Property Guarantee in Construction

March 30, 2024 Luciano Bertene

Uncovering Builders’ Warranties: Homeowner Rights and Responsibilities

When purchasing a new apartment, many owners become immersed in the excitement of the purchase and may ignore or even forget about the existence of the guarantee offered by the construction company. However, this warranty is a legal right that protects the buyer against construction defects, allowing the buyer to demand that the construction company correct these defects at no additional cost, regardless of whether they are the first owner or not.

Despite the importance of this benefit, it is surprising how few buyers are informed about it during the property purchase process. Furthermore, there are several bureaucratic aspects that demand attention from the beginning of the business. If these details are not observed, the buyer may end up losing the right to the guarantee in court, not to mention confusion with the established deadlines.

This article aims to clarify all these aspects, ensuring that owners are properly informed about their rights and responsibilities in relation to the construction company's warranty.

Initially understand some important points about property guarantee

Warranty Period : Brazilian legislation establishes a warranty period for construction defects, which is generally 5 years for structural problems and 90 days for apparent defects, such as finishing problems.
Builder's Responsibility : During the warranty period, the builder is responsible for correcting any construction defects that compromise the safety, solidity or habitability of the property.
Essential Documentation : To activate the guarantee, it is essential to keep all documentation related to the purchase of the property, including the purchase and sale contract, warranty term, invoices and records of communications with the construction company.
Prior Inspection : Before finalizing the purchase of the property, it is recommended to carry out a thorough inspection to identify any apparent defects or defects, ensuring that they are properly documented and corrected by the construction company.
Communication with the Construction Company : When identifying any problem within the warranty period, the buyer must immediately notify the construction company in writing, requesting correction of the defect.
Deadlines for Correction : After receiving notification about the defect, the construction company has a deadline established by law to carry out the repairs. If this deadline is not met, the buyer may appeal to consumer protection agencies or to the courts.
Mediation and Arbitration : In cases of conflict between the buyer and the construction company, it is possible to resort to mediation or arbitration to resolve the issue more quickly and efficiently than through the traditional judicial system.
Record of Occurrences : It is important to maintain a detailed record of all occurrences related to construction defects, including dates, description of the problem and communications with the construction company, to facilitate any dispute resolution process.

When purchasing a property, be it an apartment, a house or a commercial enterprise, consumers often face a sea of doubts and concerns. Among these concerns, the guarantee offered by construction companies stands out as one of the most relevant aspects, as it represents the security and quality of the investment made. In Brazil, legislation and the Consumer Protection Code (CDC) play a fundamental role in establishing rights and responsibilities for both consumers and construction companies.

These regulations define the parameters of the guarantees and the procedures to be followed in cases of apparent defects and hidden defects, ensuring a fair and balanced relationship between the parties involved.

For the end consumer, it is important to check some important points before closing the deal

Market research: Carry out a thorough research of the real estate market to compare prices, locations and characteristics of available properties, ensuring an informed choice suited to the buyer's needs.
Documentation check: Carefully analyze all documentation related to the property, including deeds, negative certificates, registrations in the property registry and contracts, to ensure the regularity and legality of the transaction.
Property inspection: Carry out a detailed inspection of the property to identify possible apparent defects, such as cracks, infiltrations, structural problems or construction defects, which could compromise the safety and habitability of the environment.
Payment terms: Evaluate the payment terms offered by the construction company or the seller, including forms of financing, delivery times and possible value adjustments, ensuring that they are compatible with the buyer's financial possibilities.
Guarantees offered: Check the guarantees offered by the construction company or the seller in relation to the quality and durability of the construction, as well as the procedures for activating these guarantees if necessary, ensuring the buyer's protection against possible future problems.
Infrastructure and services: Evaluate the infrastructure surrounding the property, such as access to public transport, proximity to essential services (schools, hospitals, supermarkets) and availability of leisure and social areas, aiming to ensure comfort and convenience for future residents.
Construction company's reputation: Researching the construction company's reputation is important to avoid future problems.

Legal Protection and Contractual Responsibilities: Guarantees in Property Acquisition

When purchasing a property, whether for their own residence or investment, consumers are often faced with a series of concerns and questions related to the guarantee offered by the construction company. After all, ensuring the quality, safety and compliance of the property with expectations is essential to protect the investment made.

In the context of Brazilian legislation and the Consumer Protection Code (CDC), rights and responsibilities are established for both consumers and construction companies, outlining the legal and contractual guarantees and the procedures to be followed in cases of apparent and hidden defects.

We detail below how consumer protection works in the acquisition of properties and projects, highlighting the legal and contractually established guarantees, as well as the main aspects to be considered by consumers during this process.

Automatic Legal Guarantee: The legal guarantee, as established by article 26 of the CDC, is automatically granted to consumers when purchasing a property. This warranty is independent of any contractual provision and aims to ensure that the purchased product complies with the advertised characteristics and applicable technical standards.
Conformity with Advertised Characteristics: The legal guarantee guarantees that the property complies with the characteristics announced by the construction company or the seller, including size specifications, quality of materials used in construction and other aspects described in the purchase and sale contract.
Compliance with Technical Standards: Furthermore, the legal guarantee ensures that the property complies with current technical standards, guaranteeing its safety, durability and adequate use by consumers.
Proper Functioning: The legal guarantee also covers the correct functioning of the property, including electrical, hydraulic, structural systems and other components, ensuring that the property is delivered in satisfactory conditions for residential or commercial use.
Term of Validity: The term of validity of the legal guarantee is established by law and may vary according to the type of defect or defect presented by the property. In cases of apparent defects, the deadline is 90 days from delivery of the property, while for hidden defects, the period can be up to 5 years, as provided for by the CDC.
Construction Company's Responsibility: During the period of validity of the legal guarantee, the construction company is responsible for repairing or replacing defective components of the property, without any additional burden for the consumer, guaranteeing their satisfaction and protecting their rights as a purchaser.

The contractual guarantee refers to the terms established in the property purchase and sale contract, which may go beyond the mandatory guarantees established by legislation, providing an additional layer of protection for consumers.

While the legal guarantee is automatic and independent of contractual provisions, the contractual guarantee is specifically included in the agreement between the buyer and the construction company. This guarantee can cover several aspects, such as the quality of the materials used in construction, the functioning of equipment and installations, the durability of the structure, among others.

Construction companies often offer contractually extended warranties as a strategy to attract consumers and demonstrate their commitment to the quality of the project. These additional guarantees may include coverage for manufacturing defects, structural flaws, hidden defects and other problems that may arise after delivery of the property.

By extending warranties beyond what is required by law, construction companies seek to provide a positive customer experience and build a trustworthy reputation in the real estate market. However, it is essential that consumers understand the terms and conditions of the contractual guarantee before signing the property purchase contract to ensure they are fully informed about their rights and responsibilities.

The Importance of Identifying and Distinguishing Property Addictions

When it comes to purchasing a property, whether for your own residence or investment, it is crucial to understand and differentiate the defects that may arise during the construction process or after delivery. The distinction between apparent defects and hidden defects plays a fundamental role in protecting consumer rights and ensuring the quality and safety of properties. Let's explore this distinction in more depth and understand how it affects homeowners and developers throughout the property's lifecycle.

Definition of Apparent Defects : These are defects or problems that can be readily noticed through a simple visual inspection of the property, without the need for specialized technical knowledge.
Examples of Apparent Deficiencies : Visible cracks in the walls, fissures in the floor, paint flaws, malfunctioning doors or windows, among others.
Moment of Identification : Apparent defects can be detected during the initial inspection of the property or during the construction itself, before final delivery.
Construction Company's Obligations : The construction company is responsible for correcting and repairing apparent defects before handing over the property to the buyer.
Impact on Quality and Safety : Apparent defects can significantly affect the aesthetics, functionality and safety of the property, requiring immediate intervention.
Definition of Hidden Defects : These are defects that are not easily noticeable during a common visual inspection and that appear after a period of use of the property.
Examples of Hidden Deficiencies : Infiltrations, waterproofing problems, structural failures, internal leaks, among others.
Moment of Identification : Hidden defects generally appear after the property is handed over and can manifest themselves over time.
Identification Complexity : Hidden addictions often require a more detailed analysis by specialized professionals to be detected.
Impact on Homeowners : Hidden defects can cause significant inconvenience to homeowners, as they can require complex and expensive repairs.
Consumer Rights : Consumers have the right to repair apparent and hidden defects, as established by Brazilian consumer legislation.

Deadlines and Responsibilities: Ensuring Consumer Protection

In the context of property defects, it is essential to understand the deadlines and responsibilities established by Brazilian legislation to ensure consumer protection. For apparent defects, the Consumer Protection Code (CDC) determines a period of 90 days from the actual delivery of the property for the consumer to complain to the construction company. During this period, the construction company is obliged to repair the defect or offer an appropriate solution, such as replacing the product or refunding the amount paid. It is crucial that the consumer communicates the addiction in a documented manner, preferably in writing, to guarantee their rights.

On the other hand, for hidden defects, the complaint period is longer. The consumer can sue the construction company within up to 5 years after delivery of the property, as established by article 27 of the CDC.

In these cases, the construction company is also responsible for repairing the defect or offering an appropriate solution, even if the problem only manifested itself after a considerable period of time. These deadlines and responsibilities are essential to ensure that consumers are protected against possible defects in their properties and that they can seek appropriate repairs if necessary.

Deadline for Claiming Apparent Deficiencies : The consumer has up to 90 days after delivery of the property to report any visible defects, such as cracks in the walls or flaws in the painting. It is essential that the consumer communicates the problem in a documented way, preferably in writing, to guarantee their rights.
Construction Company's Responsibility : After the complaint, the construction company has the obligation to repair the defect or offer an adequate solution. This may include fixing the problem, replacing the defective product, or refunding the amount paid by the consumer.
Documented Communication : To guarantee their rights, it is essential that the consumer communicate defects in a documented manner. This can be done through letters, emails or other written records that serve as proof of the complaint and contact with the construction company.
Deadline for Claiming Hidden Deficiencies : In cases of hidden defects, which are problems that arise after a period of use, the consumer has up to 5 years after delivery of the property to contact the construction company. Even if the problem is only identified later, the consumer still has the right to repair.
Broad Consumer Protection : Brazilian legislation, especially the Consumer Protection Code, offers broad protection to consumers in cases of property defects, guaranteeing adequate deadlines for complaints and holding construction companies responsible for the quality and suitability of the products delivered.
Documentation and Evidence : Maintaining complete and organized documentation is crucial to protecting consumer rights. Written records, photographs and other documents can serve as evidence in the event of a dispute with the construction company.

Procedures and Solutions for Addictions in Real Estate

When identifying any type of addiction, whether apparent or hidden, the consumer must follow specific procedures to protect their rights. The first step is to communicate the problem to the construction company in a clear and documented way, preferably using a letter or email to register the complaint, including details and dates. It is crucial to keep all evidence of the defect, such as photographs or technical reports, to strengthen the case in a possible dispute.

If the construction company does not resolve the problem within the established deadline, the consumer can appeal to consumer protection bodies, such as Procon, or seek legal action. Mediation or conciliation between the parties can be an effective solution to resolve the impasse amicably and quickly. The guarantees established by construction companies are fundamental to protecting consumer rights, following the guidelines of Brazilian legislation and the CDC, which establish specific deadlines to guarantee the quality of products.

It is essential that consumers know their rights and responsibilities when purchasing a property, seeking clear and transparent information from construction companies. Maintaining an open and constructive dialogue with the construction company in case of problems is essential, aiming for solutions that meet the needs of both parties.

The guarantee offered by construction companies not only protects the interests of consumers, but also promotes the quality and safety of real estate projects. This contributes to the sustainable development of the market and the satisfaction of everyone involved, strengthening trust and credibility in the real estate sector.

Documented communication : It is crucial that the consumer communicates any defect to the construction company in a documented manner, preferably by letter or email. This helps record the complaint by providing a clear, dated record of the problem.
Evidence of the defect : Keeping evidence of the defect, such as photographs or technical reports, is essential to strengthen the case in a possible dispute. This evidence can be fundamental in proving the existence of the defect and the need for repair.
Appeal to Consumer Protection Bodies : If the construction company does not resolve the problem within the established deadline, the consumer can appeal to consumer protection bodies, such as Procon. These bodies can mediate communication between the parties and seek a solution to the problem.
Judicial route : If the problem persists, the consumer can seek legal action to guarantee their rights. A lawyer specializing in consumer law can offer legal advice and represent the consumer in legal proceedings against the construction company.
Mediation and conciliation : Mediation or conciliation between the parties can be an effective alternative to resolve the impasse amicably and quickly. These conflict resolution methods allow parties to reach an agreement without the need for a drawn-out court process.
Knowledge of Rights and Responsibilities : It is essential that consumers know their rights and responsibilities when purchasing a property. This includes understanding the deadlines and procedures for complaints about defects and guarantees offered by the construction company.
Open dialogue with the Construction Company : Maintaining an open and constructive dialogue with the construction company in case of problems is essential. This can facilitate the resolution of the problem more quickly and efficiently, avoiding prolonged and exhausting disputes.
Contribution to the sustainable development of the market : The guarantees offered by construction companies not only protect the interests of consumers, but also promote the quality and safety of real estate projects. This contributes to the sustainable development of the market, strengthening trust and credibility in the real estate sector.

Concluding

The construction company's guarantee plays a fundamental role in protecting the rights and interests of consumers during the purchase of a property. By understanding the deadlines, procedures and responsibilities established by Brazilian legislation and the Consumer Protection Code, buyers can prepare themselves to deal with possible apparent and hidden defects.

Documented communication, searching for evidence of the defect and exploring conflict resolution options, such as mediation and conciliation, are essential steps to ensure a satisfactory solution in the event of problems. Furthermore, knowledge of consumers' rights and responsibilities and an open dialogue with the construction company can contribute to a more transparent, safe and sustainable real estate market, benefiting both consumers and companies in the sector.