I bought a house 3 years ago from a developer in Denia (Alicante); unfortunately, significant cracks have appeared in the house. We have engaged the services of an architect, who has visited the property and is preparing an expert report on the defects of the construction. According to the architect, the problem is that in the design and construction of the property the slope of the plot and the soil on which the house is built (composed of a type of clay that moves) was not properly taken into account. I would like to know who is responsible and who I should contact about this problem, whether it should be the developer, builder or architects, etc. and what steps I need to take to solve the problem.
Thank you for your letter.
Thank you for your letter.
As mentioned in previous articles for construction works in respect of which planning permission was requested after 5th May 2000 (as appears to be your case), in addition to the civil code, the Law of Construction Planning (L.O.E. 38/1999 November 5, 1999) will also apply.
We understand that missing or incorrect inclusion in the draft of the work of the slope of the plot and / or soil material, problems, other circumstances etc. are within the responsibility of the senior architect ( arquitecto superior) as it is he who, as author of the project, should assess the quality and type of soil and make decisions for proper construction. His involvement in the process of building a home is treated as a professional and technical guarantee, as to ensure that the buildings are built correctly, avoiding risks, and overcoming the problems (as in your case), the land may have.
Therefore, the senior architect should have taken into account the circumstances of the plot, but not only that he should also have been able to foresee whether these would affect future construction and if so he should have taken the necessary steps to design a solution that would avoid what unfortunately appears to have occurred.
The Provincial Court of Alicante (Audiencia Provincial de Alicante) has already made a decision in this type of case and in the Court Order number. 592/2009 of 2 November, quoting other decisions of the Supreme Court of Spain ( Tribunal Supremo) stated “the prior examination of the soil, verifying it or at least checking its analysis and subsequent geological survey personally is a fundamental obligation of the senior architect’s obligations that in any case are demanded by the dignity and competence inherent to their profession”
The fact that the senior architect is responsible does not mean that you cannot claim against the other persons involved in the construction process as per the L.O.E. such as the technical architect, contractor, insurance company, etc. All possibilities should be studied.
Regarding the next steps to be taken, we recommend that first of all you inform your current architect that he should place “markers” that indicate at least the date, length and width of the cracks and makes photographs and includes all this information in his report so that you can keep track of how the cracks evolve, increase in size etc. This can be very important and interesting to determine the seriousness of the damage.
Once you have the report from your current architect it should determine the extent of the problem and, if possible, its causes and who is responsible. He should also provide you with positive solutions to adopt.
We understand that you must see a lawyer to determine whether your case is legally eligible to sue, your lawyer must develop a legal strategy and decide against who you can and should claim. It is not always advisable or possible to claim against all the parties involved in the construction process: developers, builders, architects, insurance company, a company that performed the geotechnical report, etc..
Sometimes a decision is taken not to claim against some of these parties, particularly if it is clear that they have no responsibility for the problem, or if they can cause a delay in the procedure, etc. It is not necessary to claim against all of them, even if they are responsible.
As in previous articles, we recommend a visit to our office or to another lawyer to examine your case thoroughly. It is sensible to involve the lawyer from the beginning, even before contacting the developer or hiring an architect, to avoid errors that could affect possible prosecution.
If this is your case or of someone you know do not hesitate to contact us.
* The information contained in this article does not constitute legal advice, being simply a general overview of legal issues.