New-build warranty: what it covers and how long it lasts

Usually people come to this issue after signing the acceptance certificate, when defects appear in a flat or non-residential premises: cracks, leaks, cold penetration, uneven screed, ventilation that does not work or problems with utility networks. The owner approaches the developer and hears in response that the period has expired, that it is operational fault or that the matter should be addressed to the management company.

The article examines what the new-build warranty covers under the Law of the Republic of Kazakhstan on shared participation in housing construction, how its statutory and contractual periods relate, how it differs from a warranty letter, in what order claims are made and which documents confirm the defects. The grounds for refusal, the role of expert examination and the division of responsibility with the management company are considered separately.

What the new-build warranty means and what it covers

The new-build warranty is the developer's obligation to remedy defects that arose through no fault of the buyer within a period after the flat is handed over. It follows from the contract on shared participation in housing construction and the Law of the Republic of Kazakhstan «On shared participation in housing construction» and confirms that the property complies with the design documentation, construction norms and the terms of the contract. The right to a warranty claim arises after the acceptance and handover certificate is signed.

The warranty on a flat differs from warranties on goods and works: for goods the manufacturer's warranty period applies, for contracted works the period agreed by the parties. In shared construction the period is established by law and is not shortened by the developer. It covers structural elements, utility systems and finishing, if the developer carried it out.

• Load-bearing structures: foundation, frame, walls, floor slabs.
• Enclosing elements: roof, facade, windows and balcony doors.
• Utility systems: water supply, heating, sewerage, electrical wiring.
• In-building equipment: lifts, pumps, metering units.
• Finishing carried out by the developer — within the terms of the contract.
• Built-in appliances — under the manufacturer's warranty stated in the data sheet.

Warranty periods for a new-build: law and contract

The developer must observe the statutory warranty period under the Law on Shared Participation in Housing Construction regardless of the terms of the contract. The contract may set a longer period but cannot shorten it below the statutory one; a term reducing it does not apply.

In the contract it is important to check what the warranty covers and from what moment its period runs.

The shared-participation holder is entitled to demand free-of-charge rectification of defects within the warranty period; signing the acceptance certificate without comments does not deprive them of the right to report latent defects that appeared later. The developer is liable for the quality of the property throughout the warranty period.

What to bear in mind when assessing warranty periods:

• The statutory minimum always applies, even if the contract does not mention it.
• The contract may only extend the warranty period, not reduce it.
• The contract may set different periods for different elements of the property.
• The start of the period is determined by law and the contract — check what yours states.
• Latent defects discovered during the warranty period give the right to rectification.
• A contractual term that worsens the position of the shared-participation holder does not apply.

What exactly the warranty on a new-build covers: structure, utilities, finishing

The developer's warranty is tied to the elements of the building and types of work, not to the flat as a whole. The Law of the Republic of Kazakhstan on Shared Participation in Housing Construction sets the framework, while the specific list and periods are in the contract.

Load-bearing structures — foundation, walls, columns, floor slabs — are the basic frame of the building. The warranty covers defects caused by the developer or contractor: cracks, settlement, deviations from the design. Operational responsibility arises on redevelopment and breach of maintenance rules.

Utility systems — water supply, heating, electrical wiring, ventilation, sewerage — are accepted under a certificate and maintained by the management organisation. The warranty covers latent defects of installation and equipment, not wear and blockages. Windows, doors and roof: the warranty depends on whether they fall within the developer's scope or are classified as common property.

• load-bearing structures: defects of design, materials and installation — developer's scope
• utility systems: latent defects of installation and equipment — developer's scope
• roof and facade: leaks and damage caused by construction — developer's scope
• windows and doors: manufacturing defects and installation errors — developer's scope
• finishing within the scope handed over: defects of the developer's work — developer's scope
• blockages, wear, redevelopment, violation of maintenance rules — operational responsibility

The specific list and warranty periods are determined by the contract and design documentation; on acceptance, the condition of each element is recorded.

When does the warranty on a new-build start

The start of the warranty period is determined by law and the contract: usually this is the commissioning of the building or the handover of the apartment under the acceptance certificate. Under the Law of the Republic of Kazakhstan on Shared Participation in Housing Construction, the developer is responsible for the quality of the housing, so the date from which the period runs must be checked against the contract before signing the acceptance certificate.

The key document is the acceptance and handover certificate. The certificate records the date of handover and the condition of the apartment, even if it is signed with comments. Evading acceptance or signing late affects the calculation of the period, but does not cancel the warranty. State registration of ownership does not affect the running of the period: it confirms title, not the quality of the property. Understanding when the warranty starts determines whether the shared-participation buyer has time to claim free rectification of defects. If a claim is made after the period expires, the developer is entitled to refuse, and proving that the defect is a construction defect becomes harder. The warranty start date must be recorded in writing.

• from the date specified in the law and the contract — usually the commissioning of the building or the acceptance and handover certificate;
• where the unit holder evades acceptance — under the rules of the contract; evasion does not extend the warranty;
• where the acceptance certificate is signed with reservations — the defects listed in the certificate are remedied within the agreed period;
• state registration of ownership does not affect the calculation of the warranty period;
• the warranty covers structural elements and engineering systems within the period established by law and the contract.

Warranty on a new-build and the developer's letter of guarantee: what is the difference

A statutory warranty on a new-build arises from the shared construction participation agreement and the provisions of the Law of the Republic of Kazakhstan on Shared Participation in Housing Construction. It exists independently of any additional documents from the developer and does not terminate when the owner of the flat changes, within the applicable period.

A developer's letter of guarantee is a voluntary undertaking over and above the requirements of the law: confirmation of readiness to remedy defects, extend the claim period or carry out works not covered by the contract. The strength of the letter is determined by its content: an undertaking, a period and an addressee make it a document that can be relied on.

The difference is not in form but in the source of the obligation: the warranty follows from law and the contract, while the letter follows from the developer's own declaration of intent. The letter does not cancel or narrow the statutory warranty: terms that worsen the position of the unit holder have no force.

• Statutory warranty: the basis is the contract and the Law of the Republic of Kazakhstan on Shared Participation in Housing Construction.
• Letter of guarantee: the basis is the developer's voluntary undertaking.
• The statutory warranty cannot be cancelled or narrowed by a letter.
• The letter is effective only within the terms expressly stated in it.
• For a dispute, the letter must be in writing, specific and signed.
• Both documents are kept by the unit holder and used when making claims.

A warranty dispute is won by the person who recorded the defect in writing and on time, not by the person who merely discovered it first.

How to make warranty claims on a new-build: procedure and documents

A warranty case begins with the discovery of a defect. The unit holder is entitled to require the developer to remedy defects free of charge within the warranty period. The defect must be recorded in writing at the time of discovery.

The developer must then be notified in writing. The notice is drawn up in two copies: one is handed to the developer's representative against signature, the other is kept with a note of receipt. If the developer evades receipt, the notice is sent by registered letter with acknowledgement of receipt to the address stated in the contract.

After the notice, the parties inspect the property and draw up a defect report: a description of the defect, the place and time of discovery, and the positions of the parties. The developer's refusal to sign the report does not deprive the unit holder of the right to rely on it in resolving the dispute.

Time limits for remedying defects under a new-build warranty

The time limit for remedying defects under a new-build warranty is determined by the shared construction participation agreement and the design documentation, while the general rules are set out in the Law of the Republic of Kazakhstan on Shared Participation in Housing Construction. The developer is responsible for the quality of the housing within the warranty period, calculated from the moment established by law and the contract. If a defect is identified, the participant is entitled to require its remedy free of charge.

The period allowed for remedy depends on the nature of the defect and the terms of the contract: it is usually fixed in the shared construction participation agreement, otherwise a reasonable period applies, taking into account the volume of works. The claim is made in writing and delivered against a note of receipt or sent by registered letter with acknowledgement of receipt.

• Inspect the property and record the defects in writing, with photo and video evidence.
• Deliver to the developer a claim to remedy the defects, stating a reasonable period.
• Keep proof of sending: the note of receipt, the postal receipt, the acknowledgement.
• Once the period has expired, draw up an inspection report with the involvement of an independent expert.
• Send a repeated pre-action claim demanding a proportionate reduction in price or reimbursement of expenses.
• If refused, prepare a statement of claim for the court, attaching the correspondence and the expert's report.

Developer's refusal of a warranty claim on a new-build: grounds and arguments

If the developer refuses a warranty claim on a new-build, check the stated ground on its merits. Most often they cite operational defects: the defect arose from improper use of the premises or utility systems. This argument works only if the developer proves a causal link between the owner's actions and the damage.

The second ground is interference by the owner: redevelopment, relocation of utilities, replacement of windows or plumbing. If the works affected the unit where the defect is, the refusal may be justified. The burden of proving that the repair was the cause lies with the developer.

• Reliance on the operational nature of the defect without evidence of a causal link
• Reference to interference by the owner — redevelopment, replacement of utilities, finishing works
• Assertion that the warranty period has expired
• Classifying the defect as normal wear and tear
• Absence of any contact from the owner before the inspection
• Reference to the fact that the defect does not prevent use of the premises

Expert examination under a new-build warranty: when it is needed and what it shows

A construction and technical expert examination of a new-build is commissioned when a dispute arises between the shared-construction participant and the developer over the causes of a defect and whether it falls within the warranty obligations. Shared construction in Kazakhstan is governed by the Law of the Republic of Kazakhstan on Shared Participation in Housing Construction, which sets warranty periods for structural elements and engineering systems. If the developer refuses to remedy the defect, citing improper use or the actions of the participant, the dispute cannot be resolved without a specialist examination.

An expert examination under a new-build warranty is carried out both at the initiative of the participant before going to court and by order of the court within civil proceedings. In the first case, the specialist records the defects and their probable causes; in the second, answers the court's questions. An independent examination of a warranty case matters when the developer disputes the claim and asserts that the defect arose after acceptance of the flat.

• When the developer refuses warranty remediation and cites the operational nature of the defect
• When the defects need to be recorded before starting repairs or redevelopment in the flat
• When the dispute over construction quality has been referred to court and specialist knowledge is required
• When the cause of leaks, cracks or freezing of structures is not obvious without an examination
• When the developer disputes the claim and asserts that the defect arose through the fault of the participant

New-build warranty and the management company: drawing the line of responsibility

The developer's warranty covers the structure of the building and the engineering systems forming part of the common property. The OSI, a simple partnership or the management company takes the building into management and is responsible for maintaining that property after handover. The developer remedies construction defects; the servicing organisation ensures day-to-day operation.

The developer's warranty covers defects in the common property where they arose from a breach of construction standards, and not from wear and tear or improper use. The participant is entitled to require the developer to remedy defects free of charge within the warranty period. If the damage arose from flooding, improper repair or the actions of residents, the management company or the OSI is liable.

Disputed cases require a joint inspection with an act drawn up.

Court dispute over warranty on a new build: prospects and evidence

A dispute over warranty obligations for a new build is heard by a court in civil proceedings. If the developer refuses to remedy defects or reimburse expenses, the owner is entitled to file a claim. The claims arise from the shared construction participation agreement and the Law of the Republic of Kazakhstan on Shared Participation in Housing Construction. The claim is filed at the location of the defendant; a consumer rights claim may also be filed at the claimant's place of residence.

The general limitation period under the Civil Code of the Republic of Kazakhstan is three years, but for claims regarding the quality of works the law may establish special periods, so the date the defect was discovered is important to record in writing. The owner proves the existence of the defect and the approach to the developer, the developer — the absence of fault and proper quality of works. The warranty remains in force for the entire period established by the contract and the law.

• Apartment acceptance act with recorded remarks
• Written claim to the developer with proof of delivery
• Conclusion of an independent construction and technical expert examination
• Photo and video recording of defects, correspondence with the developer
• Share participation agreement and payment documents
• Forensic construction and technical expert examination ordered by court ruling