When you arrive home, you find cracks in your living room that you had not seen before. Upon inspection of the surroundings, you notice that neighbours in the street are renovating. You immediately draw the logical conclusion that the cracks, which otherwise would have appeared out of nowhere, are the result of the neighbours' renovations. This could be a scenario of construction damage. Construction damage means damage caused to third parties as a result of the (re)construction work of a client. In a situation that has the appearance of construction damage, many important questions arise. Firstly, who is responsible. This is not always clear - is it the contractor, or the client? These and other issues in construction damage cases are explained here.
Parties
It is important to note that several parties are usually involved in construction damage. In the first instance, there is the client; he or she instructs the contractor to cultivate a building as a result of which a third party (e.g. the neighbour as mentioned above) may suffer damage. Sometimes a contractor also uses subcontractors. In addition, a contractor usually employs people. What if the contractor does not comply with the client's instructions? What if an employee of the contractor behaves recklessly at the building site? After identifying the parties involved, it is important to determine which party is responsible for the damage.
Liability
The first step in liability should be: would the damage exist without the actions of party X? Sometimes, when the damage is found, it is not clear whether it already existed before the start of the work. After all, some cracks or other defects are only discovered much later. That is why a baseline measurement is of great importance. With a baseline measurement, the condition of surrounding properties at risk of structural damage is recorded. If construction damage then appears to occur, the parties can at least not dispute which damage was already present and which was not. A baseline measurement is not compulsory, but failing to do so can have various undesirable consequences. Often the client has a so-called CAR insurance. These are insurances that can be taken out for a specific construction project and are often broad in their coverage; accordingly CAR stands for Construction All Risk. In addition, in the vast majority of cases, contractors and those carrying out the work also have insurance policies that will compensate for damage suffered by third parties. Nevertheless, it may be that different insurance companies will argue that the other party's insurance should be called in. In these and other situations, a lawyer specialised in construction law can advise both the third party to whom the damage has been caused and the party liable for the damage.
Compensation
If it is established that the damage is the result of the actions of the principal or the contractor, compensation must be determined. These compensation payments can be high. Here, an out-of-court settlement can sometimes offer solace. If all parties agree on the nature and cause of the damage suffered, a settlement may provide relief. Nevertheless, it remains an insurance matter and this will have to be taken into account. A client may believe that he is liable, but the insurance company may ultimately refuse. It often happens that a dispute about construction damage can only be settled by going to court. In the majority of such cases, engaging a construction lawyer is mandatory. In all cases, engaging a lawyer and/or legal counsel with extensive knowledge of construction law is highly recommended.
Construction damage in practice: cracks in the wall
The example mentioned in the introduction to this text is a practical one. In this judgement , several plaintiffs asked the court to order the contractor to pay more than forty thousand euros in damages because of cracks in the walls. The judge did not go along with this, for several reasons that underline the importance of proper consideration in construction damage cases. In the first instance, the defendant was not the party causing the damage, but the party who had hired the perpetrator. This does not always mean that a party such as the defendant is liable. In addition, the court held that the defendant, the developer who had hired contractors, had not acted unlawfully in its activities. Most importantly, however, it could not be established beyond reasonable doubt that the damage was the result of construction activities carried out under the defendant's care. One reason for this was the lack of a baseline measurement.
What does HABITAT do?
Whether you are accused of causing construction damage, or like the plaintiff in the practical example, finds damage and suspects that this is caused by construction activities, HABITAT lawyers can advise you. Feel free to contact us without any obligation. Also see our building and renovation page for information on building without an environmental permit.
