Isn´t the warranty term always the same in any case or situation?
Discover the determining factors of the warranty term for a building.
The warranty term for a building is a right given to the consumer/buyer of the good, holding the builder responsible for construction defects, built-in damage or lack of conformity with the agreed conditions.
Generally, buildings have a legal five-year warranty term.
The homeowners´ warranty can be implied or expressed.
The implied warranty exists by operation of law, if there hasn´t been any expressed specification in the contract. According to the Portuguese Civil Code, articles 913 and following determine the general regime as well as the special regime in case of a works contract, giving warranty to the owner or buyer.
There is another special regime to consider, which was given by the Decree-law n°67/2003, from 8th of April, amended and republished by Decree-law nº84/2008 of 21th,of May, that establishes the warranty conditions of the sales contract between professionals and buyers.
We are talking about an agreed warranty, when the term and conditions of warranty have been negotiated in forehand between the parties, which have to be specifically mentioned on the purchase document.
In this article, we are going to focus on the legal warranty term, when there isn´t a previous agreement between the parties.
In case of the legal warranty, which law is going to be applied? Which are the main conditioning factors of the warranty term?
Is the warranty term for the purchase of a new home the same as for an used property?
Is there a difference between a private seller or a professional salesperson?
Who is going to guarantee the quality of a new/unused home, but that was built five years ago?
Those questions are going to be answered along the following lines.
The purchase of a builiding directly from the person that constructed, changed or repaired it, has a legal warranty term of 5years counting from the date of delivery to the buyer, who can be a professional or a consumer (Article 1225 of the Civil Code).
What about the purchase of an unused building, but that is already five years old and from a private investor?
Here, the contractor is not hold responsible for the warranty, because the period of five years has already ended and the seller hasn´t constructed, changed or repaired the building. This way he doesn´t fall under Article 1225,of the Civil Code. The special regime established by Decree-law nº67/2003, isn´t applicable as well, because the purchase didn´t occur between a buyer and a professional salesperson, so that the general regime on defective products, according to article 913º and following of the Civil Code does not count.
In fact, all implied warranties have a maximal period of five years, however the period of notice of the defective thing along with the expiry date may differ in each regime.
Decree-Law n.º 67/2003 – contract between professionals and consumers
Implied warranty period of five years, counting from the date of delivery.
The report of the defect has to be done within a year counting from the date of detection of the damage, during the warranty period of five years. The consumer has the right to require the seller to replace or repair the good free of charge, to lower the price of the good or even end the contract within a reasonable time. If the professional isn´t willing to take responsibility, the consumer may take legal action in a period of three years counting from the date of the complaint.
Building work contract regime – regime set in Article 1207 and following of the Civil Code
When a contractor and consumer entered an agreement or when a seller that has built, changed or repaired the property and a buyer, being or not a consumer, entered an agreement.
Warranty period is of five years counting from the delivery date of the good; The damage has to be denounced within the following 30 days afert the detection of the defect, always during the five-years warranty term. The buyer has the right to require the elimination of the defect free of charge, or, if elimination is not possible, to require a new building. If the defect wasn´t eliminated or the work wasn´t rebuilt, the buyer can ask for reduction of the price or end the contract, if the defects turn the building inadequate to its purpose. The buyer can also require a compensation. If the contractor/constructor is not willing to assume its responsibilities, the buyer can take legal action in a period of max. two years counting from the date of delivery of the work.
Purchase of faulty goods regime – regime established in Article 913 and following of the Civil Code
When a seller and a buyer entered an agreement.
This is the most comprehensive regime, that includes the purchase from private individuals and of any property, regardless of the age of the building. The term for this warranty is of 5 years counting from delivery of the good. The damages have to be denounced within one year counting from the date of its detection, always during the five year period. The buyer has the right to require a replacement, elimination of the problem or even a new construction, without being charged for it. If the seller, however, wasn´t knowing the defect and is without guilt, the buyer cannot ask for replacement. The buyer still can take legal action if his purchase rights haven´t been respected within a period of six months counting form the date of notice from the fault.
We strongly recommend to get legal advice when buying a property, in order to handle any problem that might appear in the future.
