A new five-year period after repair of a hidden defect, or not?

Hidden-fault regulation

Several general conditions in construction have largely similar hidden defect provisions. Under these, a roofer is liable for hidden defects in the work for a period of five years after completion or after the end of the maintenance period. A hidden defect is a defect that the client did not notice before delivery and also should/could not reasonably have discovered during delivery. If a hidden defect occurs in the work, the roofer must, in principle, repair this defect.

An action based on a hidden defect expires with the lapse of five years. That is, a principal must commence proceedings before the Council of Arbitration in construction disputes or the courts within five years of completion or end of the maintenance period to secure his rights based on a hidden defect. What does this mean if a defect occurs after the end of the hidden defect period, but the roofer has already made repairs to the work within that hidden defect period? Is the client then left empty-handed or is the contractor still liable?

New term after recovery performed?

It is now settled case law of the Board of Arbitration in construction disputes that a five-year limitation period begins again after the contractor (such as a roofer) has repaired a hidden defect if three conditions are met:

1. the roofer must have carried out the repair himself. This is not met if the client has the repair of a hidden defect in the work performed by, for example, a third party.
2. the roofer must be liable for the hidden defect or must have acknowledged liability. This is not the case if the roofer carried out the repair without obligation and/or with goodwill.
3. The repairs carried out by the roofer must be substantial or structural. In other words, it must be an actual repair that the client expected to solve the complaint permanently. Performing makeshift repairs or making a test to see if this would solve the reported complaint is not substantial repair according to the case law of the Arbitration Board for construction disputes.

Importantly, any new five-year period applies only to a defect in the repaired work. This means that no new hidden defect period commences for other defects in the original work or for new, similar defects not previously repaired.

We explain this using an example. Suppose a roofer delivers a roof in 2015. In 2018, the client reports a complaint and the roofer makes repairs by replacing EPDM gutter lining. If it is a hidden defect (and the three conditions mentioned above are met), a new five-year hidden defect period begins in 2018. Suppose in 2022 the client complains about the roof again, but this time not about the EPDM gutter cladding. The complaint is about the end tiles that need to be replaced. If this complaint is not related to the repair of the earlier complaint about the EPDM gutter lining, then a new five-year period does not apply. For a new hidden defect, the original five-year period that began after completion in 2015 applies. That term has already expired at the time of the complaint in 2022. Therefore, the client's legal claim is in principle inadmissible. If, on the other hand, the complaint did allege a hidden defect in the repaired EPDM gutter lining, then a new expiration period did begin in 2018. In that case, the client is not empty-handed.

Tips for practice

With this established case law in mind, we offer five tips to best handle restoration of a hidden defect and avoid the onset of a new term as much as possible:

1. an open door, but no less important because of this when a hidden defect occurs. As a roofing contractor, perform proper and sound repairs so that the chance of a new defect in the repaired work is minimized;
2. state as a roofer when performing repairs that it is done entirely without obligation and courtesy, without admission of liability;
3. Record in writing the remedial work to be performed. Preferably do this in a standardized report containing at least: a date and description of the concrete complaint, a date and description of the repair work carried out and its exact location. Take clear photos and/or a video of the situation before and after repair, so that it is clear what has been repaired. In the case of a new complaint, it is then easier to prove that the complaint concerns a new defect for which no new hidden defect period has started;
4. Deliver the repaired work to the client and prepare a report of completion of the repair work. Have the client sign this document for approval and, as a roofer, send the client a copy of the signed report;
5. if the roofer works with regular subcontractors, then it is wise to contractually impose this obligation to make an official report after the completion of the repair work on these subcontractors as well.