Construction warranties

Construction warranties: safeguarding warranty rights correctly – despite the extended notice period

The partial revision of the law governing sales and works contracts, which has been in force since 1 January 2026, is a major focus of attention within the construction industry. The aim of the partial revision was specifically to strengthen the legal position of building owners and purchasers of newly constructed buildings. Three key changes are at the heart of the revision:

  1. Extended notice period. The previously applicable, very short immediate notice period is replaced by a 60-day notice period in certain circumstances.
  2. Mandatory right to rectification. In the case of buildings, the right to rectification cannot be excluded or restricted in advance.
  3. Unilaterally mandatory limitation period. The five-year limitation period in favour of the client and the purchaser of the property can no longer be shortened to their detriment.

Whilst the revision improves the position of building owners in certain areas, it creates new uncertainties in several respects – for all parties involved in the construction process. This affects work contracts (Werkverträge) and sales contracts concluded after 1 January 2026. From the perspective of those involved in the construction process, in particular the following key points must be noted in practice, with regard to which the revision falls short:

  • The 60-day notice period does not apply generally. It applies only in the scenarios exhaustively listed by law – namely, where a movable work (bewegliches Werk) or a purchased item has been integrated into an immovable work (unbewegliches Werk) in accordance with its intended purpose and has caused its defectiveness. If these conditions are not met, the immediate complaint remains applicable. Anyone who relies prematurely on the 60-day period risks forfeiting their rights in respect of defects.

This applies, for example, to an appliance that is merely plugged into a socket, as it does not meet the requirement of integration.

  • The duty to inspect remains unchanged. Only the duration of the notice period has been altered or extended, not its starting point. The obligation to inspect the work or the purchased item “as soon as is practicable in the ordinary course of business” continues to apply. If a defect was already apparent on acceptance, it must still be notified immediately. There is a risk of the deadlines being split: immediate notification for defects apparent before installation, 60 days for those only detectable after installation. This creates a notification trap.

If defective materials are delivered and installed before they have been inspected, the right to notify may already have lapsed – incoming inspections must be organised, scheduled and documented.

  • By law, the diligent client commissioning the planning work does not benefit from the extended notification period. The 60-day notice period for planning documents (Planwerke) only applies if the planning defect has actually caused the defectiveness of the structure. Anyone who identifies a planning error at an early stage – before construction begins – and has it corrected must give notice immediately (unless, for example, SIA Regulation 102 has been agreed). Compliance with the (required) standard of care is therefore not rewarded.

If the client discovers a planning error before construction begins and does not raise a complaint immediately, the planner may invoke forfeiture.

  • There is a gap in recourse between a work contract and a sale. The five-year limitation period is mandatory vis-à-vis the client, but optional in the case of the sale of movable property. The contractor is therefore liable to the client for five years, but can only successfully seek recourse against his supplier if he has not agreed a shorter limitation period with the latter.

The main contractor should actively align the limitation periods vis-à-vis their suppliers with their own five-year liability in order to close the recourse gap.

The existing gaps – and the numerous legal issues still to be clarified by the highest courts – are relevant to all parties involved in construction.

We assist clients, planning engineers, site managers, contractors and suppliers in securing contractual protection against these pitfalls, in designing inspection and complaint procedures throughout the entire contractual chain, and in enforcing and defending against warranty claims – under both the old and the revised law.