INCOMPLETE AND DEFECTIVE WORK IN CONSTRUCTION LAW

In this article, we will discuss the topics of incomplete and defective work in construction law.

The construction contract is essentially a type of contract for work, as defined in Article 470 of the Turkish Civil Code, stating that it is “a contract in which the contractor undertakes to create a work and the employer undertakes to pay a fee for it.”

The contractor in a construction contract is the natural or legal person or persons who undertake to create the construction and deliver it to the employer. The employer, on the other hand, is the natural or legal person or persons who entrust the construction work to the other party in return for the fee they undertake to pay in the construction contract.

In a construction contract, it is not sufficient for the contractor to simply complete the construction for performance to be achieved.

For it to be said that the performance has been completed, the performance must be fulfilled in the manner agreed upon in the contract and the delivery must be made on the date agreed upon in the contract. In case the performance is not fulfilled in the manner agreed upon in the contract, does not have the qualities agreed upon in the contract, and/or the delivery is not made, legal problems of incomplete and defective work arise.

INCOMPLETE AND DEFECTIVE WORK

Incomplete work is the situation where parts or qualities of the construction that should be present in accordance with the contract and/or appendices or that should be present in accordance with the principles of honesty have not been done at all or have been done incompletely by the contractor.

For example, in a construction, if windows have not been installed at all, if the roof has been left open, or if the construction has been made smaller than the area specified in the contract, incomplete work is involved. In cases where incomplete work is present, the employer has rights such as demanding the completion of incomplete work from the contractor, refraining from paying the fee, requesting permission from the court to complete the construction at their own expense, with the expenses being borne by the contractor, and demanding the payment of the price of the work left incomplete by not accepting the delivery.

If the price of incomplete work is demanded, it is assumed that the contract is still valid. “For the price of incomplete and defective work to be demanded, the deficiencies in the construction must be eliminated in accordance with the construction and the project; otherwise, the price of incomplete and defective work cannot be demanded.” (Court of Cassation 15th Civil Chamber, 01.03.2006, 7865, 1103.) The price of incomplete work can be demanded within the statutory five-year limitation period (TCC Art. 147/last) without being subject to the notice condition and notice period from the delivery date as a rule.”

Defective work is any deviation that arises in the characteristics of the delivered work compared to the characteristics of the work that should be delivered in accordance with the contract and the principles of honesty. In short, a defect is the difference between what is delivered and what should be delivered.

According to Article 471 of the Turkish Civil Code, “The contractor must perform the obligations he has undertaken with loyalty and care, taking into account the legitimate interests of the employer.” According to Article 474 of the TCC, regarding ‘determination of the defect,’ “After the delivery of the work, the employer must examine the work as soon as possible according to the normal course of business and, if there are any defects, must notify the contractor within a reasonable time. In the decision of the 14th Civil Chamber of the Court of Cassation dated 25.09.2012, it is stated that “An open defect is a defect that can be easily seen at the time of delivery of the work to the employer. In contrast, a hidden defect is a type of defect that manifests itself after the delivery of the work and during its use.”

According to Article 474 of the Turkish Civil Code No. 6098, after the delivery of the work, defects must be notified within a reasonable time when they become apparent, and if the work carries hidden defects, they must be notified when it is understood that they have occurred according to Article 477 of the same Code. The notification of defects can be made in writing or verbally. (14th Civil Chamber, 25.9.12; 9832/10921)”

The notification of defects in work contracts is not subject to a specific form and can be proven by any kind of evidence, even by witness statements. “… Because notifying defects in writing only provides ease of proof to the employer” (Court of Cassation 2.2.1979; 393/80; 15th Civil Chamber 16.9.1998; 2869/3367).

If the contractor has produced a defective work, lawsuits to be filed for this reason become statute-barred after two years in constructions other than real estate and after five years in real estate, and if the contractor has gross negligence, regardless of the nature of the defective work, the statute of limitations is twenty years.

In case of a defective work, the employer can exercise one of the optional rights in Article 475 of the TCC. This right can be exercised by filing a separate lawsuit, or it can be asserted as a defense in a lawsuit filed against the contractor.

In case of a defective work, if the construction is so defective that it cannot be accepted;

In constructions that are contrary to regulations and directives and require demolition as a legal requirement, the employer can terminate the contract and demand compensation for the demolition and repair of damages. If the defect requires an excessive expense to be corrected, a reduction in price can be made instead of correcting the defect. If the defect does not require an excessive expense, the employer can request the free repair of the work, with all expenses being borne by the contractor.

Additionally, compensation can be claimed according to general provisions. Because; Article 112 of the Turkish Civil Code explicitly states, “If a debt is not fulfilled at all or properly, the debtor is obliged to compensate the damages arising from this, unless he proves that no fault can be attributed to him.”

In recent years, due to the earthquakes that have occurred in our country, many immovables have been severely damaged and rendered unusable due to the constructions made by contractors as incomplete and defective.

It is possible for the owners of the immovable properties to file a compensation lawsuit against the construction contractor for the damages caused by these incomplete and defective works. In a recent decision of the Court of Cassation on this issue; ‘In the concrete case; it is understood that the property purchased by the plaintiff on 16/01/2008 was severely damaged and collapsed during the earthquakes that occurred on 23/10/2011 and 09/11/2011.

Although the court decided to reject the lawsuit on the grounds that the properties of the property subject to the lawsuit were evaluated in terms of hidden defects, no heavy fault of the contractor was determined, and it was evaluated as hidden defects, it is understood from the lawsuit file relied upon in the decision that the hidden defects mentioned in the lawsuit file are within the scope of Article 4/4 of the TKHK, and it is understood that it is evaluated whether there is heavy fault of the defendant and whether the defects occurred as a result of the defendant’s faulty actions.

In this case, it should be investigated whether there is gross negligence in the contractor’s fault, whether the defects occurred as a result of the defendant’s fraudulent acts, and a decision should be made accordingly, taking into account the fact that the plaintiff could not have known that the damage caused by the earthquake was due to the gross negligence or fraud of the contractor, and therefore, the notification and statute of limitations periods would not start running, the court’s decision was not correct, and it should be reversed.’ (Court of Cassation 3rd Civil Chamber’s decision dated 08.03.2022, with file no. 2021/8259 E. – 2003 K.)

If you have any question about incomplete and defective work in construction law, it would be beneficial for you to seek the assistance of a İzmir Turkish lawyer experienced in the field of construction law in order to reach remedies available to you.

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Att. Bilgehan DACİK

Att. Harun Ümit EREN

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