You have found a defect in your new apartment. What now?

Two periods, not one

The Sale (Apartments) Law, 5733-1973, distinguishes between two periods. Section 4(c) defines the "inspection period" as the period fixed in the Schedule to the Law, beginning when the apartment is placed at the purchaser's disposal, and the "warranty period" as three years beginning at the end of the inspection period.

Note a point that is almost always missed: the warranty period does not begin on the day of delivery but at the end of the inspection period for the item concerned. Because each item has its own inspection period, the warranty period also begins and ends on a different date for each item.

Inspection periods under the Schedule to the Law

• Metalwork and joinery, including aluminium and plastic: two years
• Interior flooring and cladding, including subsidence and wear: two years
• Failure in the functioning and durability of machinery and boilers: three years
• Yard landscaping, including subsidence: three years
• Failure in the functioning and durability of thermal insulation components: three years
• Failure of piping systems, including water, heating, gutters, waste water and sewage, including leaks: four years
• Failure of the building's waterproofing, including underground spaces, walls, ceilings and roofs: four years
• Cracks wider than 1.5 mm in non-load-bearing elements: five years
• Detachment, peeling or crumbling of exterior cladding: seven years
• Any other non-conformity that is not a fundamental non-conformity: one year

This list is exhaustive, and that is an important practical point. Damp, for example, is not a separate item in the Schedule: it falls under waterproofing or under piping, and in either case the period is four years. By contrast, cracked plaster that does not meet the definition of cracks, or a lift malfunction, is not listed in the Schedule and therefore falls under the general one-year item. The difference between four years and one year is the whole case.

Damp is also one of the most common and most troublesome defects. In an interview with ynet on construction defects, Advocate Amos Ilan set out its usual sources, from faulty waterproofing between floors and on balconies to poor installation around rooftop piping, and explained that with defects of this kind the remedy usually sought is an actual repair rather than monetary compensation: "Suffering from construction defects in your apartment? Here is how to sue and obtain compensation" (ynet Economy, 5 February 2021).

In addition, section 4(a)(4) sets an inspection period of twenty years for a fundamental non-conformity, that is, a non-conformity in the foundations, in the structural frame or in anything affecting the stability and safety of the building. Section 4(a)(5) adds that even after all the periods have expired, the seller remains liable if the purchaser proves that the non-conformity originates in the design, the workmanship or the materials.

Who has to prove what: the practical difference

During the inspection period, under section 4(a)(2), it is enough that a non-conformity has been discovered. The seller is liable unless it proves that the non-conformity was caused by an act or omission of the purchaser. The burden is on the seller.

During the warranty period, under section 4(a)(3), the position is reversed: it is the purchaser who must prove that the non-conformity originates in the design, the workmanship or the materials. In practice this means an engineer's report, and sometimes also opening up part of the building to show what lies beneath, in other words destructive testing.

That is why a defect discovered in the last month of the inspection period should be handled quite differently from an identical defect discovered a month later.

In practice, we file claims in both the inspection period and the warranty period together with an expert opinion confirming that the defect exists, rather than relying on the distinction in the burden of proof alone.

Notice, and the deadline you must not miss

Section 4A of the Law sets two routes for notice. A non-conformity that could have been discovered when the apartment was placed at the purchaser's disposal, that is, at the handover inspection, requires notice within one year of that date. A non-conformity that could not have been discovered on a reasonable inspection requires notice within a reasonable time after the purchaser discovered it.

What this means in practice: the handover protocol is not a formality. Everything recorded in it is documented and dated, and anything that was neither recorded in it nor reported in the first year may fall by the wayside. A verbal comment to a representative on site is not notice you can prove two years later.

A rule of thumb: every defect in writing, with a date and a photograph, sent to the address for notices specified in the contract. Even if everyone agrees the developer will repair it, the written notice is what will remain.

The developer's right to repair, and its limits

Section 4B(a) provides that the purchaser must give the seller a proper opportunity to repair, and the seller must repair within a reasonable time. Going straight to a monetary claim without allowing a repair is a mistake, and it will cost you in legal costs.

This right is not unlimited, however. Section 4B(b) allows the purchaser to carry out the repair at the seller's expense in two situations: where the non-conformity has recurred after the seller has already repaired it once or more within two years from the date of the purchaser's notice, or where the repair is urgent and the seller has not carried it out within a reasonable time after notice.

This also tells you what is important to document: not only the defect but every round of repairs. When they came, what they did, and when the problem returned. Three documented rounds of waterproofing work are far stronger evidence than a report describing damp as it is today.

What to do in practice

• Go through the handover protocol with someone who understands construction, and do not sign it blank.
• Record every defect in writing, with a date and a photograph, and keep a copy yourself.
• Check against the Schedule which item the defect belongs to, because that determines the period and the burden of proof.
• Allow repairs, but document every round: the date, the scope, and what came back.
• Before the inspection period for a significant item ends, consider commissioning an inspection by an engineer.
• Do not rely on a verbal promise from a site manager. What is not in writing did not happen.

Bottom line

In construction defects cases, the winner is usually the party whose file is better documented, not the one whose defect is more serious. The deadlines are fixed by law, they differ from item to item, and they run from the day you received the keys. It is worth knowing where you stand before the period closes.

Nothing in this article constitutes legal advice or a substitute for it, and every case is assessed on its own circumstances.