed, cf. NS 8417 paragraph 14.5 (General norms).

Consequently, the work to qualitatively ensure that the technical facilities meet agreed requirements can be relatively extensive and complex.

In addition, there is the more traditional control of execution that applies to both subcontracting and total subcontracting. We then refer to conditions such as agreed tolerance classes (solder deviations, flatness, bends, dents etc.), surface finish, whether the right materials have been used, whether the works are of good workmanship, etc.

In sum, this means that the takeover business could be time-consuming, reasonably complex and necessitate the use of heavy, expert assistance.

However, we do not often see that these types of assessments and checks are carried out by the main/general contractor or his assistants.

Since the general rule is that a joint takeover business is held for all involved when the general contractor is to hand over to the builder, cf. NS 8417 paragraph 36.1, it is normally the builder and his assistants who control the works of the individual total subcontractors.

Similarly normally also applies in subcontracting, see NS 8415 paragraph 32.1 and NS 8416 paragraph 24.1.

If the total/general contractor disagrees with the builder's complaints about the subcontractor's works, he will often be able to dispute the builder's complaints, but still pass on the complaints to his subcontractors.

4. Complaints

4.1 Introduction

We distinguish between two types of complaint deadline, namely the relative and the absolute complaint deadline.

If you are to retain your right of complaint, both types of complaint deadlines must be respected.

In addition, the claim must not be obsolete.

We have written about the relationship between advertising and limitation periods in a separate article; read more here.

The relative time limit for complaints means that the person who wants to make a complaint (general or general contractor) must report the defect relatively quickly to the responsible person (subcontractor), and at the same time state that he is held responsible for the defect.

If you do not react quickly enough, thereby exceeding the relative time limit for complaints, you risk losing your claim for, for example, rectification.

The reason for the rule is that the person in charge should be given the opportunity to safeguard their interests.

It may be, for example, that the conditions on the spot show that the alleged defect is not a defect in the person's work, but damage caused by a third party.

Alternatively, unnecessary waste of time may cause the defect to develop and become more extensive, possibly resulting in consequential damage that could have been prevented with a previous complaint.

The fact that the injured party may live with a deficiency is therefore not central to the subjective complaint deadline. The whole purpose is for the responsible party to be given the opportunity to conduct their investigations, make their assessments and then take remedial and/or remedial action as quickly as necessary.

With the exception of the provision in each of the standard contracts which deals with the absolute deadline for complaints, it is the relative complaint deadlines that are central.

The absolute deadline for complaints is about how long the person responsible should have a potential defect liability hanging over them. It follows from the respective standard contracts that this deadline is five years counted from the takeover.

4.2 Complaints in case of takeover

It follows from the provisions of the standard contracts on complaints that the takeover business is very central.

In NS 8417, paragraph 42.2.1, it is stated that the general contractor “loses its right” to make claims of deficiency if you do not “at the latest at the closing of the takeover business” Advertise deficiencies “he has or should have discovered” on the takeover business.

Similar provisions apply to the execution centres, see NS 8415 paragraph 36.6 and NS 8416 paragraph 27.5.

The fact that the standards use the term “should have” shows that a due diligence requirement is imposed on the total or general contractor.

In other words, it is not enough to advertise the conditions that one sees as lacking. One risks losing one's claims if one overlooks something one “should have” discovered. This indicates that you are thorough in your control of the contract work.

Above, we briefly discussed how takeover deals are usually conducted, namely in that the general contractor or general contractor may tend to leave most of the review to the builder and his advisors.

Well, it is conceivable that what a builder “should have” discovered on a takeover business does not necessarily include the same, or as much, as that of a total or general contractor “should have” detected by deficiencies in the works of a subcontractor.

This mentioned since there is a subjective assessment that must be made of what the individual “should have” discovered.

Another thing is that no one is obliged to tear up constructions to uncover whether, perhaps, there may be hidden flaws or shortcomings.

However, spot checks of suspended ceilings to check that the requirements for clean dry building have been complied with will probably be expected.

This is in order to have made some effort to ensure that construction dust is not sucked into the air conditioner and/ or in other ways creates post-takeover challenges.

By the way, the question of what “should have” discovered to be a situational and concrete assessment.

Since the takeover protocol is central and all deficiencies must be recorded in it, cf. NS 8417 paragraph 42.2.1, last paragraph, one should also consider attaching to the protocol a brief description of how the takeover procedure was carried out.

The general advice is anyway that the total/general contractor meets well prepared. In this regard, the total/general contractor is encouraged to have reviewed all test documentation and FDV documentation in advance, conducted inspections with its subcontractors and preferably have ensured that these have been corrected/completed well in advance of the takeover transaction with the builder.

To the extent that deficiencies are recorded in the Takeover Protocol, the Total/General Contractor should indicate which subcontractor is considered responsible for the individual deficiency.

4.3 Subsequent complaints

Very often errors and deficiencies are discovered in the time after the takeover, and most are usually discovered within the first year after the contract object was taken over.

One likes to call this type of defect “hidden” flaws and defects.

The visible ones were preferably advertised on the takeover.

For such hidden defects and defects that are discovered after the takeover, the rule is that one must advertise “within a reasonable time” after that man “have or should have discovered” the shortage.

Although the absolute deadline for complaints is five years from the takeover, of course, one cannot wait that long to advertise. You have to advertise within “reasonable time”, and if you don't make that loss claim.

Between professional parties involves “reasonable time” You can let it go a few days or even a couple of weeks before you advertise. At least if the defect is of such a nature that it does not develop or inflict damage on other parts of the subject of the contract. It shouldn't take much longer than a couple of weeks.

In the case of a relationship that does not deteriorate and/ or does not entail any risk of consequential damage waiting to advertise, it is easier to accept that some time has passed, than where the lapse of time caused an aggravation of the deficiency.

In consumer affairs, the requirement is not “within a reasonable time” as strict as it is between professionals. In case law, there are examples that it may have been several months from the time a defect was discovered and until the consumer made a complaint.

This, by the way, is something that should be considered when designing special contract terms. A complaint from a consumer usually goes to the builder first. Then this is forwarded to the main or general contractor who then has to advertise to his subcontractor. It's boring if one of the parties (the middle one?) lose their rights downwards because one has not secured himself contractually.

Finally, mention is made of the rule that a new claim period of five years runs on all parts of the subject matter of the contract which have been rectified, but limited to one year from the expiry of the ordinary five-year period, cf. NS 8417 paragraph 42.2.2, second paragraph, NS 8415 paragraph 36.7, third paragraph and NS 8416 paragraph 27.6, third paragraph.

The consequence, in other words, is that the absolute maximum period for complaints is six years.

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 subcontractor.

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 8417 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. There is no equivalent provision in NS 8415 or NS 8416, but it has no legal significance.

The provision is made for information only to the parties.

The statute of limitations applies universally, and as mentioned above, we have written a separate article about the rules of complaint and the rules of the statute of limitations.

‍

Tilbake

Deficiencies and complaints

Kortversjonen

Lytt til artikkelen

1. Introduction

Building defects and defects are one of the major challenges within the construction industry, and what has received the most attention from the legislature in recent decades. It was the scale of building defects that justified the authorities' introduction of the liability law system in the Planning and Buildings Act in the late 1990s, and which was subsequently followed up with the introduction of independent scrutiny about 15 years later.

It is on the takeover itself that the final assessment of the subcontractor's works is made. Only at this time the total/general contractor has the right to take over the contract object, and then it should be free of defects and defects. Until the takeover, the starting point is that the subcontractor has full control over his own work. One consequence is that the subcontractor must accept that his work will be subject to a thorough evaluation as part of the takeover transaction.

In the standard contracts there are many provisions regulating defects and the rights and obligations of the parties in this regard. This is what is the topic of this article.

First, however, it may be appropriate to recall certain provisions of relatively central importance for the interaction of the parties leading up to the takeover.

Firstly, we have the provision that the subcontractor cannot claim that the works have been carried out under the supervision of the general or general contractor respectively, cf. NS 8417 paragraphs 20.2 and 20.3, NS 8415 paragraph 14.1 and NS 8416 paragraph 14.

Secondly, we have the provision on the obligation of the subcontractor to correct conditions during the construction period in which the works have been carried out in violation of the contract or the works have suffered a damage, cf. NS 8417 paragraph 20.5 and NS 8415 paragraph 11.2.

Thirdly, we have the provisions concerning the termination of the construction case, which deal, among other things, with the requirements for testing, adjustment, etc., as well as the submission of test documentation within the agreed deadline, cf. NS 8417 paragraph 36.1 and NS 8415 paragraph 32.2.

Fourth, we refer to the provision on notice of takeover business, cf. NS 8417 paragraph 36.3, which assumes that the subcontractor has carried out a separate inspection, written lists of deficiencies and unfinished works, and transmitted the lists to the total/general contractor as part of the notice.

Fifth, we refer to NS 8417 paragraph 37.1, where it is stated that the subcontractor must submit the list from his own final inspection. It shall state what has been rectified and/ or completed and what has not been remedied/completed.

2. Overview of the rules

The rules can be found in NS 8417 paragraph 42, NS 8415 paragraph 36 and NS 8416 paragraph 27.

3. What is a deficiency?

The standard contracts' provision for “shortage” is quite short.

There is a deficiency if the subject of the contract “in the case of the takeover does not meet the requirements of paragraph 14, and this is due to circumstances” the subcontractor is responsible for, cf. NS 8417 paragraph 42.1.

The corresponding provisions of NS 8415 paragraph 36.1 and NS 8416 paragraph 27.1 contain in fact the same rule specifying that the works shall be “in the condition the general contractor is entitled to under the contract”.

This means that it is the agreement with all its annexes that forms the starting point for the total/general contractor's assessment of the subject matter of the contract, cf. NS 8417 paragraph 14.1, NS 8415 paragraph 11.1 and NS 8416 paragraph 11.

In the total subcontracting, the works shall also be assessed on the basis of the provisions of 14.2 (unspecified parts), paragraph 14.3 (the purpose of the builder), paragraph 14.4 (laws, regulations and public decisions) and paragraph 14.5 (general norms).

When assessing the works of a total subcontractor (NS 8417), this assessment can be far more detailed or comprehensive than would be the case in subcontracting (NS 8415 and NS 8416).

In subcontracting, it is the main contractor who has the design and functional risk. Thus, it is also essential to assess whether the execution matches the design.

In total subcontracting, the total subcontractor has the responsibility and risk that the functional requirements are met,

This assessment is more complex, and for several reasons.

First, it follows from NS 8417, paragraph 14.6, that the general subcontractor has relatively great freedom of choice as to how functional requirements are to be fulfilled as long as he remains within the agreed limits.

Secondly, it follows from NS 8417 paragraph 14.4 that, inter alia, laws and regulations must be complied with. The central regulation is the Technical Regulation (TEK 17) and this contains mostly functional requirements. The guide to technical regulation indicates preaccepted solutions. If the supervisor is complied with, the functional requirements of the regulations will be met. Therefore, if no more stringent requirements than those of TEK 17 have been agreed, cf. NS 8417 paragraph 14.1, the works will only be measured against the requirements of TEK 17 and its supervisor.

In this case, a challenge may arise if the total subcontractor has chosen to resolve functional requirements in TEK 17 in ways other than those specified in the supervisor. It follows from TEK 17 § 2-2 (2) letter b and paragraph 3 that the total subcontractor must be able to document - through an analysis - that the selected solution satisfies the functional requirements of the regulation.

Thirdly, the selected solution must satisfy the purpose of the builder, cf. NS 8407 paragraph 14.3. With reference to the functional requirements of TEK 17, it cannot be ruled out that these are more stringent, in which case it may not be sufficient to prove by analysis that the selected solution satisfies TEK 17 even if the supervisor's preaccepted solutions have not been used.

Fourthly, the current standards for how technical facilities are to be designed, built and not least tested are quite detailed, cf. NS 8417 paragraph 14.5 (General norms).

Consequently, the work to qualitatively ensure that the technical facilities meet agreed requirements can be relatively extensive and complex.

In addition, there is the more traditional control of execution that applies to both subcontracting and total subcontracting. We then refer to conditions such as agreed tolerance classes (solder deviations, flatness, bends, dents etc.), surface finish, whether the right materials have been used, whether the works are of good workmanship, etc.

In sum, this means that the takeover business could be time-consuming, reasonably complex and necessitate the use of heavy, expert assistance.

However, we do not often see that these types of assessments and checks are carried out by the main/general contractor or his assistants.

Since the general rule is that a joint takeover business is held for all involved when the general contractor is to hand over to the builder, cf. NS 8417 paragraph 36.1, it is normally the builder and his assistants who control the works of the individual total subcontractors.

Similarly normally also applies in subcontracting, see NS 8415 paragraph 32.1 and NS 8416 paragraph 24.1.

If the total/general contractor disagrees with the builder's complaints about the subcontractor's works, he will often be able to dispute the builder's complaints, but still pass on the complaints to his subcontractors.

4. Complaints

4.1 Introduction

We distinguish between two types of complaint deadline, namely the relative and the absolute complaint deadline.

If you are to retain your right of complaint, both types of complaint deadlines must be respected.

In addition, the claim must not be obsolete.

We have written about the relationship between advertising and limitation periods in a separate article; read more here.

The relative time limit for complaints means that the person who wants to make a complaint (general or general contractor) must report the defect relatively quickly to the responsible person (subcontractor), and at the same time state that he is held responsible for the defect.

If you do not react quickly enough, thereby exceeding the relative time limit for complaints, you risk losing your claim for, for example, rectification.

The reason for the rule is that the person in charge should be given the opportunity to safeguard their interests.

It may be, for example, that the conditions on the spot show that the alleged defect is not a defect in the person's work, but damage caused by a third party.

Alternatively, unnecessary waste of time may cause the defect to develop and become more extensive, possibly resulting in consequential damage that could have been prevented with a previous complaint.

The fact that the injured party may live with a deficiency is therefore not central to the subjective complaint deadline. The whole purpose is for the responsible party to be given the opportunity to conduct their investigations, make their assessments and then take remedial and/or remedial action as quickly as necessary.

With the exception of the provision in each of the standard contracts which deals with the absolute deadline for complaints, it is the relative complaint deadlines that are central.

The absolute deadline for complaints is about how long the person responsible should have a potential defect liability hanging over them. It follows from the respective standard contracts that this deadline is five years counted from the takeover.

4.2 Complaints in case of takeover

It follows from the provisions of the standard contracts on complaints that the takeover business is very central.

In NS 8417, paragraph 42.2.1, it is stated that the general contractor “loses its right” to make claims of deficiency if you do not “at the latest at the closing of the takeover business” Advertise deficiencies “he has or should have discovered” on the takeover business.

Similar provisions apply to the execution centres, see NS 8415 paragraph 36.6 and NS 8416 paragraph 27.5.

The fact that the standards use the term “should have” shows that a due diligence requirement is imposed on the total or general contractor.

In other words, it is not enough to advertise the conditions that one sees as lacking. One risks losing one's claims if one overlooks something one “should have” discovered. This indicates that you are thorough in your control of the contract work.

Above, we briefly discussed how takeover deals are usually conducted, namely in that the general contractor or general contractor may tend to leave most of the review to the builder and his advisors.

Well, it is conceivable that what a builder “should have” discovered on a takeover business does not necessarily include the same, or as much, as that of a total or general contractor “should have” detected by deficiencies in the works of a subcontractor.

This mentioned since there is a subjective assessment that must be made of what the individual “should have” discovered.

Another thing is that no one is obliged to tear up constructions to uncover whether, perhaps, there may be hidden flaws or shortcomings.

However, spot checks of suspended ceilings to check that the requirements for clean dry building have been complied with will probably be expected.

This is in order to have made some effort to ensure that construction dust is not sucked into the air conditioner and/ or in other ways creates post-takeover challenges.

By the way, the question of what “should have” discovered to be a situational and concrete assessment.

Since the takeover protocol is central and all deficiencies must be recorded in it, cf. NS 8417 paragraph 42.2.1, last paragraph, one should also consider attaching to the protocol a brief description of how the takeover procedure was carried out.

The general advice is anyway that the total/general contractor meets well prepared. In this regard, the total/general contractor is encouraged to have reviewed all test documentation and FDV documentation in advance, conducted inspections with its subcontractors and preferably have ensured that these have been corrected/completed well in advance of the takeover transaction with the builder.

To the extent that deficiencies are recorded in the Takeover Protocol, the Total/General Contractor should indicate which subcontractor is considered responsible for the individual deficiency.

4.3 Subsequent complaints

Very often errors and deficiencies are discovered in the time after the takeover, and most are usually discovered within the first year after the contract object was taken over.

One likes to call this type of defect “hidden” flaws and defects.

The visible ones were preferably advertised on the takeover.

For such hidden defects and defects that are discovered after the takeover, the rule is that one must advertise “within a reasonable time” after that man “have or should have discovered” the shortage.

Although the absolute deadline for complaints is five years from the takeover, of course, one cannot wait that long to advertise. You have to advertise within “reasonable time”, and if you don't make that loss claim.

Between professional parties involves “reasonable time” You can let it go a few days or even a couple of weeks before you advertise. At least if the defect is of such a nature that it does not develop or inflict damage on other parts of the subject of the contract. It shouldn't take much longer than a couple of weeks.

In the case of a relationship that does not deteriorate and/ or does not entail any risk of consequential damage waiting to advertise, it is easier to accept that some time has passed, than where the lapse of time caused an aggravation of the deficiency.

In consumer affairs, the requirement is not “within a reasonable time” as strict as it is between professionals. In case law, there are examples that it may have been several months from the time a defect was discovered and until the consumer made a complaint.

This, by the way, is something that should be considered when designing special contract terms. A complaint from a consumer usually goes to the builder first. Then this is forwarded to the main or general contractor who then has to advertise to his subcontractor. It's boring if one of the parties (the middle one?) lose their rights downwards because one has not secured himself contractually.

Finally, mention is made of the rule that a new claim period of five years runs on all parts of the subject matter of the contract which have been rectified, but limited to one year from the expiry of the ordinary five-year period, cf. NS 8417 paragraph 42.2.2, second paragraph, NS 8415 paragraph 36.7, third paragraph and NS 8416 paragraph 27.6, third paragraph.

The consequence, in other words, is that the absolute maximum period for complaints is six years.

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 subcontractor.

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 8417 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. There is no equivalent provision in NS 8415 or NS 8416, but it has no legal significance.

The provision is made for information only to the parties.

The statute of limitations applies universally, and as mentioned above, we have written a separate article about the rules of complaint and the rules of the statute of limitations.

‍

Deficiencies and complaints

Kortversjonen

Lytt til artikkelen

1. Introduction

Building defects and defects are one of the major challenges within the construction industry, and what has received the most attention from the legislature in recent decades. It was the scale of building defects that justified the authorities' introduction of the liability law system in the Planning and Buildings Act in the late 1990s, and which was subsequently followed up with the introduction of independent scrutiny about 15 years later.

It is on the takeover itself that the final assessment of the subcontractor's works is made. Only at this time the total/general contractor has the right to take over the contract object, and then it should be free of defects and defects. Until the takeover, the starting point is that the subcontractor has full control over his own work. One consequence is that the subcontractor must accept that his work will be subject to a thorough evaluation as part of the takeover transaction.

In the standard contracts there are many provisions regulating defects and the rights and obligations of the parties in this regard. This is what is the topic of this article.

First, however, it may be appropriate to recall certain provisions of relatively central importance for the interaction of the parties leading up to the takeover.

Firstly, we have the provision that the subcontractor cannot claim that the works have been carried out under the supervision of the general or general contractor respectively, cf. NS 8417 paragraphs 20.2 and 20.3, NS 8415 paragraph 14.1 and NS 8416 paragraph 14.

Secondly, we have the provision on the obligation of the subcontractor to correct conditions during the construction period in which the works have been carried out in violation of the contract or the works have suffered a damage, cf. NS 8417 paragraph 20.5 and NS 8415 paragraph 11.2.

Thirdly, we have the provisions concerning the termination of the construction case, which deal, among other things, with the requirements for testing, adjustment, etc., as well as the submission of test documentation within the agreed deadline, cf. NS 8417 paragraph 36.1 and NS 8415 paragraph 32.2.

Fourth, we refer to the provision on notice of takeover business, cf. NS 8417 paragraph 36.3, which assumes that the subcontractor has carried out a separate inspection, written lists of deficiencies and unfinished works, and transmitted the lists to the total/general contractor as part of the notice.

Fifth, we refer to NS 8417 paragraph 37.1, where it is stated that the subcontractor must submit the list from his own final inspection. It shall state what has been rectified and/ or completed and what has not been remedied/completed.

2. Overview of the rules

The rules can be found in NS 8417 paragraph 42, NS 8415 paragraph 36 and NS 8416 paragraph 27.

3. What is a deficiency?

The standard contracts' provision for “shortage” is quite short.

There is a deficiency if the subject of the contract “in the case of the takeover does not meet the requirements of paragraph 14, and this is due to circumstances” the subcontractor is responsible for, cf. NS 8417 paragraph 42.1.

The corresponding provisions of NS 8415 paragraph 36.1 and NS 8416 paragraph 27.1 contain in fact the same rule specifying that the works shall be “in the condition the general contractor is entitled to under the contract”.

This means that it is the agreement with all its annexes that forms the starting point for the total/general contractor's assessment of the subject matter of the contract, cf. NS 8417 paragraph 14.1, NS 8415 paragraph 11.1 and NS 8416 paragraph 11.

In the total subcontracting, the works shall also be assessed on the basis of the provisions of 14.2 (unspecified parts), paragraph 14.3 (the purpose of the builder), paragraph 14.4 (laws, regulations and public decisions) and paragraph 14.5 (general norms).

When assessing the works of a total subcontractor (NS 8417), this assessment can be far more detailed or comprehensive than would be the case in subcontracting (NS 8415 and NS 8416).

In subcontracting, it is the main contractor who has the design and functional risk. Thus, it is also essential to assess whether the execution matches the design.

In total subcontracting, the total subcontractor has the responsibility and risk that the functional requirements are met,

This assessment is more complex, and for several reasons.

First, it follows from NS 8417, paragraph 14.6, that the general subcontractor has relatively great freedom of choice as to how functional requirements are to be fulfilled as long as he remains within the agreed limits.

Secondly, it follows from NS 8417 paragraph 14.4 that, inter alia, laws and regulations must be complied with. The central regulation is the Technical Regulation (TEK 17) and this contains mostly functional requirements. The guide to technical regulation indicates preaccepted solutions. If the supervisor is complied with, the functional requirements of the regulations will be met. Therefore, if no more stringent requirements than those of TEK 17 have been agreed, cf. NS 8417 paragraph 14.1, the works will only be measured against the requirements of TEK 17 and its supervisor.

In this case, a challenge may arise if the total subcontractor has chosen to resolve functional requirements in TEK 17 in ways other than those specified in the supervisor. It follows from TEK 17 § 2-2 (2) letter b and paragraph 3 that the total subcontractor must be able to document - through an analysis - that the selected solution satisfies the functional requirements of the regulation.

Thirdly, the selected solution must satisfy the purpose of the builder, cf. NS 8407 paragraph 14.3. With reference to the functional requirements of TEK 17, it cannot be ruled out that these are more stringent, in which case it may not be sufficient to prove by analysis that the selected solution satisfies TEK 17 even if the supervisor's preaccepted solutions have not been used.

Fourthly, the current standards for how technical facilities are to be designed, built and not least tested are quite detailed, cf. NS 8417 paragraph 14.5 (General norms).

Consequently, the work to qualitatively ensure that the technical facilities meet agreed requirements can be relatively extensive and complex.

In addition, there is the more traditional control of execution that applies to both subcontracting and total subcontracting. We then refer to conditions such as agreed tolerance classes (solder deviations, flatness, bends, dents etc.), surface finish, whether the right materials have been used, whether the works are of good workmanship, etc.

In sum, this means that the takeover business could be time-consuming, reasonably complex and necessitate the use of heavy, expert assistance.

However, we do not often see that these types of assessments and checks are carried out by the main/general contractor or his assistants.

Since the general rule is that a joint takeover business is held for all involved when the general contractor is to hand over to the builder, cf. NS 8417 paragraph 36.1, it is normally the builder and his assistants who control the works of the individual total subcontractors.

Similarly normally also applies in subcontracting, see NS 8415 paragraph 32.1 and NS 8416 paragraph 24.1.

If the total/general contractor disagrees with the builder's complaints about the subcontractor's works, he will often be able to dispute the builder's complaints, but still pass on the complaints to his subcontractors.

4. Complaints

4.1 Introduction

We distinguish between two types of complaint deadline, namely the relative and the absolute complaint deadline.

If you are to retain your right of complaint, both types of complaint deadlines must be respected.

In addition, the claim must not be obsolete.

We have written about the relationship between advertising and limitation periods in a separate article; read more here.

The relative time limit for complaints means that the person who wants to make a complaint (general or general contractor) must report the defect relatively quickly to the responsible person (subcontractor), and at the same time state that he is held responsible for the defect.

If you do not react quickly enough, thereby exceeding the relative time limit for complaints, you risk losing your claim for, for example, rectification.

The reason for the rule is that the person in charge should be given the opportunity to safeguard their interests.

It may be, for example, that the conditions on the spot show that the alleged defect is not a defect in the person's work, but damage caused by a third party.

Alternatively, unnecessary waste of time may cause the defect to develop and become more extensive, possibly resulting in consequential damage that could have been prevented with a previous complaint.

The fact that the injured party may live with a deficiency is therefore not central to the subjective complaint deadline. The whole purpose is for the responsible party to be given the opportunity to conduct their investigations, make their assessments and then take remedial and/or remedial action as quickly as necessary.

With the exception of the provision in each of the standard contracts which deals with the absolute deadline for complaints, it is the relative complaint deadlines that are central.

The absolute deadline for complaints is about how long the person responsible should have a potential defect liability hanging over them. It follows from the respective standard contracts that this deadline is five years counted from the takeover.

4.2 Complaints in case of takeover

It follows from the provisions of the standard contracts on complaints that the takeover business is very central.

In NS 8417, paragraph 42.2.1, it is stated that the general contractor “loses its right” to make claims of deficiency if you do not “at the latest at the closing of the takeover business” Advertise deficiencies “he has or should have discovered” on the takeover business.

Similar provisions apply to the execution centres, see NS 8415 paragraph 36.6 and NS 8416 paragraph 27.5.

The fact that the standards use the term “should have” shows that a due diligence requirement is imposed on the total or general contractor.

In other words, it is not enough to advertise the conditions that one sees as lacking. One risks losing one's claims if one overlooks something one “should have” discovered. This indicates that you are thorough in your control of the contract work.

Above, we briefly discussed how takeover deals are usually conducted, namely in that the general contractor or general contractor may tend to leave most of the review to the builder and his advisors.

Well, it is conceivable that what a builder “should have” discovered on a takeover business does not necessarily include the same, or as much, as that of a total or general contractor “should have” detected by deficiencies in the works of a subcontractor.

This mentioned since there is a subjective assessment that must be made of what the individual “should have” discovered.

Another thing is that no one is obliged to tear up constructions to uncover whether, perhaps, there may be hidden flaws or shortcomings.

However, spot checks of suspended ceilings to check that the requirements for clean dry building have been complied with will probably be expected.

This is in order to have made some effort to ensure that construction dust is not sucked into the air conditioner and/ or in other ways creates post-takeover challenges.

By the way, the question of what “should have” discovered to be a situational and concrete assessment.

Since the takeover protocol is central and all deficiencies must be recorded in it, cf. NS 8417 paragraph 42.2.1, last paragraph, one should also consider attaching to the protocol a brief description of how the takeover procedure was carried out.

The general advice is anyway that the total/general contractor meets well prepared. In this regard, the total/general contractor is encouraged to have reviewed all test documentation and FDV documentation in advance, conducted inspections with its subcontractors and preferably have ensured that these have been corrected/completed well in advance of the takeover transaction with the builder.

To the extent that deficiencies are recorded in the Takeover Protocol, the Total/General Contractor should indicate which subcontractor is considered responsible for the individual deficiency.

4.3 Subsequent complaints

Very often errors and deficiencies are discovered in the time after the takeover, and most are usually discovered within the first year after the contract object was taken over.

One likes to call this type of defect “hidden” flaws and defects.

The visible ones were preferably advertised on the takeover.

For such hidden defects and defects that are discovered after the takeover, the rule is that one must advertise “within a reasonable time” after that man “have or should have discovered” the shortage.

Although the absolute deadline for complaints is five years from the takeover, of course, one cannot wait that long to advertise. You have to advertise within “reasonable time”, and if you don't make that loss claim.

Between professional parties involves “reasonable time” You can let it go a few days or even a couple of weeks before you advertise. At least if the defect is of such a nature that it does not develop or inflict damage on other parts of the subject of the contract. It shouldn't take much longer than a couple of weeks.

In the case of a relationship that does not deteriorate and/ or does not entail any risk of consequential damage waiting to advertise, it is easier to accept that some time has passed, than where the lapse of time caused an aggravation of the deficiency.

In consumer affairs, the requirement is not “within a reasonable time” as strict as it is between professionals. In case law, there are examples that it may have been several months from the time a defect was discovered and until the consumer made a complaint.

This, by the way, is something that should be considered when designing special contract terms. A complaint from a consumer usually goes to the builder first. Then this is forwarded to the main or general contractor who then has to advertise to his subcontractor. It's boring if one of the parties (the middle one?) lose their rights downwards because one has not secured himself contractually.

Finally, mention is made of the rule that a new claim period of five years runs on all parts of the subject matter of the contract which have been rectified, but limited to one year from the expiry of the ordinary five-year period, cf. NS 8417 paragraph 42.2.2, second paragraph, NS 8415 paragraph 36.7, third paragraph and NS 8416 paragraph 27.6, third paragraph.

The consequence, in other words, is that the absolute maximum period for complaints is six years.

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 subcontractor.

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 8417 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. There is no equivalent provision in NS 8415 or NS 8416, but it has no legal significance.

The provision is made for information only to the parties.

The statute of limitations applies universally, and as mentioned above, we have written a separate article about the rules of complaint and the rules of the statute of limitations.

‍

Deficiencies and complaints

Kortversjonen

1. Introduction

Building defects and defects are one of the major challenges within the construction industry, and what has received the most attention from the legislature in recent decades. It was the scale of building defects that justified the authorities' introduction of the liability law system in the Planning and Buildings Act in the late 1990s, and which was subsequently followed up with the introduction of independent scrutiny about 15 years later.

It is on the takeover itself that the final assessment of the subcontractor's works is made. Only at this time the total/general contractor has the right to take over the contract object, and then it should be free of defects and defects. Until the takeover, the starting point is that the subcontractor has full control over his own work. One consequence is that the subcontractor must accept that his work will be subject to a thorough evaluation as part of the takeover transaction.

In the standard contracts there are many provisions regulating defects and the rights and obligations of the parties in this regard. This is what is the topic of this article.

First, however, it may be appropriate to recall certain provisions of relatively central importance for the interaction of the parties leading up to the takeover.

Firstly, we have the provision that the subcontractor cannot claim that the works have been carried out under the supervision of the general or general contractor respectively, cf. NS 8417 paragraphs 20.2 and 20.3, NS 8415 paragraph 14.1 and NS 8416 paragraph 14.

Secondly, we have the provision on the obligation of the subcontractor to correct conditions during the construction period in which the works have been carried out in violation of the contract or the works have suffered a damage, cf. NS 8417 paragraph 20.5 and NS 8415 paragraph 11.2.

Thirdly, we have the provisions concerning the termination of the construction case, which deal, among other things, with the requirements for testing, adjustment, etc., as well as the submission of test documentation within the agreed deadline, cf. NS 8417 paragraph 36.1 and NS 8415 paragraph 32.2.

Fourth, we refer to the provision on notice of takeover business, cf. NS 8417 paragraph 36.3, which assumes that the subcontractor has carried out a separate inspection, written lists of deficiencies and unfinished works, and transmitted the lists to the total/general contractor as part of the notice.

Fifth, we refer to NS 8417 paragraph 37.1, where it is stated that the subcontractor must submit the list from his own final inspection. It shall state what has been rectified and/ or completed and what has not been remedied/completed.

2. Overview of the rules

The rules can be found in NS 8417 paragraph 42, NS 8415 paragraph 36 and NS 8416 paragraph 27.

3. What is a deficiency?

The standard contracts' provision for “shortage” is quite short.

There is a deficiency if the subject of the contract “in the case of the takeover does not meet the requirements of paragraph 14, and this is due to circumstances” the subcontractor is responsible for, cf. NS 8417 paragraph 42.1.

The corresponding provisions of NS 8415 paragraph 36.1 and NS 8416 paragraph 27.1 contain in fact the same rule specifying that the works shall be “in the condition the general contractor is entitled to under the contract”.

This means that it is the agreement with all its annexes that forms the starting point for the total/general contractor's assessment of the subject matter of the contract, cf. NS 8417 paragraph 14.1, NS 8415 paragraph 11.1 and NS 8416 paragraph 11.

In the total subcontracting, the works shall also be assessed on the basis of the provisions of 14.2 (unspecified parts), paragraph 14.3 (the purpose of the builder), paragraph 14.4 (laws, regulations and public decisions) and paragraph 14.5 (general norms).

When assessing the works of a total subcontractor (NS 8417), this assessment can be far more detailed or comprehensive than would be the case in subcontracting (NS 8415 and NS 8416).

In subcontracting, it is the main contractor who has the design and functional risk. Thus, it is also essential to assess whether the execution matches the design.

In total subcontracting, the total subcontractor has the responsibility and risk that the functional requirements are met,

This assessment is more complex, and for several reasons.

First, it follows from NS 8417, paragraph 14.6, that the general subcontractor has relatively great freedom of choice as to how functional requirements are to be fulfilled as long as he remains within the agreed limits.

Secondly, it follows from NS 8417 paragraph 14.4 that, inter alia, laws and regulations must be complied with. The central regulation is the Technical Regulation (TEK 17) and this contains mostly functional requirements. The guide to technical regulation indicates preaccepted solutions. If the supervisor is complied with, the functional requirements of the regulations will be met. Therefore, if no more stringent requirements than those of TEK 17 have been agreed, cf. NS 8417 paragraph 14.1, the works will only be measured against the requirements of TEK 17 and its supervisor.

In this case, a challenge may arise if the total subcontractor has chosen to resolve functional requirements in TEK 17 in ways other than those specified in the supervisor. It follows from TEK 17 § 2-2 (2) letter b and paragraph 3 that the total subcontractor must be able to document - through an analysis - that the selected solution satisfies the functional requirements of the regulation.

Thirdly, the selected solution must satisfy the purpose of the builder, cf. NS 8407 paragraph 14.3. With reference to the functional requirements of TEK 17, it cannot be ruled out that these are more stringent, in which case it may not be sufficient to prove by analysis that the selected solution satisfies TEK 17 even if the supervisor's preaccepted solutions have not been used.

Fourthly, the current standards for how technical facilities are to be designed, built and not least tested are quite detailed, cf. NS 8417 paragraph 14.5 (General norms).

Consequently, the work to qualitatively ensure that the technical facilities meet agreed requirements can be relatively extensive and complex.

In addition, there is the more traditional control of execution that applies to both subcontracting and total subcontracting. We then refer to conditions such as agreed tolerance classes (solder deviations, flatness, bends, dents etc.), surface finish, whether the right materials have been used, whether the works are of good workmanship, etc.

In sum, this means that the takeover business could be time-consuming, reasonably complex and necessitate the use of heavy, expert assistance.

However, we do not often see that these types of assessments and checks are carried out by the main/general contractor or his assistants.

Since the general rule is that a joint takeover business is held for all involved when the general contractor is to hand over to the builder, cf. NS 8417 paragraph 36.1, it is normally the builder and his assistants who control the works of the individual total subcontractors.

Similarly normally also applies in subcontracting, see NS 8415 paragraph 32.1 and NS 8416 paragraph 24.1.

If the total/general contractor disagrees with the builder's complaints about the subcontractor's works, he will often be able to dispute the builder's complaints, but still pass on the complaints to his subcontractors.

4. Complaints

4.1 Introduction

We distinguish between two types of complaint deadline, namely the relative and the absolute complaint deadline.

If you are to retain your right of complaint, both types of complaint deadlines must be respected.

In addition, the claim must not be obsolete.

We have written about the relationship between advertising and limitation periods in a separate article; read more here.

The relative time limit for complaints means that the person who wants to make a complaint (general or general contractor) must report the defect relatively quickly to the responsible person (subcontractor), and at the same time state that he is held responsible for the defect.

If you do not react quickly enough, thereby exceeding the relative time limit for complaints, you risk losing your claim for, for example, rectification.

The reason for the rule is that the person in charge should be given the opportunity to safeguard their interests.

It may be, for example, that the conditions on the spot show that the alleged defect is not a defect in the person's work, but damage caused by a third party.

Alternatively, unnecessary waste of time may cause the defect to develop and become more extensive, possibly resulting in consequential damage that could have been prevented with a previous complaint.

The fact that the injured party may live with a deficiency is therefore not central to the subjective complaint deadline. The whole purpose is for the responsible party to be given the opportunity to conduct their investigations, make their assessments and then take remedial and/or remedial action as quickly as necessary.

With the exception of the provision in each of the standard contracts which deals with the absolute deadline for complaints, it is the relative complaint deadlines that are central.

The absolute deadline for complaints is about how long the person responsible should have a potential defect liability hanging over them. It follows from the respective standard contracts that this deadline is five years counted from the takeover.

4.2 Complaints in case of takeover

It follows from the provisions of the standard contracts on complaints that the takeover business is very central.

In NS 8417, paragraph 42.2.1, it is stated that the general contractor “loses its right” to make claims of deficiency if you do not “at the latest at the closing of the takeover business” Advertise deficiencies “he has or should have discovered” on the takeover business.

Similar provisions apply to the execution centres, see NS 8415 paragraph 36.6 and NS 8416 paragraph 27.5.

The fact that the standards use the term “should have” shows that a due diligence requirement is imposed on the total or general contractor.

In other words, it is not enough to advertise the conditions that one sees as lacking. One risks losing one's claims if one overlooks something one “should have” discovered. This indicates that you are thorough in your control of the contract work.

Above, we briefly discussed how takeover deals are usually conducted, namely in that the general contractor or general contractor may tend to leave most of the review to the builder and his advisors.

Well, it is conceivable that what a builder “should have” discovered on a takeover business does not necessarily include the same, or as much, as that of a total or general contractor “should have” detected by deficiencies in the works of a subcontractor.

This mentioned since there is a subjective assessment that must be made of what the individual “should have” discovered.

Another thing is that no one is obliged to tear up constructions to uncover whether, perhaps, there may be hidden flaws or shortcomings.

However, spot checks of suspended ceilings to check that the requirements for clean dry building have been complied with will probably be expected.

This is in order to have made some effort to ensure that construction dust is not sucked into the air conditioner and/ or in other ways creates post-takeover challenges.

By the way, the question of what “should have” discovered to be a situational and concrete assessment.

Since the takeover protocol is central and all deficiencies must be recorded in it, cf. NS 8417 paragraph 42.2.1, last paragraph, one should also consider attaching to the protocol a brief description of how the takeover procedure was carried out.

The general advice is anyway that the total/general contractor meets well prepared. In this regard, the total/general contractor is encouraged to have reviewed all test documentation and FDV documentation in advance, conducted inspections with its subcontractors and preferably have ensured that these have been corrected/completed well in advance of the takeover transaction with the builder.

To the extent that deficiencies are recorded in the Takeover Protocol, the Total/General Contractor should indicate which subcontractor is considered responsible for the individual deficiency.

4.3 Subsequent complaints

Very often errors and deficiencies are discovered in the time after the takeover, and most are usually discovered within the first year after the contract object was taken over.

One likes to call this type of defect “hidden” flaws and defects.

The visible ones were preferably advertised on the takeover.

For such hidden defects and defects that are discovered after the takeover, the rule is that one must advertise “within a reasonable time” after that man “have or should have discovered” the shortage.

Although the absolute deadline for complaints is five years from the takeover, of course, one cannot wait that long to advertise. You have to advertise within “reasonable time”, and if you don't make that loss claim.

Between professional parties involves “reasonable time” You can let it go a few days or even a couple of weeks before you advertise. At least if the defect is of such a nature that it does not develop or inflict damage on other parts of the subject of the contract. It shouldn't take much longer than a couple of weeks.

In the case of a relationship that does not deteriorate and/ or does not entail any risk of consequential damage waiting to advertise, it is easier to accept that some time has passed, than where the lapse of time caused an aggravation of the deficiency.

In consumer affairs, the requirement is not “within a reasonable time” as strict as it is between professionals. In case law, there are examples that it may have been several months from the time a defect was discovered and until the consumer made a complaint.

This, by the way, is something that should be considered when designing special contract terms. A complaint from a consumer usually goes to the builder first. Then this is forwarded to the main or general contractor who then has to advertise to his subcontractor. It's boring if one of the parties (the middle one?) lose their rights downwards because one has not secured himself contractually.

Finally, mention is made of the rule that a new claim period of five years runs on all parts of the subject matter of the contract which have been rectified, but limited to one year from the expiry of the ordinary five-year period, cf. NS 8417 paragraph 42.2.2, second paragraph, NS 8415 paragraph 36.7, third paragraph and NS 8416 paragraph 27.6, third paragraph.

The consequence, in other words, is that the absolute maximum period for complaints is six years.

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 subcontractor.

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 8417 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. There is no equivalent provision in NS 8415 or NS 8416, but it has no legal significance.

The provision is made for information only to the parties.

The statute of limitations applies universally, and as mentioned above, we have written a separate article about the rules of complaint and the rules of the statute of limitations.

‍

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