Oct 252012
 
Expert in Spanish construction litigation

SUING BUILDERS IN SPAIN – DETAILED STUDY OF PILE FAILURE

Building disputes in Spain are, sadly, not uncommon.  Indeed, hardly a day goes by when I do not receive a call or e-mail from someone who has some sort of construction problem in Spain.

In fact, as I have stated before, the construction of new properties in Spain over the past few years has been very variable.  I have certainly seen fine work but, all too often, I come across defective buildings in Spain.  Quite frankly, the level of skill used in Spanish construction has not always been good and this has been made worse by lax (or sometimes no!) building control.

Of course, it is not only new buildings that have suffered from poor work.  The same is frequently the case with reform projects.  The latter are notorious for going over-budget and it is far from unknown for property owners to end up with a quality of construction and finish that bears no resemblance to what they expected.  Equally, timings for completion of the work can sometimes go from the sublime to the ridiculous!

So, what can you do when a building project in Spain goes wrong?

Speak to your builder

Well, if you are dissatisfied with your building work then the sooner you try to resolve the problem the better.  Certainly, never allow work to continue, if you feel that there is something wrong with the way it is being conducted.  If you do (and you are present most of the time) then you may be considered as someone who has willingly accepted what is being done.

If you are not happy, my advice is always to first tackle the builder and see if you can resolve the problem that is concerning you.  This is an obvious action and usually sorts out most problems, many of which arise quite simply from misunderstandings.

Obtain independent, expert advice

However, if your approach to your builder is ineffective then it is essential that you call in an independent construction expert – such as a properly qualified (and insured in Spain!) building surveyor or structural engineer.  This is the only way that you will be able to authoritatively find out whether there is a real problem or not – how serious that problem is and how best to remedy it.

Make sure, of course, that your building surveyor provides you with a written report, as you may need this should you have to take legal action and it is invaluable as a document to give to your builder.

Frequently, the building surveyor or structural engineer will be able to resolve any Spanish construction problems with the builder.  Direct communication between the two is often, I have found, enough to isolate a problem and ensure that a builder understands what is wrong and how to resolve it (and the consequences of not doing so!).

Certainly, the value of an independent, objective expert should not be underestimated, particularly when matters have become heated.  More often than not, at this stage any building defect dispute can be resolved to the satisfaction of all concerned – allowing the project to continue or remedial works to be undertaken.

Construction problems in Spain

TOTAL COLLAPSE OF CRITICAL RETAINING WALL

Needless to say, if your building surveyor or structural engineer has made recommendations to complete or undertake defined works then you should make sure that he supervises these works to ensure that they are properly completed.

Note that taking action early is important e.g. when some monies are still being withheld – or at least when your builder is still financially secure.   Equally, be aware that a genuine lack of sufficient funds will typically result in no action from your builder, even if he agrees that corrections need to be made!

Litigation and suing builders in Spain

Of course, there are times when a building dispute in Spain goes beyond any easy resolution.  For any number of reasons, you can find that you and the builder (even with the help of a building surveyor’s report) cannot come to agreement.  This happens particularly when a builder has no money (as mentioned above).

Furthermore, in my experience, it is actually rare for a builder to put things right properly and a history of inadequate repairs and ‘cover up’ work is common. However, by Spanish law you must give your builder the opportunity to put things right.

Naturally, it is perfectly normal to lose confidence in a builder who repeatedly proves to be untrustworthy or incompetent and the line as to just how much opportunity you should give them is ill defined.

Needless to say, if you just cannot get a satisfactory resolution from your builder (and many owners waste money and time in an attempt to do so) then you will have to face the unpleasant prospect of legal action in Spain.

Problem with Spanish builders

SIGNIFICANT PROPERTY MOVEMENT

In fact, all is not always lost at this stage.  Frequently, a builder can be ‘brought to heel’ (and perhaps even find some money) once he has received a detailed letter from a litigation lawyer threatening legal action.  Few people really want to face a court action and the reality of this occurring can concentrate the minds of many constructors – together with the minds of architects and even insurers, who might prove to be liable or jointly liable as the case unfolds.  The latter point is particularly important.

Your builder may have no money and possibly not be worth suing but this will often not be true of fully insured  professionals or companies associated with your building work, such as the Geotech firm responsible for your property or the architect who supervised the project.  Equally you may be covered by a Decenal insurance policy.

So, the fact that your builder may be penniless does not mean that you should despair of taking legal action and suing builders in Spain – although you will need a decent lawyer and construction professional to assist you in assessing the potential liability of others involved in your project!

Not everyone will buckle under the threat of litigation in Spain and you may well have to actually launch an action to obtain compensation for defective building work in Spain.  This, of course, is an unfortunate direction to take but sometimes unavoidable.

If you do decide to take legal action then you must make sure that the lawyer you go to is a specialist litigation lawyer – and preferably one who is an expert in Spanish construction litigation.  This is vital, as many lawyers in Spain are not specialists and should not be entrusted with the responsibility of conducting a major contentious case.

Naturally, taking legal action in Spain is a last resort but you should realise that the Spanish legal system does work and that court actions, more or less, take as long as in the UK.  By this, I mean that should your case not settle before the trial then you should expect a trial to take place some two or three years after issuing proceedings.  There may then be an appeal, which could take some 18 months after that to resolve.

So, be aware that legal proceedings in Spain (like almost anywhere in the world) take time and, of course, money to prosecute.  However, this may be the only way that you can resolve your dispute.  In that case it can be your only realistic course of action and one that should (if you have a good case) be worthwhile.

Of course, if you want to know more – or need help in resolving a building/construction issue or if you are thinking of suing your builders in Spain – then please do not hesitate to contact me.

Mark Paddon

 

Oct 082012
 
Building defect insurance claims in Spain

FAILING ARCH WITH SIGNIFICANT STRUCTURAL CRACKING

Making insurance claims against a builder in Spain is not always as simple as it may appear and certainly ensuring that you are successful in any building defect claim – can be fraught!

Sadly, our experience has been that Spanish property owners making a claim against their builders can be faced with a number of complexities.  Firstly, of course, you have to be able to prove that your property has a defect and that it is the responsibility of your builder.   To do this, you will almost certainly need an independent report from a specialist building surveyor able to analyse the building defect and to assess why and how it has occurred – and who is to blame.

It is unwise to rely upon your builder’s assessment, and reporting from the project architect is also often unreliable (typically playing issues down) and a report from an unqualified professional will be completely unpersuasive to an insurance company, let alone a Spanish court.

Of course, you may be covered by your ‘builder’s guarantee’ or Decenal in Spain, if you own a property built within the last ten years.  However, Decenal insurance companies in Spain can be very tardy at paying out for property construction related claims and will often also attempt to downplay the extent of the repairs needed; possibly leaving you with future problems or remedial work that is inadequate.

Indeed, forcing Decenal insurance companies to act properly and to honour their commitments is not for the faint hearted and invariably requires the employment of a specialist surveyor backed up by a litigation lawyer (separate from the insurance company!).

Obviously, in Spain, many foreigners have difficulty asserting themselves properly because of their lack of Spanish and poor knowledge of the Spanish legal system.  This can make processing a claim for defective construction in Spain very difficult and it can prolong the process considerably.

The answer, of course, is to use a bi-lingual building surveyor and bi-lingual lawyer both of whom specialise in insurance claims against builders in Spain.  This is a service that we can provide, backed up by years of experience of tackling construction problems throughout Spain and the islands of Spain.

In fact, we have attended Spanish courts many times on behalf of clients and have successfully prosecuted actions where properties have suffered from a range of defects – from those that have been relatively minor to complete structural failures.

Interestingly, we have also undertaken a lot of work for insurance loss adjusters and so we know how they work, how to present our reports to best effect and where appropriate how to place effective pressure upon insurance companies – so that they take your claim seriously.

If you are concerned about your Spanish property and think that you have a building defect or construction problem then do contact me.  We can make sure that your justified insurance claims against a builder in Spain are processed to maximise your chances of success, providing a one-stop service for you that will remove much of the worry and stress you may feel.

Mark Paddon

Oct 022012
 
Property Structural defects in Spain

GEOTECHNICAL INVESTIGATION OF GROUND UNDERNEATH A PROPERTY – ESSENTIAL WORK!

Unfortunately, property movement in Spain is not uncommon.  There are many reasons for this, including defective geotechnical surveys and inadequate foundations – either of which can lead to a Spanish property suffering from serious subsidence or heave.

Since 2000 all new build properties (with a few exceptions) must have a Decenal 10 year, insurance backed guarantee to protect property owners against structural instability.  As a part of the Decenal (sometimes known as the Builder’s Guarantee), a geotechnical study of the ground must be commissioned  by the builder, developer or architect to ensure that a plot is capable of providing a stable area for an intended property and ascertain the correct foundation system.

Pre-build bore testing (in two or more places on the plot) using a core drill, is undertaken by geotechnical experts to investigate the make-up of the ground substrates, level of firm ground, moisture content, propensity to shrink or heave etc. The core samples are then taken back to a laboratory for more detailed assessment, from which a geotechnical report is produced. The report may suggest the type of foundations most suited to the ground conditions – or even state that the ground is unsuitable for the construction of properties.   So the geotechnical report is extremely important and a vital component in the design and build of any property in Spain.

However, not all geotechnical reports in Spain are carried out to the same stringent standards and (in my experience) some geotechnical reports have a habit of going missing when there is a court action – indicating that the proper survey was not carried out or was known to be defective.

Of course, if your property suffers from subsidence or heave in Spain then this is a serious matter and one that, unavoidably, needs urgent attention.  In reality, you may be facing a minor problem (and sometimes not a problem at all!) – or you may have a serious progressive structural issue that requires considerable work to resolve. Most builders and architects involved in your build will state that ‘it’s normal settlement’ and ‘its nothing to worry about’ – often then filling the cracks. Do not accept this diagnosis before you have had a second and independent opinion!

Property subsidence in Spain

CORE SAMPLES FROM A GEOTECHNICAL SURVEY

The trouble is that any resolution of your property movement may be complicated by the need to start a court action to force your Decenal insurers to take any property movement seriously and pay for the necessary remedial works.  I would stress the ‘necessary’ remedial works because it is not unknown for insurers to try to minimise the work required to resolve any structural defects caused by movement.

Certainly, if you do have property movement in Spain then you should employ a professional surveyor to ensure that the reason for your movement is correctly identified.  This invariably requires a detailed investigation of a property (trial opening of foundation areas may be typical), proper crack monitoring (note that commonly used patches of plaster often applied by architects here are not reliable!) and an expert  geotechnical study is sometimes also required to check that the property has been built on adequate ground – and with proper foundations.

Meanwhile, taking court action in Spain is not for the faint hearted and must be done by a specialist litigation lawyer, who is familiar with construction litigation in Spain and can prepare a winning case, should court action be necessary.  This is certainly not something that a non-litigation lawyer should attempt and you would be very unwise not to seek expert help – given the very considerable amounts at stake.

At Building Defects Spain, we are specialists in property movement and building defects litigation.  This forms a considerable part of our daily work and we can provide you with unparalleled advice and assistance if you do have subsidence or heave.

So, if you think you have property movement in Spain then do contact us.  We can provide you with all the help that you need from an initial survey through to a geotechnical investigation (as required), a detailed report on the necessary remedial works and management of the corrective works.  We can also provide you with a specialist (bi-lingual and bi-qualified) litigation lawyer – who specialises in building defects legal actions in Spain and with whom we have worked closely for years.

Mark Paddon