Damp in a new apartment from a contractor: who to claim from, and by when

Where does damp in a new apartment come from?

Damp is a symptom, not a diagnosis. The same stain on the wall may come from entirely different sources, and each source has a different method of repair. The common sources in new apartments:

• Waterproofing of balconies and planters: water that penetrates beneath the balcony tiling and migrates to the wall or ceiling below.
• Roof waterproofing: particularly around pipe penetrations, condensers and water heaters, and at the junction between the roof and the parapet.
• Waterproofing between floors: a wet room, such as a shower, that is not properly sealed, with water passing into the apartment below.
• Plumbing: a concealed leak from a faulty connection of water, drainage or sewage pipes inside the wall or floor.
• Windows and doors: defective sealing between the aluminium frame and the wall, which becomes apparent in wind-driven rain.
• Condensation: moisture condensing on a cold wall, usually due to insufficient thermal insulation or a thermal bridge.

Distinguishing between the sources is a professional matter, and it is also legally important: it determines which item in the Schedule to the Law the defect belongs to, and therefore also the inspection period. As early as an interview with ynet on construction defects (5 February 2021), Advocate Amos Ilan set out the common sources of damp, from defective waterproofing between floors and on balconies to faulty installation around roof pipework.

How much time do you have? Inspection periods for damp

The inspection period begins on the day the apartment was made available to the buyer (section 4(c) of the Sale (Apartments) Law). The Schedule to the Law sets its length according to the type of defect:

• Contract signed on or after 6 April 2011: failure of the building's waterproofing, including underground spaces, walls, ceilings and roofs, four years. Failure of plumbing systems, including leaks, four years.
• After the end of the inspection period: a warranty period of a further three years for the same item.
• Contract signed, or building whose construction was completed, before 6 April 2011: the previous version of the Schedule applies, under which damp penetration is three years and plumbing two years.

You can calculate the exact dates for your apartment using the inspection and warranty period calculator, based on the handover date and the contract date.

Who bears the burden of proof?

During the inspection period it is sufficient that the damp has appeared. The contractor is liable unless he proves that it was caused by an act or omission of the buyer (section 4(a)(2)). Contractors often argue that it is condensation caused by a lack of ventilation, in other words an omission by the occupants. During the inspection period, the burden of proving such an argument lies with them.

During the warranty period the position is reversed: the buyer must prove that the source of the damp lies in the design, the workmanship or the materials (section 4(a)(3)). In practice this means an engineer's opinion, and sometimes also destructive testing, such as lifting the tiling, to show what lies beneath it. Damp that appears in the fourth year should therefore be dealt with before the inspection period ends.

What to do when you discover damp

1. Document it. Dated photographs, the date of first appearance, and whether the damp appears after rain, after a shower, or unrelated to either. This connection is an important clue to the source.
2. Notify the contractor in writing. Hidden damp, which could not have been discovered at handover, requires notice within a reasonable time of discovery (section 4A). To draft a proper notice, you can use the letter generator for the contractor.
3. Allow repairs, and document every round. When they came, what they did, and when the damp returned. Three documented rounds of waterproofing are far stronger evidence than an expert opinion describing damp at present.
4. Do not paint or cover up before documentation and inspection. Fresh paint hides the evidence, and sometimes also the signs of the source.
5. Commission an engineer's inspection when needed. An engineer can measure moisture, use a thermal camera and carry out a flood test on the balcony or roof in order to locate the source. On what the expert opinion should contain: Engineer's opinion in construction defects.

When the damp returns after repair

The contractor's right to repair is not unlimited. Under section 4B(b) of the Law, if the non-conformity recurs and is discovered after the contractor has repaired it once or more, within two years of the date of notice, the buyer may carry out the repair himself, and the contractor will bear the costs of repair. The same applies where the repair is urgent and the contractor has not carried it out within a reasonable time of the notice.

With damp this is a common situation: localised waterproofing that looks sound in summer fails in the first winter. Hence the importance of documenting every round of repairs, with the date.

Contractors tend to say that repairs cannot be carried out in winter because it rains, and in summer it is impossible to check whether the repair has succeeded because there is no rain, and so time drags on. But in Israel there are few rainy days, and repairs can certainly be carried out in winter too. And the repair is checked by a spray test or a flood test, as appropriate, not by waiting for rain. These tests are governed by an Israeli Standard, SI 1476 (Parts 1 and 2), and it is possible and advisable to act in accordance with it.

Actual repair or compensation?

With damp, actual repair is usually sought, but under supervision, so that the dispute does not return the following winter. In a case we handled in a TAMA 38 project, a consent judgment provided that the developer would carry out repairs in accordance with the expert opinion under the supervision of a court-appointed expert, that liability for the repair would continue for at least three winters from the expert's approval, and that compensation of NIS 20,000 would be paid. The details are in the article Construction defects in an apartment in a TAMA 38 project.

Where the contractor has already tried and failed, or where trust has been damaged, monetary compensation makes it possible to choose another contractor and supervise him. On the considerations: Repair or monetary compensation.

As a rule, where the source of the leak is unclear, or where the repair requires works in other apartments or in the common property, it is preferable to claim actual repair rather than compensation. It will be difficult to carry out the repair with the compensation money, and it is not certain that it will cover the damage. And where the repair passes through a neighbour's apartment, you will not want to enter into a dispute with him, and even if he is pleasant and everything works out, you will not want to take responsibility for his apartment.

And what about damp in a second-hand apartment?

The Sale (Apartments) Law does not apply to a second-hand apartment, and there are no inspection periods. The question is what the seller knew and what he disclosed to the buyer, and what was agreed in the contract. This is discussed in the article The seller concealed damp in the apartment on the dira-law website.

About the author

Amos Ilan, Advocate, is a lawyer (Bar No. 35320) and a notary (licence 214444). The office is at 17 Tzahal Street, Nes Ziona, and handles real estate transactions, construction defects, condominium disputes and civil litigation. Alongside his legal work he has practical knowledge, not based on formal training, of engineering, appraisal and electrical and building systems, and he personally conducts the cross-examination of experts in construction defects cases.