Building Code - Roller Shutter Warranty

Hello everyone,

the handover of our developer house was 4 years and 9 months ago. Just before the warranty period expires (agreed is the Building Code), unfortunately a roller shutter is defective (strap operation): it is gradually breaking apart between two slats. Of course, we first contacted the developer. He no longer wants to fix the defect free of charge because it is a mechanical damage that could have been caused by normal wear and tear or misuse. Furthermore, he states that the 5 years only apply to defects for which the developer is directly responsible. Specifically, the regulation does not mean that "the use and lifespan of individual parts that require special maintenance or care or regularly have a shorter service life must also last 5 years."

Is this correct? Or is he still obliged to fix it?

The developer has built around 80 single-family houses here and roller shutters are currently breaking down one after another in the neighborhood. Unfortunately, the manufacturer is now bankrupt, so the developer cannot simply pass on the costs.

Thank you very much for any help!

Standard response from lawyers, Type A: "Depends on...!"

The quotes from the construction company are not entirely unreasonable, but they miss the point here.

In my opinion, two things are crucial here:

1. For a warranty defect, the defect must have already been "present" at acceptance, meaning it must have been latent and dormant the whole time, only becoming apparent later.

If the item was once okay and only wears out over time, this would not be a warranty defect!

(The reference to maintenance is also irrelevant here; for that, concrete maintenance instructions must have been verifiably provided).

2. After acceptance, the burden of proof changes for

a) the existence of a defect ("whether" there is a defect)
b) and that the defect was already present at acceptance ("when" the defect occurred).

After acceptance, the (procedural) burden of proof (in case of dispute, which is apparently the case here) unfortunately lies legally with the client, i.e. with you.

The crucial question / factual issue now is:
Was the defect already present back then?

Well, presumably only an expert can answer that, if at all. An indication in favor is that all the roller shutters of the 80 houses are simultaneously breaking down. It would therefore be good if an intact specimen from another manufacturer could be found. Then it might be possible to achieve a second reversal of the burden of proof - now in your favor - via the so-called "prima facie evidence."

If the construction company does not want that, then only a deadline, delay, lawsuit, or (before that) a judicial evidence preservation procedure can help. Only a court can then interrupt the statute of limitations.

If necessary, join forces with other affected parties and go to a specialist lawyer.

In the old apartment I had the case but they were about 20 years old there.

In the time it would have taken me to write the post, a professional would have removed this lamella and pushed it together with the other one. Costs about 120-150€

Is it worth a legal dispute to you?

Thank you very much for the answers. Of course, the matter is not worth a legal dispute to me. But I also have nothing to give away. The very detailed answer from Otus11 is already the basis: I can’t get anywhere with simple arguments, but I would have to rally neighbors and take action against the developer together. In my opinion, that is too much effort, since an exchange only costs about €160. The tip with the slat is of course good. I need to check right away if the roller shutter is long enough for that.

Removing one is the easiest solution. However, the problem is usually that the next defective slat is not far behind!