The dispute between home owner Walter Bigi and Meier painters and decorators (both names changed) has been going on for weeks. Bigi commissioned Meier to carry out painting work worth 10,000 francs. The contract was agreed verbally and the instructions were to paint all the rooms in Bigi’s detached house. Once the work was complete, Bigi inspected it and was not happy. The wood was not properly covered in numerous places on the door frames and baseboards, resulting in additional damage. A number of patches appeared “cloudy” in daylight, Bigi claimed. The situation is particularly annoying for Bigi because his wife is heavily pregnant. The young couple wanted to move back into the freshly painted rooms after a week, but an initial reworking did not deliver the desired results.
Report defects straight away
According to the law, customers have various rights in cases like this – for instance to have the work redone free of charge or be granted a price reduction. Tradespeople are responsible for their work for a period of five years, but visible, obvious defects must be reported straight away, ideally on handover or inspection of the property or construction work. If no inspection takes place or customers fail to complain immediately, they forfeit their rights with regard to these defects.
Hidden defects may be reported at a later date, but they too must be reported immediately after discovery, within a period of ten days. In many cases, however, standard 118 of the Swiss Society of Engineers and Architects (SIA), sometimes called the “tradespeople’s standard,” applies. It states that defects of any kind may be reported within a warranty period of two years and hidden defects within a period of five years. A word of caution, however: SIA standard 118 only applies if it is expressly agreed.
Call in a neutral expert
So tradespeople and construction companies must take responsibility for their work. But in Mr. Bigi’s case, was there really a defect? With painting and renovations in particular, conflicts often revolve around whether building industry rules were complied with or not. The crux of the matter is that usually, only trained specialists can decide which references, information sheets and standards are applicable and whether they were complied with. To resolve their conflict, therefore, Bigi and Meier would have to consult a recognized expert, who should be independent and have the necessary specialist training. Trade associations such as the Swiss Association of Painters and Plasterers (SMGV), the Swiss Homeowners’ Association (HEV) and other organizations can generally help. Another point of contact is the Chamber of Independent Consultants for Building Owners (KUB).
Don’t underestimate the regulations
Many laypeople underestimate the number of rules they have to comply with in construction. On the one hand there are mandatory statutory requirements such as fire protection regulations and energy laws. The required quality standards for windows, façades and roofs are governed by cantonal laws and ordinances, which take account of increased requirements and technical advances. Whereas 20 years ago the best windows had thermal transmittance values (U-values) of 1.3 or 1.4, nowadays products with values of 0.6 are available. Walls and façades of new buildings should have U-values of around 0.2, but in many cases the energy source and many other factors have to be taken into consideration for the detailed energy certificate.
Then there are information sheets from SUVA, the Swiss Accident Insurance Fund, in particular in relation to safety on construction sites. When it comes to defects, the relevant information sheets, requirements and technical standards of the trade associations play a major role. In addition to the aforementioned tradespeople’s standard, the SIA also publishes a wealth of technical standards on such aspects of construction as stairs, soundproofing and earthquake-proofing. Added to this are information sheets and quality standards from a very broad range of trade associations depending on the field in question (i.e. painting, bricklaying, master builders, floor and parquet installation, etc.).
Agree precise contracts
“To prevent disagreements, it’s important to check the circumstances on-site beforehand and draw up contractual agreements that are precise as possible,” says Sascha Fopp, Head of SMGV Legal Services. There are a number of good examples of this in the field of painting in particular. If a house owner would like to have his or her rooms painted pink, even this leaves some room for interpretation. Once large areas of the house have been painted, the finished work may look quite different to what the customer envisioned. To prevent arguments, therefore, the color should be determined according to pre-defined standards and samples should be used to ascertain whether it really is what the customer wants.
Expect high standards
With regard to building industry rules, Peter Gauch, a law professor at the University of Fribourg with many years of experience, believes that tradespeople have to follow these rules, for example widely accepted rules for constructing foundations, in their work. According to Gauch, these rules are regarded as accepted when they are acknowledged by science to be theoretically correct and have proved successful in practice.
Home-builders in Switzerland can expect high quality standards. Regardless of whether you have to call in a painter or a kitchen fitter or are working with an architect, you can invoke building industry rules even if they are not specifically mentioned in the contract. This also applies to Mr. Bigi’s situation.
What is a defect?
What is a defect?
- A defect is when work carried out differs from what was agreed in the contract. For example, both contracting parties determine that a base coat on the walls of a house must be prepared and then two coats of paint must be applied. If the painter only applies one coat and this is clearly insufficient, this is regarded as a defect.
- Work is deemed to be defective if a property is not fit for use, for example if a painter uses a product that is hazardous to health.
- Failure to correctly comply with common technical standards and building industry rules also counts as a defect.