Mark Paddon

Jul 102012
 

BUILDING DEFECTS IN SPAIN: DRAMATIC FAILURE DUE TO PROPERTY HAVING BEEN BUILT ON CLAY SUBSTRATE – WITH INADEQUATE FOUNDATIONS

Fortunately, Spanish builders do have general responsibilities imposed upon them by Spanish law when building new properties in Spain.  These are obligations that go beyond the requirement to have an insurance backed 10 year building guarantee (the Decenal).

Indeed, the Ley 38/1999 de 5 de Noviembre (‘Ordenación de la Edificación’) states that a builder has an obligation to:

  • Correct identified snagging points (normally assessed 15–30 days prior to signing the Escritura/Completion)
  • Correct just about any defect (other than normal wear and tear) during the first 12 months following completion of the build
  • Rectify functional issues that affect the enjoyment or habitability of a property for the following two years (i.e. a builder’s responsibilities run for the first three years after completion of a new build property in Spain)

Unfortunately, the devastating fall in the property market in 2008 has meant that many builders simply fail to respond to requests to correct issues. Alternatively, sometimes they buy time by purposefully botching repairs in a somewhat naive effort to get past the three-year deadline. Accordingly, you should avoid ever paying all that you owe to a builder until each and every defect on new building work has been remedied.

The trouble is that some building defects in Spain may not be obvious or easy to identify.

So, a wise buyer always will employ an independent building surveyor to conduct a pre-completion survey of a new build, particularly if they have any suspicion whatsoever that there may be problems – albeit ones that they cannot precisely define!

Without doubt, in a property market downturn it is the building industry that suffers grievously. This means that many builders go bankrupt or are left struggling with reduced manpower and a lack of skilled workers.

As a consequence, trying to get building defects in Spain rectified can be extremely difficult or, at worst, impossible. To state the obvious, if a builder goes out of business then no amount of badgering will work – and if he has no assets, then any court action is likely to be a waste of time and money.

Your builder may have had all-risks building insurance in Spain to cover defects outside the strict scope of the decenal. However, this is rare and any enforcement likely only after a court hearing. That said, it is worth noting that early presentation of a court demanda should prevent a builder from closing down his company.

If a new property does not meet its specification or is uninhabitable, then this may merit the reversal of your agreement to buy. However, doing so is far from risk free and invariably it will involve a court action. This can be slow and costly and may even go to appeal.

As always, if you think you may have construction problems in Spain with your property then quick action is required – both to obtain a qualified professional assessment of any possible defects and (if necessary) the involvement of a lawyer to enforce any required remedial work.

Time is of the essence and the small cost involved in having a pre-completion survey from a professional surveyor can be invaluable and ‘nip in the bud’ building defects that could be costly to remedy and take years to get completed.   Certainly, once you have fully paid a builder then it can be very difficult to enforce any obligations unless you are backed by a properly qualified surveyor and have an experienced building dispute lawyer to hand.

So, if you are concerned about your new build property in Spain or are becoming embroiled in a dispute with your Spanish builder then contact us.  We can help you to resolve your problems and provide you with the authoritative and experienced help that you need…

 Mark Paddon