Meaning
The term ‘defect’ means ”any imperfection, abnormality, deficiency of, in or around the structure and its function”. The defect may affect the raw materials, components and soil.
The defect may also affect the material. If the material of the component is unable to perform the expected function of that component, the material is defective. For instance, the plastic of a window latch will be defective if the plastic melts due to non-abnormal heat.
An error in execution can also render the structure defective. This includes, for example, the construction of a house on an unfounded ground.
The defect may also involve function. If the structure is not fully usable because it is not adapted to the specific functions for which the client wishes to use the structure, it is called a functional defect. In the case of functional defects, the architect is liable.
This functional defect must be distinguished from a ‘structural defect’. The structural defect affects the normal use for which the building is intended. Consequently, the distinction lies in the destination of the structure.
Visible and hidden defects
All these defects can be classified into two broad categories, visible and hidden defects.
The visible defects can be seen during the acceptance of the works. A normal, foresighted and careful builder will notice these defects. If one does not comment on them, these defects are covered and the builder himself will further be liable. This liability remains in place regardless of the further development of the visible defect.
However, the hidden defects are not visible during approval of the works to a normal, careful and circumspect builder belonging to the same professional category and placed in the same concrete circumstances, who has subjected the works to a close examination.
Judicial assessment
Ultimately, it will be the judge who decides on the (in)visible nature of the defect. Thus, it has already been ruled that a defect that already existed at the time of acceptance of the building, such as a fault in the sound insulation, but which could only be discovered when the building was occupied, should be considered a hidden defect.
The judge will look at the concrete circumstances to assess whether the defect is hidden or not (= assessment in concreto). He will take into account the capacity of the builder and any assistance he may have had.
Examination and assistance
There is no general obligation on the part of the builder to be assisted by an expert. Especially for smaller works, this is not common. Only for very specific construction works can this be a requirement. For certain works, the builder is also obliged to have himself assisted by an architect.
The following examples were considered by case law to be a visible defect. It should be remembered that this depends very much on the specific situation:
- Insufficient sound insulation;
- Cracked bricks;
- Lack of cement in a screed;
- Leaking sanitary pipes;
- Concrete slab too thick;
- Mould;
- Non-functioning fume hood;
- Wrong type of roof tiles.
The following anomalies were considered a hidden defect:
- Poorly functioning fireplace;
- Poor soldering;
- Cooling system that consumed excessive energy.
Serious defect
For the deficiency to be classified as a “defect,” the defect must be serious. The defect is sufficiently serious if the client would not have accepted the works had he known of their existence. Minor defects do not qualify. If the defect is so serious that the solidity of a structure is affected, then the ten-year liability applies to it.
The contractor or the architect are liable for the hidden defects if they committed a fault. The burden of proving this fault varies depending on the defect. Given the contractual nature of liability, the plaintiff must also prove his damages.