Building defects more than 6 years old. Liability: developer, architect. Humidity, insulation, waterproof, mould, etc.

Declaración de incapacidad en España.
We had a house built in Denia during 2004, where we now live. The property has some serious building defects; we have problems with the water collection (rainwater coming down from the roof), ventilation, and problems with the standard of the work. The builder did not properly insulate and waterproof the property, and there are now serious stains appearing caused by mould and although we have painted over these several times, the spots keep coming back. We even had to move out of the property in winter because it is impossible to live here when it rains. We have been told that because over six years have passed since the house was built, the developer is insolvent and this is not a structural problem, we cannot do anything about it and have lost the right to claim. Is this true? Do we have any chance of bringing a claim for these damages?

Dear reader,

First of all thank you for your E-mail.

Besides the Law known as a L.O.E (Ley de Ordenacion de la Edificacion), that we have previously mentioned in some of our articles, and which regulates in periods of 1, 3 and 10 years the responsibility of the persons part of the building process ( builders, architects, developers, etc) depending if the problems are of finalization-decoration, construction, or structural problem ( stability and resistance of the property); respectively; we must not forget that Article 1591 of the Spanish Civil Code remains in force and states that the contractor (builder) and the architect who directs the constructions works are liable for the ruin of the construction over a 10 year period.

In this sense it has been understood by numerous Courts precedents that “the concept of ruin that article 1591 refers to, includes any harm or serious impairment experience by a building, affecting or not its strength, exceeds by far the regular imperfections “.
Therefore, in your case, if the humidity at the house is seriously affecting its use to the extent that it actually prevents the habitability of the property and makes it useless for its purpose, which is of course to live in it, these can then be considered as fundamental flaws. It is therefore to be assumed that they are covered by the said article No. 1591.

As a consequence we can understand that the constructor as well as the architect will be held liable depending upon the seriousness of the humidity and construction defects, and whether these can ruin the property and also based on the fact that they appeared during the 10 years immediately following the completion of the work.

In this regard we must point out that the Supreme Court of Spain has determined that the technical architect assumes the role of collaborator specialized in construction, and assumes the activities of inspecting ,monitoring and managing the proper execution of the work as imposed by law, they are the professionals that should keep a more direct contact with the regular and immediate construction process while maintaining the necessary operational professional autonomy. So once their faulty supervision and control and use of the correct materials has been proven, their liability will be declared , in this sense we can find precedents like the Court Orders: SSTS of October 15, 1991, July 11, 7 and 12 November 1992, February 5, 1993 and December 2, 1994). They are responsible not only when the work is not done correctly or according to the project but also when defective management is conducted.(STS of 22 September 1994), extending to them the responsibility of the article 1591 (SSTS of October 14, 1994 and May 15, 1995) for the reason of poorly executed work or carelessness (SSTS of 29 November 1993 and February 2, 1996). “

As we always say in these cases, each scenario is different and must be studied in detail to be able to advice upon the legal situation, but in principle it appears that in your case the liability could also extend to the technical architect as well as the insolvent builder.

In general we must remind all our readers that in the event of them having problems like the ones we have mentioned in their properties, it is important to act as quickly as possible since there are periods of time given and deadlines to meet for any defects and problems. Once these limitation periods have expired then no claim can be made. It is also essential to contract the services of an architect who specializes in construction defects and building surveys, who will issue a report on which any further legal action can be based. It is essential that the lawyer and the architect who will issue the report, work closely with one another in such cases.

*The information provided on this article is not intended to be legal advice, but merely conveys general information related to legal issues.

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