Statutory warranty for property defects caused by martens: a client’s case

This article is a case study concerning Polish law. References to the Civil Code are references to the Polish Civil Code (Kodeks cywilny).

My clients bought a house in Bielany Wrocławskie. They soon discovered serious defects: the attic and roof had been damaged by martens. The seller had assured them that there was no pest problem and that the attic was in perfect condition.

Seeking assistance, the affected buyers approached a large, reputable law firm. Unfortunately, their case was handled superficially. It was passed from one employee to another, with little commitment being shown, and communication was limited to generalities. Months passed without any progress. Mediation was supposedly under way, but it produced no result at all.

Cause of the dispute

By the time the clients came to me, they had lost hope of settling the dispute amicably. The seller consistently refused to accept liability for physical defects caused by martens. The roof covering had deteriorated severely and required immediate repair.

No opportunity to inspect the building before the sale

Before purchasing the property, the clients could not examine its condition fully because the attic was not accessible from the upper floor. The seller refused to make an inspection opening in the roof that would have allowed the attic to be examined. At the same time, the seller assured them that the attic was in perfect condition and that there had never been any martens in the roof. The clients decided to buy the new house.

On the very first night after the purchase, they heard distinctive scurrying sounds in the attic. They contacted the seller, who repeatedly maintained that “it was no longer his problem”. At their own expense, the clients engaged a company to open up the roof. It transpired that the mineral wool insulation had been destroyed in many places and that there were traces of marten nests and droppings. Immediate roof repairs were necessary.

When the buyers submitted a declaration to the seller reducing the price by the cost of repairing the roof, a dispute lasting many months began over liability for the roof defects.

1. Statutory warranty for defects in the item sold (Articles 556-576 of the Polish Civil Code)

The buyer’s rights under the statutory warranty (rękojmia) include the following:

  • the buyer may submit a declaration reducing the price,
  • the buyer may submit a declaration withdrawing from the sale agreement,
  • the buyer may demand replacement with an item free from defects, although this is generally impossible in the case of defects in real estate,
  • the buyer may demand repair of the item.

When may the seller attempt to repair the item despite the buyer having requested a price reduction? The seller may do so if the repair is commenced immediately and does not cause excessive inconvenience to the buyer.

In the case under discussion, the seller took no action after the defect was reported. The matter was sufficiently serious that the buyers had to carry out the repairs immediately at their own expense. They then submitted a declaration reducing the sale price by the cost of repairing the roof.

2. When the seller is not liable for defects in the item sold

The seller may be released from liability for defects in the item sold if the seller proves that the buyer knew of the defect when the sale agreement was concluded. It should be remembered that a buyer who is a consumer has no obligation to inspect the building in detail and does not have specialist knowledge of construction law enabling them to assess whether the building is free from defects. In the context of purchasing real estate, knowledge of a defect means a situation in which any average person would be able to see the defect “with the naked eye”.

In the case I handled, the clients could not inspect the attic without opening up the roof. It was therefore impossible to conclude that they knew of the defect when they purchased the property.

3. Time limits for claims

As a general rule, the period for exercising statutory-warranty rights in respect of defects in a building, which is real estate, is five years from the date on which the property is delivered. Any defects revealed during that period may form the basis of statutory-warranty claims.

There is, however, an important qualification: once you discover a defect, you must decide on a specific remedy, such as repair, replacement, withdrawal or a price reduction, within one year of discovering it.

4. Conclusion

What was my role in this case?

As professional legal counsel, my duty was to act in the clients’ interests. After analysing the case in detail, I took specific pre-litigation steps to recover the costs the clients had incurred in repairing the roof.

Fortunately, the case was resolved by settlement. The clients recovered their money without having to conduct years of litigation, and the seller came to understand that court proceedings would be unfavourable to him.