Late notification of construction defects: the contractor’s acceptance and timing defences

Full topic-specific Information Guide ↓

When the employer sends a defect list months after delivery and seeks to deduct repair costs from a progress payment, the contractor’s first question should go beyond whether the work was defective. When was the work delivered, was the alleged problem discoverable then, when did the employer learn about it, and when was notice given? These dates matter as much as technical responsibility. Yet saying “notice was late, so every right has been lost” is unsafe. Latent defects, incomplete work, the scope of acceptance and special contractual provisions require separate assessment.

First distinguish defective work from incomplete work

A defect concerns completed work that lacks its agreed or expected quality. Incomplete work involves an allegation that an undertaking was never performed. A completed roof with faulty waterproofing differs from an entire contractual item left undone. The examination and notification defence under Articles 474 and 477 should not be applied automatically to every incomplete item. A single list may contain both kinds of claim; classify each item separately.

This article concerns the contract for work between the employer and contractor. A consumer homebuyer’s claim, a public works contract with an administration, or a third party’s loss cannot simply be placed under the same regime. The effect of warranty and acceptance provisions must also be examined against the actual contract. Calling a dispute a construction dispute does not determine its governing law or court.

Delivery and ordinary examination matter for apparent defects

Article 474 requires the employer to examine the work as soon as the ordinary course permits after delivery and notify defects within an appropriate period. The law does not impose a universal three-, seven- or thirty-day notification period for construction. The scope of examination depends on the project’s size, technical character, access and whether ordinary inspection could reveal the problems. The interval between delivery and the report does not decide the issue by itself.

The contractor should assemble the delivery record together with evidence of access for examination, commencement of use, inspection records and the content of the first objection. An occupancy permit or final invoice date does not invariably establish actual contractual delivery. With partial delivery, identify when each part was handed over. The technical expert should expressly address delivery and discoverability.

Acceptance does not automatically eliminate latent-defect liability

Article 477 regulates the effect of express or implied acceptance on defect liability. Failure to examine and notify may lead to deemed acceptance. Liability may nevertheless continue for defects deliberately concealed by the contractor or undetectable during proper examination. Rather than relying only on a signed record, establish its reservations, the items inspected and whether the defect was discoverable at that time.

For a defect emerging later, the employer must notify without delay. The starting point must be examined against emergence and discovery; a later expert report is not always the first discovery date. An earlier service request, photograph, management letter or attempted repair may show earlier knowledge. Records indicating prior knowledge, concealment or an undertaking to repair by the contractor may also affect the defence. Selecting only favourable records is insufficient.

Raise the notification defence expressly and in time

The judgment of the 15th Civil Chamber of the Court of Cassation dated 6 May 2013, E.2012/3493, K.2013/2952 concerns alleged latent defects in a school damaged by an earthquake. Its full text shows that the trial court dismissed the claim for late notification although the contractor had not raised that defence; the Chamber reversed on that basis. The case applied the former Code No.818. It does not automatically decide a current Code of Obligations case, but it illustrates why the notification defence must be expressly pleaded.

The defence should identify which items are apparent or latent defects, the examination and notification dates relied upon, and the evidence supporting acceptance. Preserve technical merits defences as well: instructions from the employer, misuse, maintenance faults and later third-party interventions require documentary support. For a defect arising from the employer’s instructions under Article 476, the record of the contractor’s express warning is particularly important.

Notification periods and limitation are different

Article 478 provides limitation periods running from delivery: five years for immovable structures and two years for other works. With gross fault by the contractor, it provides twenty years regardless of the work’s nature. These are limitation periods; they do not replace appropriate or prompt defect notification. A claim filed within five years does not necessarily establish timely notification. Gross fault should not be presumed for every defect.

Suspension and interruption of limitation need separate examination. Under Article 154, acknowledgment, partial performance and proceedings or enforcement may matter. Statements in repair negotiations and payments therefore require careful review. Do not delete records on the assumption that a goodwill intervention has no legal significance. This guide calculates no individual deadline; establish actual delivery, discovery, notification and procedural events together.

What can be done before evidence disappears?

If the structure will be dismantled or repaired, or its use conditions will change, the contractor may also request preservation of evidence. Article 400 of the Code of Civil Procedure requires a legal interest; the risk of evidence disappearing or becoming substantially harder to present matters. Before proceedings, apply to the court competent for the merits or the civil court of peace where the object of examination is located; after proceedings begin, only the court hearing the case is competent. Preservation is not a final judgment determining who is right.

Jurisdiction over the merits depends on the parties’ capacities and claim. A commercial dispute goes to the commercial court of first instance; an ordinary private-law dispute without special jurisdiction to the civil court of first instance; a consumer dispute requires its special jurisdiction and procedure. For commercial monetary actions, check mandatory pre-action mediation under Article 5/A of the Commercial Code. Territorial jurisdiction requires examination of the defendant’s domicile and contractual place of performance under Articles 6 and 10 of the Code of Civil Procedure. Service of proceedings or enforcement requires a separate response calendar.

Practical preparation starts with one chronology: contract and specification, delivery by section, acceptance and reservations, the first problem record, notification and receipt evidence, and maintenance and repair documents. Give each allegation its own row. A strong contractor defence comes from connecting the legal character of notice with the technical events, rather than late notice alone. The full Information Guide below provides document and action sequencing for that purpose; it generates no liability or litigation-success score.

Sources

General information; individual documents, facts and procedures need separate review.

Defect notification: the contractor’s delivery, acceptance and evidence preparation guide

Answer the topic-specific questions, select your records, then view your tailored preparation summary and office-branded PDF.