FV-EXPERT: Dusty museum objects - getting paid by those who have dirtied them

In collaboration with Fastighetsvärlden. The article was first published here.

When a property owner carries out work in connection with a premises, tenants can be affected by disturbances and damages such as noise, dirt from construction dust, or other factors that hinder the tenant's use of the premises. In such cases, the property owner may be liable for damages to the tenant due to deficiencies in the premises.

The contractor is often the party responsible for the deficiencies in the premises and could have prevented them. The property owner may then have a so-called recourse claim against the contractor for compensation paid to the tenant.

There are often good reasons to avoid a legal process and instead try to reach an agreement, especially if there is an ongoing contractual relationship. If the liability for damages in the first instance, between the property owner and the tenant, has not been established in a legal proceeding, and the contractor questions whether the property owner was liable for damages to the tenant, the issue of liability to pay damages must be investigated and determined in the second instance, i.e., in the dispute between the property owner and the contractor.

In a recently announced judgment from the Svea Court of Appeal (T13155-20), the question of what is required of a property owner who, in a dispute with a contractor, wants to demonstrate that the property owner was liable for damages to the tenant was addressed. In the ruling, the property owner had compensated the tenant for museum objects being dirtied when the property owner had allowed a contractor to carry out work in connection with the leased premises. In the case, the property owner claimed compensation from the contractor for the amount paid to the tenant in damages, arguing that it was the contractor who had caused the contamination.

The Court of Appeal set a high standard for the property owner's evidence and did not find that the property owner had demonstrated that they were actually liable to compensate the tenant for the damages incurred. The court also did not find that the property owner had shown that the contractor had acted negligently, unprofessionally, or in violation of the contract documents. Since the property owner was not considered to have proven their liability for damages to the tenant or that the contractor had acted negligently, unprofessionally, or in violation of the contract documents, the contractor was not obligated to pay damages to the property owner.

The judgment emphasizes the importance of investigating and documenting any liability for damages before compensation is paid out. Business reasons may justify payment of compensation even in cases where liability for damages is not certain, with the risk that the liability cannot be passed on to the actual party responsible for the damage. However, thorough investigation, documentation, and analysis increase the opportunities to assess risks and obtain compensation.