The importance of building maintenance in order to assess the constructor’s liability: an analysis between civil engineering, courts and law

Abstract

The purpose of this study is to examine whether building maintenance is an issue in assessing liability in claims for damages against Construction Companies from the standpoint of both civil engineering and law, and, if so, if the solutions reached by the Courts are correct. The study provides an innovative approach to the future of expert opinions in the construction field. It analyzes case law from main Brazilian Courts in order to develop theoretical insights and proposals for improving to the current scenario. The following search parameters were used to select the decisions in the Courts’ websites: “imóvel e construtora e manutenção e vícios construtivos”, “imóvel e construtora e vícios” e “imóvel e construtora e manutenção”. The results suggest that Brazilian Courts pay little attention to the maintenance activities performed by the owner, which, in most cases, are not considered a relevant factor in claims for damages. The data indicate a great tendency for Brazilian Courts to impose liability for defects to the Construction Company without considering the ABNT technical rules in most cases. Whether or not there is expert evidence, the Courts tend to hold that the burden of proof is on the builder to prove that the defects in the building are the result of either lack of proper maintenance or the action of time. Sometimes, Courts recognize contributory negligence, making both the Construction Company and the owner liable, specially when the expert opinion concludes that the defects in the building are due to both the owner’s failure to perform maintenance activities and problems related to the construction process.