Feb 102013
 
Building surveyor specialising in Spanish construction disputes

WHERE YOU SHOULD BE – WHILST YOUR CONSTRUCTION PROBLEMS ARE BEING RESOLVED BY AN EXCELLENT LITIGATION LAWYER IN SPAIN!

It is, of course, no secret that a significant amount of the building work in Spain undertaken during the long Spanish economic boom was defective.  There were quite simply not enough skilled workers around to ensure that construction was handled by time served professionals – and this was compounded by a lack of effective building control by the authorities.  Meanwhile, some greedy and irresponsible developers ‘cut corners’ to save money and speed up the completion of properties.

The result has been predictable – with many Spanish properties built over the past fifteen years suffering from a wide array of defects.  These range from extremely serious foundation issues (in some cases leading to property collapse) to more minor concerns over damp ingress or poor insulation (both for heat and sound).

Of course, if you own a new (built within the past 10 years) property in Spain that has building problems then you should have some form of cover through your Decenal Insurance Policy.  However, this does not cover every possible problem and can be very hard to activate, due to the reluctance of some insurers to honour their policy.

If you lack a Decenal Insurance Policy or your property defects are outside the scope of the Decencal (which is very restrictive in what it covers) then you will need to take action against the parties responsible for any defective work.  This is not as hopeless a task as it sounds – particularly as there are often parties with insurance that you can sue beyond just the builder who did your work (see: Liability for construction disputes in Spain).

But – how do you effectively enforce your rights or make a claim against someone or a company for defective building work in Spain?

Well, the two critical tools you will need are a first class building surveyor with practical experience of working in Spain and on Spanish construction problems.  It is this professional who can assess the nature of your problem; the blame attached and who can act as an independent witness and someone who can advise you of any remedial works.

The second ‘tool’ is an experienced litigation lawyer.  I stress the words ’experienced’ and ‘litigation’ because, for the most part, Spanish lawyers are not specialists.  Working as sole practitioners or in small firms, they tend to do anything – whether conveyancing, probate, commercial, criminal or litigation.  This is not helpful to someone needing expert advice and guidance and is never the case in the UK or the US.

To be effective a lawyer always needs to specialise and this is no different in Spain than it is in the UK.  So, you must find a lawyer who specializes in litigation (as a minimum) and preferably one who is an expert in construction related disputes – and you should do this as soon as you need the help of lawyer in Spain.

Certainly, time and again I come across people using general lawyers to undertake their construction related disputes, usually with disastrous results.  The last time I heard about this occurring I knew the Spanish lawyer involved.  The latter undertakes (poor quality) conveyancing and probably knows less about litigation than I do about composing an orchestral symphony.

FINDING A LITIGATION LAWYER IN SPAIN WHO SPECIALISES IN SPANISH CONSTRUCTION DISPUTES

If you need a litigation lawyer in Spain for your building dispute, then make sure that he/she is:

–          Fluent in English (or your own language)

–          Independent of any other party involved in your dispute (out of your immediate area, is not a bad thing)

–          Fully insured (check this and find out the amount of his/her public liability)

–          An expert in construction issues – and this you must double check carefully.  You can do this by asking your intended lawyer for references from clients he has dealt with as well as making relevant enquiries and searches on the Internet.

Of course, at Building Defects Spain we have both an enormously experienced building surveyor, who has specialised in Spanish construction issues – as well as a bilingual English speaking (and dual qualified) litigation lawyer, who is an expert on Spanish building disputes.

So, if you need advice or help then we can be of assistance and provide you with all the tools you need to resolve your construction problems in Spain or prosecute any legal action successfully.

If the above is of interest and you want more information or to discuss your issues then do contact us.

Nick Snelling

 

Jan 142013
 
Solutions to Spanish building problems

PROBLEMS WITH BUILDING WORK IN SPAIN – KNOW THE INDICATIONS AND HOW TO RESOLVE THE PROBLEMS QUICKLY AND EFFECTIVELY!

Of course, having problems with building work in Spain is not unusual. Construction, whether a project is big or small, tends to be contentious and, all too often, ends in a dispute – usually revolving around costs, timings or the quality of the work itself. The trouble is that the very nature of building work means that the stakes involved are usually high (whether financially or emotionally). This means that the earlier you can recognize potential problems and resolve them – the better!

The question is – how can you tell when your building project in Spain is going ‘bad’, once work has started, before real damage or expense is involved?

Well, there are some common factors that I have noticed, over the years, that can indicate that all is not well. Individually, they may not be important but several factors together normally mean that you need to take immediate, preventative action.

INDICATIONS OF POTENTIAL PROBLEMS WITH BUILDING WORK IN SPAIN

1. The erratic attendance of your builders. (Not to be confused where necessary drying times or bad weather justifies non-attendance)

2. Work not straight or level

3. Builders asking for money ahead of any agreed payment schedule (unless demonstrably justified e.g. where a supplier needs a deposit).

4. Changes to the agreed specification and plans (without your approval).

5. Reluctance by a builder to allow a surveyor or architect to inspect work.

6. Poor quality materials.

7. Sub-standard tradesmen/workers.

8. Statements that no permissions or licensing is needed (virtually all works, even minor works, typically need a license).

ACTIONS TO TAKE ONCE YOU BELIEVE YOU HAVE BUILDING PROBLEMS

1. Communicate with your builder. Onsite spoken communication is valuable, but confirm everything in written form (such as an e-mail), so that you have a record of your concerns and your builder’s response. Where possible, get your builder to sign against any agreed items. (A simple list, dated and signed by both parties).

2. Advise your architect

3. Seek advice/inspection from an independent building surveyor in Spain or an architect experienced in your type of work

4. Provide your builder with the professional’s written report and/or arrange a site meeting for all parties to attend (including the independent professional).

5. See a lawyer who specializes in building disputes

6. Ask to see evidence that permissions have been obtained, or at least understand the risks you are taking, if they have not.

Often, most issues to do with sub-standard building work in Spain can be sorted out on site, with the help of an experienced building surveyor or architect. Remember building surveyors are particularly good at identifying issues as well as spotting problems which could lead to structural (or other problems) later.  They also normally have the authority to convince a builder that the right way, is the only way.

The key, of course, is to act quickly to prevent matters going from bad to worse.  So, if you see any indications that your work is not proceeding as it should, do not allow matters to drift…

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

 

 

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

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

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