Nov 272012
 
Construction problems in Spain

FOUNDATION DEFECTS ARE NOT UNUSUAL IN SPAIN

The question for any foreigner considering litigation in Spain is: can I take legal action in Spain effectively – without it costing a fortune and an age to resolve?

Most foreigners know very little about the Spanish legal system and, as a consequence, it is not uncommon for potential litigants to throw their hands in the air and avoid legal action – even though they have a winnable case.

Despite the commonly held fears of delay and expense, in reality, legal action in Spain is workable and the timings of major legal actions are generally not too far off those of the UK court system. In the latter, cases can take up to two or three years to bring to trial and this is, more or less, true of many court cases in Spain.  That said, timings can depend upon the individual court dealing with your case. Waiting lists and the volume of work that a court has to deal with vary not only from region to region but also within the court building itself. This means that where a local court house has a number of courts within it, waiting times will vary depending on the actual court that you draw.

As to cost – well, litigation is never cheap in any country. However, Spain is, as in so many other things, considerably cheaper than the UK in terms of legal costs. They are certainly not prohibitive and the legal professionals involved tend to be considerably cheaper than their North European counterparts.

Needless to say, just as in the vast majority of building booms, Spain has multifarious property disputes and construction problems.  Indeed, many foreign property owners now find themselves in having to seriously contemplate taking legal action through the Spanish courts to remedy their problems.

So, what should you be thinking of before you take legal action?

The essential first step is to equip yourself with a lawyer who specialises in litigation and specifically in the particular area of litigation involved. So, if you have a construction dispute then must make sure you go to a lawyer who specialises in this area rather than, for example, employment litigation or import/export disputes.

Many lawyers offer an initial consultation, free of charge, providing you with an opportunity to identify your legal standing and to assess whether taking further action is viable. Certainly, engaging with a lawyer at an early stage can lead to the resolution of a dispute before any legal formal action is necessary.  In any event, it invariably ensures that you are in the best possible position should you have to pursue the matter through the courts.

Winning a legal action, of course, is all about having sufficient evidence to prove the merits of your claim before a court. Your lawyer will assist you in assessing whether there is enough evidence to back up your claim, preferably this will be in writing in the form of a contract, letters, invoices, e-mails and experts reports etc.

Your lawyer will further be able to advise you on the chances of success and the possibilities of recovering the monies awarded to you on successful conclusion of an action.

Construction litigation is a specialist area and is certainly not `black and white´.

Indeed, many people contemplating an action against a constructor, mistakenly, see the question of a constructor’s solvency as a major stumbling block, yet fail to take into account that there are a wide range of parties involved in the construction process – that may be called upon to answer their claim. Typically in most modern building works such parties may include the promoter, the architect, the technical architect, the geotechnical company, and the actual construction company itself. The professional parties involved will normally carry professional indemnity insurance and, of course, the building itself may benefit from a Decenal (10 year) building insurance.

Although the process of pursuing a legal action may seem daunting, particularly when in a foreign country, the road is often not as arduous as it may first seem and can often provide you with an appropriate redress for your loss.

Without doubt, you should not just walk away from taking court action in Spain.  It can work and can be the only way to redress major problems.  Just make sure that you have right professional advice and that advice is from experienced professionals…

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

Nick Snelling

Nov 212012
 
Legal action against Spanish builders

SERIOUS CRACKING – COMMON TO OTHER HOMES IN THE IMMEDIATE AREA? IF SO KNOWLEDGE ABOUT HOW TO TAKE GROUP COURT ACTIONS IN SPAIN WILL BE VITAL.

Over the past few years we have dealt with a number of major group court actions in Spain relating to building defects in Spain.

In fact, some of the cases have been very high profile and have involved large estates, where many of the properties have suffered from serious structural problems.  One estate that we have dealt with, for example, was built upon a clay substrate that was unstable.  This has caused the total collapse of a number of properties and considerable movement in a lot of others.  As you can imagine, this has been very distressing for the property owners concerned, who have seen their dream properties crumble before their very eyes.  Worse still, for many, was the seemingly impossible task of taking successful legal action in Spain against a very large and powerful developer.  That is enough to test the strength of the hardiest property owner!

Of course, it is not uncommon for a number of properties on the same estate or street to have almost identical building defects in Spain.  This, needless to say, is because the same building company will probably have performed all of the work – normally under the same architect, using the same geotech company and with the same worker.  So, any mistakes or negligence will have been replicated on each and every property, to a greater or lesser extent.

Obviously, if a number of properties have the same problems than a group legal action in Spain against the builder or promoter is the sensible action to take.  Certainly, taking individual action can be difficult, particularly when you are facing a major company.  All too often the latter is very capable of outmanoeuvring individuals or wearing them down (financially or emotionally).

The benefit of group court actions in Spain is obvious.  Costs can be reduced and the strength of a case greatly enhanced by a number of property owners showing that they have similar problems.   Meanwhile, the support provided by a united front can mean that even a major developer is forced to take a matter seriously.

Obviously, cohesion amongst property owners with building related problems is important.  It is vital to have a plan, to know how to take action and the route to a successful resolution.  This is, understandably, beyond most people’s experience and so you will need to obtain professional help.

In fact, an intrinsic part of the service we provide relates to the advice and help that we can give to property owners, with regard to resolving their construction issues.  Of course, we can assess the actual structural problems and take legal action in Spain on your behalf.  However, we can also help you to organise a class action in Spain – along with advising you, right from the start, about how to approach forming a group action, the costs involved, the procedure, the legal position, the timings and the route to success.

So, if you have a construction problem in Spain and it is one similar to your neighbours then contact us.  We will be able to help you to resolve your problems in the most efficient and effective way possible – so that you can be compensated properly or have all the necessary remedial works correctly resolved.

Mark Paddon

Nov 142012
 
Subsidence and heave in Spain

HOUSE MOVEMENT IN SPAIN CAN BE DRAMATIC!

Few things are more disturbing for an owner of Spanish property than to have a house suffering from movement.  This is enough to send most people into a panic – and understandably so.

That said, I have also come across property owners who have house movement in Spain who have clearly been in denial for years.  This is, invariably, not sensible.  Like most things in life, the sooner a problem is faced up to and dealt with the better and, in the case of property movement, this is essential, for three reasons.

Firstly, although rare, property movement can lead to the collapse of a part or all of a house.  So, ignoring movement or signs of movement can end up endangering lives.

Secondly, swift remedial action can save time and money, as the damage to a building can be restricted by immediate action.

Thirdly, if a Spanish property is less than ten years old then you should be able to claim against your Decenal insurance policy (the Builder’s Guarantee in Spain).  This should mean that your Decenal insurer will bear the costs of the remedial work required to return your house to its proper state.  Of course, leave your notification to your insurer for too long and your Decenal policy may expire – leaving you to pay for all the work!

WHAT TO DO – IF YOU THINK YOUR HOUSE IS SUFFERING FROM MOVEMENT IN SPAIN

1.  Contact an independent building surveyor for an assessment

2.  Check to see if you have a valid Decenal policy

3.  Provide your Decenal insurer (if you have one) with a copy of your independent surveyor’s report

4. Formalise this process via an experienced lawyer or at least copy them in on your communications with the Decenal insurers.

There are many reasons why house movement in Spain occurs.  However, usually it is connected directly to the foundations (or lack of them!) upon which a house lies.  If foundations are not adequate then, by definition, a property will not be stable and move.  This is particularly true of properties built on steep slopes or upon ground that is inappropriate for housing (land fill sites being a good example).

Indications of property movement in Spain

Of course, before any construction of a house takes place there should be a geo-technical survey, the results of which should define the suitability of the ground for building and the type of foundations required for a given type of property.  This is essential, for example, where the substrate is clay –a substance that naturally expands and contracts (producing heave and subsidence, respectively) dependent upon its moisture content over the course of time.

Needless to say, building control during the long Spanish property boom was sometimes less than satisfactory.  Worse still, in some cases, geotechnical reports were falsified, so that properties could be built where the land was not suitable.  Meanwhile, on occasions, foundations for Spanish houses have not always ben correctly constructed.  Sometimes this has been caused by ignorance and carelessness on the part of builders and sometimes a deliberate ploy to save money (foundations can be a very expensive part of a house build!).

Professional assessment, remedial advice and litigation help for property movement

Not all cracks in a property, of course, are the result of serious movement.  Indeed, often cracks and ‘signs’ of movement in Spanish properties are the result of natural settlement and thermal drying – which is not something to worry about.

So, do not panic as soon as you see ‘signs’ of movement in your property.  They may be benign.

However, assessing whether cracks and ‘signs’ of movement are serious or not and represent a major problem is not something for anyone not specifically trained in structural surveying of properties.  Indeed, investigating whether and why a property is moving is a complicated process and one in which even minor cracks can sometimes be signs of significant underlying problems.

Our services – professional building surveyor and construction litigation lawyer

Fortunately, there are many ways of dealing with property movement and defective foundations.  There are excellent systems available to rectify property foundation problems and, in the vast majority of cases, houses that suffer from movement or poor foundations can be fully restored to their intended state.

So – do not think that the ‘end of the world’ has come when you have (or think you have!) property movement.  With the right help and advice, most problems can be sorted out to your satisfaction and the long term well-being of your property.

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

Mark Paddon