Dec 052012
 
Suing for construction defects in Spain

MADE UP, CLAY RICH GROUND RESULTS IN SERIOUS PROPERTY MOVEMENT

All too often property owners in Spain do not take legal action for construction defects to their houses because their builder has either disappeared or gone bankrupt.  Needless to say, on the face of it, there is no point in taking legal action, if the other party has no money or cannot be found.

However, luckily for many property owners, the liability for construction defects in Spain does not always end just with the builder.  Indeed, depending upon the defects, a number of other parties may be responsible and these other parties may have insurance policies that cover the defects – in which case taking legal action in Spain can make very good sense.

So investigate matters further and seek professional advice, before you ‘accept’ the building defects you have and the ‘fact’ that you will have to pay for any necessary remedial works.

The question is who – apart from your builder – can be held responsible for construction defects to your property in Spain?

Well, depending upon the type of defects there are quite a few people or organisations, most of whom (importantly) should have insurance cover.

Of course, the most obvious organisation who may have a responsibility to you (if your property is under 10 years old) is your Decenal insurer.  A Decenal insurance policy is obligatory for any new property constructed by a builder and is an important, albeit not very comprehensive, protection against building defects.  Essentially, Decenal insurance only covers issues relating to structural stability and resistance but these are extremely important and, if these are your main problems, you should be covered, irrespective of what has happened to your builder.  However, bear in mind that damp ingress, though typically not covered, could affect the long term stability of structural elements and therefore might make for a viable claim – if prepared correctly.

Meanwhile, almost all building projects in Spain require the services of an architect, who is responsible for drawing up the plans of any building work and supervising the work undertaken.  Architects, needless to say, must have insurance cover.  Accordingly, if you have building defects, then your architect and/or architect tecnico is an obvious person to sue.

Geo-tech companies, of course, are responsible for ensuring that proper testing of the substrate below your property is tested to ensure that it is adequate for the type of property to be built there.  So, have they done their work correctly?  If not then they could be a target for legal action.

Sub-contractors can also be another source of potential successful litigation in Spain.  They may not have insurance cover but they may be worth suing, if it is their work that has contributed to the defects that your property is suffering.

In the meantime, suppliers of defective materials may be at fault.  Poorly made steel or bricks, plaster or tiles may mean that the person responsible for any defects is not the builder but perhaps a large company more than able to recompense you for your problems (or at least secure and rich enough to sue)

The obvious question is: how can you accurately apportion blame to people and organisations other than your builder (an essential pre-requisite to any successful legal action)?

There is, of course, no easy answer to this question, as everything depends upon the construction defects that you have.  It is also not always easy to establish who has actually caused the problems.

The windows and doors in your house, for example, may be sticking and appear poorly fitted and yet the reason for this may have nothing to do the window suppliers of fitters.  The problem may be that your house is moving due to subsidence or heave because of poor foundations (or because it should never have been constructed on the substrate below the property).  So, the fault is not that of the window suppliers and fitters but (possibly) of the geo tech company or architect…

Clearly, only very well qualified construction professionals can assess building defects – let alone apportion the blame for them.  This is not something that you should attempt yourself, not least because your assessment is unlikely to be accepted by a court.  It is also critically important that blame for the causes of construction defects in Spain are correctly assessed well before embarking on a court battle.

So, never give up hope that you cannot sue for a construction defect in Spain.  It may not be possible, of course, but (in my experience) most of the time there is an insured party involved and one that can be sued – once you have built a case to prove their liability for your construction defects.

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

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