Engineer's expert opinion on construction defects: what it should contain, and when to commission one

When should an expert opinion be commissioned?

• Before the inspection period for a material item expires. During the warranty period the burden of proof shifts to the purchaser, and an expert opinion prepared during the inspection period is worth a great deal (on the periods: inspection and warranty period calculator).
• When the contractor rejects the demand or claims that the defect was caused by the use of the apartment.
• When the defect recurs after repair, in order to document the failure before an independent repair at the contractor's expense.
• Before a lawsuit. In a non-medical claim, an expert opinion may be attached to the statement of claim (regulation 15(b) of the Civil Procedure Regulations), so that the case is built from the outset.

What should the expert opinion include?

• The expert's details, education and experience, and the date of the visit to the apartment.
• The testing method and instruments: moisture meter, thermal camera, flood test, measurements and, where necessary, destructive testing.
• For each defect separately: description, location, photograph, and the requirement breached: the specification, the plans, an official standard or the building regulations.
• The source of the defect: design, workmanship or materials. During the warranty period this is exactly what the purchaser must prove.
• A detailed repair method, and not merely "to be repaired".
• A bill of quantities and the cost of each item, and at the end a summary, VAT and engineering supervision.

An expert opinion submitted to the court is prepared in accordance with section 24 of the Evidence Ordinance, and is accompanied by a list of the sources on which the expert relies (regulation 87(g) of the Civil Procedure Regulations).

Common mistakes

• "To be repaired" without a method and without a cost. The court cannot award a sum that has not been proved.
• Prices without a source, or without distinguishing between labour and materials.
• Mixing a defect with a matter of taste, which weakens the entire expert opinion in the eyes of the court-appointed expert.
• Failure to address the specification and the contract. A deviation from the specification is a non-conformity even where the work meets the standard (section 4(a)(1) of the Sale (Apartments) Law).
• A single inspection in summer for a damp defect that appears only in winter.

Court-appointed expert

In construction defects cases, where there is a gap between the parties' expert opinions, which is very common, the court may appoint its own expert (regulation 88 of the Civil Procedure Regulations). The expert inspects the apartment, and his opinion is usually decisive. It is therefore important to know two things:

• Where the court-appointed expert is appointed with the consent of the parties, this is regarded, unless the court orders otherwise, as consent that the parties' expert opinions submitted earlier will not be admitted in evidence (regulation 88(d)).
• Before the expert's visit, the apartment and the documentation are prepared, and questions of clarification are put to him where necessary. Defects that he did not see, or did not understand, will not be included in his opinion.

Why a lawyer who understands engineering

The case is often decided on the technical details: whether the crack is in a load-bearing element, where the damp is coming from, and what the correct repair method is. When the lawyer understands the language of engineering, he can review the expert opinion before it is submitted, draft precise questions of clarification for the expert, and cross-examine the other side's expert on the weak points.

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.