Building defects appearing in your property?. What you can do, who is responsible.
In this scenario it is really important to determine the year of the construction of the property. The law known as the L.O.E (Ley de Ordenación de la Edificación, Law 38/1999 of 5th of November 1999), applies for new properties which licenses have been applied for after 5th May 2.000, this date is then important to determine the applicable legal regime.
If the building license was applied for before 5th May 2.000, the general law will be applied, which means that the builder will be responsible for the defects that make a property become a ruin ( ruin: for building defects), if this takes place during 10 years from the finalization of the construction, an identical responsibility can be attributed to the architect for certain faults in the works. This is stated at Article 1591 of the Civil Code.
This same article foresees that if the problem arises from a breach of a specific clause or agreement signed by the parties, the liability in this case could be up to 15 years.
It is important to be aware that the Spanish Courts, in some precedents, have determined that defects can also include the functional defects, i.e. where the defects prevent the dwelling being used as a house and affect the habitability of the property, even where it is structurally sound. This is known as the functional Ruin.
If the building license was applied for after 5th of May 2.000, then the said L.O.E will apply.
This Law states more specific periods of liability, and distinguishes between the different kinds of problems: structural, construction and completion problems. It sets out a liability or guarantee periods for the “structural problems” of 10 years from the completion of the works; liability for the “construction or installation problems” of 3 years, and 1 year for post completion problems. Any action should be started as per the article 18 of this Law within 2 years from the moment when the damages arise, as far as they appear during the said guarantee periods..
This LOE also obliged the developer to take an Insurance Policy insuring against the said liabilities. In some ways this is similar to the NHBC 10 year Certificate issued for newly built properties in the UK.
This topic is, unsurprisingly, the subject of some legal discussion questioning whether the LOE revoked Article 1591 of the Civil Code. Some Courts have held that the 2 regimes are applicable at the moment - it is therefore important to be aware that these rights might apply to you even if you are not the first owner.
If you have problems in your property or in your community, you may have the possibility to claim against various parties involved in the building process even if your builder has disappeared. If you are in any of the mentioned, scenarios you may be able to claim against the architect, technical architect, Insurance Company (Ten Year Insurance Policy), etc.
If you have noticed problems or defects with your property, then do not hesitate to contact us.