Every roofing contractor is likely to be confronted with it at one time or another: a client who reports a complaint about the bitumen roof he has completed. In such a case, it is important for the roofer to assess a number of issues in order to minimize the possible obligation to repair or pay compensation. This is explained using a fictitious case study.
Case study
A roofer installs a bitumen roof on an office building in 2010. In late 2019, after more than nine years, client complains that there is degradation of the bitumen used. The client wants the roofer to replace the entire roof because he fears leaks in the future and also makes a warranty claim. The roofer believes that no warranty applies. In addition, he feels that full repair, given the time that has already passed since the roof was completed, is out of the question.
Is (still) warranty applicable?
For every complaint reported under warranty, the roofer must review whether a warranty has been issued for the part in question and exactly what the issued warranty means. Usually, a warranty means that the roofer must prove that the reported defect is not attributable to him. If that fails, he must repair the defect. Without a warranty, the client must prove the cause of the defect and that the roofer is responsible for the defect. Thus, a warranty gives a client an easier position evidentiary wise.
Back to the case study. In this case, the roofer had given a ten-year warranty on the waterproofing of the roof. Although (just) under ten years have passed, the client cannot invoke the warranty because there are no leaks. The parties do not come to a mutual agreement and the client starts proceedings. In the proceedings, the principal demands total replacement of the roof or replacement damages.
In the proceedings, the client succeeds in demonstrating that the bitumen, which is blistering in several places, degrades to the point of being defective and that the roofer is liable to him for it.
Exceptions to principle that full damages must be compensated
The legal principle is that a liable party compensates 100% of the actual (consequential) damage suffered by the other party. However, there are a number of exceptions to this rule. Namely, part of the damage remains for the client's account if the roofer successfully appeals in the proceedings to the presence of "own fault" on the part of the client and/or the correction new for old. This is explained below.
- Own fault
This means that the client has a legal duty to minimize damage that occurs within reasonable means. So in the case study: if the roofer can prove that the degradation of the bitumen occurred or worsened because the client did not have the prescribed maintenance performed on the roof, then part of the damage remains the client's responsibility. In this context, it is important to inform a client in writing about the required maintenance no later than the time of delivery.
- Correction new for old
If the defective bitumen roof is completely replaced, the client thereby receives a new roof. This gives him an advantage because this roof lasts longer than the original roof and less extensive maintenance is required in the first few years. This benefit is included in the calculation of the compensation. When calculating the correction new for old, the (technical) lifetime of the building material in question is the starting point. Judges and arbitrators of the Council of Arbitration in construction disputes assume a (technical) lifespan of 20 years for bitumen roofing. Back to the case study. Almost 10 years of the 20-year lifespan have passed since completion at the time of the client's complaint. A correction new for old of approximately 50% will be applied to the total replacement of the roof. The roofer will be ordered to pay the other 50% of the damages suffered.
In litigation, a contractor himself must invoke these exceptions. Indeed, a judge or arbitrator may not, in principle, independently assess whether this is the case.
Recovery claim not proportional?
Claiming total replacement of the roof by a principal may be unreasonable. This is the case when the cost of repair is disproportionate to the client's interest in repair. For example: an aesthetic defect in a virtually invisible spot. In this case, a contractor cannot be forced to make repairs and the client must, in principle, settle for compensation.
In conclusion
Back to the case once more. For the roofing contractor, it pays to see if the client's complaint about the degrading bitumen can be referred to the bitumen supplier. To do so, check the applicable sales or purchase conditions. It may then be possible to resolve the client's complaint by mutual agreement because the supplier also contributes to the solution. If this fails, then there is nothing else left to involve this supplier in proceedings.
Thus, in the event of a (potential) claim by a client, the roofer should assess the following:
- there is a defect;
- a warranty has been issued pursuant to which repairs should be made;
- restoration is disproportionate given the nature and extent of the defect;
- is the client's own fault and/or the correction new for old can be applied in the event of recovery.
