Defect Repair Lawsuit

A defect means a flaw arising from faulty construction—such as cracking, subsidence, breakage, or detachment—that is serious enough to impair the safety, function, or appearance of the building or facility.

This goes beyond a mere defect in appearance and has a serious effect on the function and safety of the building.

Furthermore, over the long term it may lead to a decline in asset value and to the infringement of residents’ rights.

In multi-family housing in particular, since the harm affects all residents, a response at the level of the residents’ representative council is called for.

Defects manifest in a variety of forms, as set out below.

In defect repair litigation, the ‘time at which the defect arose’and the ‘period of warranty liability’become the central issues.

Even for the same defect, the period of warranty liability varies depending on the applicable statute, and the period differs according to the type of defect, so accurate legal interpretation and classification are required.

The periods of defect warranty liability for major defect categories under each statute are as follows.

Under Article 9-2 of the Act on Ownership and Management of Aggregate Buildings and Article 5 of its Enforcement Decree, among others, warranty liability arises for the following defects, and differing periods of duration apply.

※ Applicable to defects arising before or after the date of use inspection (subjective/objective defects)

Under Article 59(1) of the Enforcement Decree of the Housing Act and its Annexed Table 6, the following defects are subject to defined periods of warranty liability.

※ Applicable to defects arising within the period of warranty liability counted from the date of use inspection, etc.

Under Article 36 of the Multi-Family Housing Management Act and Article 36 of its Enforcement Decree, warranty liability arises for a defined period for the following defects.

※ Applicable to defects arising within the period of warranty liability counted from the date of use inspection, etc.

Prior to litigation, a defect investigation (on-site inspection) is conducted through a specialized institution or appraiser in order to objectively confirm whether the defects actually exist and their scope.

Depending on the type of defect, the opinion of a relevant expert such as a structural engineer or architect may be required, and the results of this investigation may later be used as material for the court appraisal.

A procedure must be followed in which the contractor or seller is notified of the defects and formally requested to carry out the repairs.

Because this process later operates as an issue concerning ‘whether the repair request was complied with’ in the litigation, it is advisable to preserve a record of the request by means such as certified mail (content-certified mail).

Where the contractor fails to carry out the requested repairs or addresses them only in part, a lawsuit may be filed in the following ways.

In order to determine the cause, scope, and repair cost of the defects, the court designates an official appraiser and conducts an appraisal.

This process is a stage that becomes a central issue of the litigation, and the direction of the decision may turn on the appraisal result.

※ Where the appraisal result is considered improper, a request for correction or an additional appraisal may be requested.

The court renders judgment on the basis of the appraisal result, the evidence submitted, the contract, and the like.

At this point, where liability for the defects is found, the court renders a judgment ordering the contractor or other party to carry out the repairs or to pay monetary compensation.

In the case of multi-family housing, the right to claim defect warranty belongs to the sectional owner of each unit.

Accordingly, the residents’ representative council may bring a lawsuit against the contractor or other party only to the extent of the right to claim defect repair assigned to it by the sectional owners, and the final amount of compensation is likewise recognized only in proportion to the assigned share.

For the technical determination of the case, the court designates a certified appraiser and appraises the type and scope of the defects.

The appraisal is conducted centering on the following two standards.

The appraisal result recognized by the court becomes the base figure for calculating compensation.

In response to the appraisal result, the contractor advances defense arguments such as that it ‘constructed in accordance with the drawings’ or that the matter is a ‘minor issue within the tolerance permitted by the design.’

In this process the court may reject (reduce) certain items, and only the defect items ultimately recognized become the subject of the damages calculation.

Finally, the court may limit liability in consideration of the following circumstances.

In practice, it is common for liability to be reduced at a rate of approximately 5% per year according to the period elapsed up to the time of the defect appraisal.

Organizing the photographs in chronological order—at the time the defect arose, immediately before the lawsuit, and immediately before the appraisal—enhances their reliability and persuasiveness.

If matters repeatedly pointed out in the supervision log actually resulted in defects, they serve as strong grounds for proving the contractor’s negligence.

Before the court appraisal, the amount of loss may be roughly proved through a private appraisal report by an architect or engineer or through a contractor’s estimate.

In the case of multi-family housing, the following evidence is required.

If the standing requirements are not met, the filing of the suit itself may be rejected, so the number of deeds of assignment and the resolution procedure of the representative council must be prepared clearly without fail.

Our law firm includes a substantial number of construction-specialist attorneys registered with the Korean Bar Association, as well as specialist attorneys with an average of more than 10 years of experience.

Accordingly, we are able to provide legal support throughout the entire process relating to the occurrence of defects, from sending a certified letter of content (naeyongjeungmyeong) to filing a claim, applying for an appraisal, and bringing a claim for damages.

If responding to such matters on your own proves difficult, we encourage you to seek the assistance of a construction-specialist attorney to restore your rights.