What qualifies as a structural defect under India’s real estate law?

The Real Estate (Regulation and Development) Act, 2016 (RERA) obligates developers in India to rectify structural faults in a housing project on his own expense. The time cap to completely rectify such defects under the law is five years of giving possession. This is known as builder warranty in the housing industry.

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What does RERA say about the builder warranty?

Section 14 (3) of RERA says: “In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale relating to such development is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over possession, it shall be the duty of the promoter to rectify such defects without further charge, within 30 days. In the event of promoter’s failure to rectify such defects within such time, the aggrieved allottees shall be entitled to receive appropriate compensation in the manner as provided under this act.”

What is covered under the builder warranty and what is not?

Covered	Not covered
Defects due to design attributes of reinforced cement concrete (RCC) or structural mild steel (MS) elements of an engineered building structure	Damage due to act of god
Defects due to faulty or bad workmanship of RCC or MS work	Vandalism
Defects due to materials used in such RCC or MS work	Plastering hairline crack
Major cracks in masonry work that are induced as result of failures of RCC or MS work	Third-party warranty on products
Any defect established to have occurred on account of negligence, use of inferior materials or non-adherence to the regulatory codes of practice by the promoter	Defects caused due to normal wear and tear
—-	Damages caused due to natural calamities
—-	Damages caused due to fire accidents
—-	Wilful or accidental damages
—-	Damages caused due to tampering by the buyer

What qualifies as a structural defect that the builder warranty should cover?

The central version of the real estate law does not define the terms structural defect or defect in workmanship. However, several states have qualified these terms in their version of the central law.

The Haryana Real Estate (Regulation and Development) Rules 2017, for instance, defines structural defects as “actual physical damage/defects to the designated load-bearing elements of the building, apartment or unit like faults, breakage or cracks, appearing over time in elements, such as load bearing columns, walls, slabs, beams, etc., which can affect the strength and stability of the apartment or the building”.

The state RERA says that these could include:

Defects due to design attributes of reinforced cement concrete (RCC), or structural mild steel (MS) elements of an engineered (structurally designed) building structure
Defects due to faulty or bad workmanship of RCC or MS work
Defects due to materials used in such RCC or MS work
Major cracks in masonry work that are induced as result of failures of RCC or MS work
Any defect established to have occurred on account of negligence, use of inferior materials, or non-adherence to the regulatory codes of practice by the promoter

“The promoter shall not be liable for any such structural/architectural defect induced by the allottee, by means of carrying out structural, or architectural changes from the original specifications/design,” the Haryana RERA clarifies.

What does not qualify as structural defects in a housing project?

The Telangana RERA defines what does not constitute as structural defects.

Equipment like lifts, generator, motors, STP, transformers, gym equipment etc.) which carry manufacturer’s guarantees for a limited period
Fittings related to plumbing, sanitary, electrical, hardware, etc., having natural wear and tear
Allowed structural and other deformations including expansion quotient
The terms of work like painting etc., which are subject to wear and tear

“The promoter shall not be liable for any manufacturing or other defects of any branded inputs or fixtures or services of any third party mentioned in the schedule/annexure to this agreement, unless it results in structural defect,” says the Telangana RERA.

At a more cautionary note, it adds that the association of buyers must take the responsibility for proper safety, maintenance (including continuance of annual maintenance/insurance contracts/agreements) and upkeep of all fixtures, equipment and machinery provided by the builder. For this, the builder will not be liable after handing over. “The promoter shall not be liable for any defect or deficiency occasioned on account of any act or omission on the part of the allottee or any authority or third party on whom the promoter has no control,” it adds.

According to the Tamil Nadu RERA rules, the builder must rectify any structural defects as long as these are not the result of any commission or omission of the allottee; any damages caused due to the acts of god or natural calamities or fire accidents; any wilful, or accidental damages; and any damages caused due to tampering by the buyer. Defects caused due to normal wear and tear are also exempted.

“After a period of five years, no claim shall be entertained against the builder in respect of any alleged defective work in the apartment and/or project under any circumstances,” the Tamil Nadu RERA says.

“The liability of the promoter shall be restricted only to rectify/repair the above defects and any consequential damages will not be covered under this agreement. Structural defects shall not include plastering hairline crack. Third-party warranty on products shall be governed by the terms and conditions provided by the manufacturer of the respective products,” it adds.

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Sunita Mishra

An alumna of the Indian Institute of Mass Communication, Dhenkanal, Sunita Mishra brings over 16 years of expertise to the fields of legal matters, financial insights, and property market trends. Recognised for her ability to elucidate complex topics, her articles serve as a go-to resource for home buyers navigating intricate subjects. Through her extensive career, she has been associated with esteemed organisations like the Financial Express, Hindustan Times, Network18, All India Radio, and Business Standard.

In addition to her professional accomplishments, Sunita holds an MA degree in Sanskrit, with a specialisation in Indian Philosophy, from Delhi University. Outside of her work schedule, she likes to unwind by practising Yoga, and pursues her passion for travel.
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