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

Jul 062012
 
10 YEAR BUILDER' S GUARANTEE IN SPAIN

10 YEAR BUILDING GUARANTEE IN SPAIN – ESSENTIAL FOR NEW HOUSES

If you are the owner of a new property in Spain, now may be the time to check your home carefully for any structural defects.  I say this because any newly built home in Spain should have a Decenal Insurance policy (10 year building guarantee in Spain).

So, if you have a Decenal Insurance policy then this may be close to running out – if your home in Spain was built during the early years of the Spanish property boom.

Needless to say, once your 10 year building guarantee in Spain expires you will be liable for any structural defects and remedying these can be extremely expensive.  Indeed, if ever you need insurance then it is for remedial structural works!  Almost by definition these can be complicated and the costs of rectifying a given problem can be far greater than those incurred during the original building process.

Certainly, the last thing that you should do is to ignore anything that looks as though it may indicate a structural fault.  Whilst minor cracking in all properties is common – anything more than that should be checked by a fully qualified (and independent of the builder!) professional.  This is particularly true if you see indications of movement (see Indications of Building Defects for examples and images of potential problems).

Decenal Insurance (10 year building guarantee in Spain) was made obligatory on the 6th May 2000 when a law ( La Ley de Ordenación de la Edificación’) was passed which made it obligatory for any new build property in Spain to have an insurance-backed, 10-year guarantee (similar to the NHBC scheme in the UK). In Spain, this scheme is called the seguro decenal and is often referred to as the ‘builder’s guarantee’ or just the Decenal.

Unfortunately, the Decenal is by no means as comprehensive as its UK (NHBC) equivalent (although the NHBC has been criticised for some of its ‘get out’ clauses!). However, you must be especially wary of relying on the Spanish Decenal to resolve all your new building problems in Spain. Indeed, the very term ‘builder’s guarantee’ is misleading. The Decenal essentially only covers issues related to structural stability and resistance. This leaves many other potential issues unprotected, such as leaking roofs or damp.

Nonetheless, it is important to have a Decenal policy and you should be extremely wary of buying a new Spanish property that lacks this cover, if it was built after May 2000.  Indeed, the lack of a Decenal may indicate that your property (or intended property!) may not be legal – so beware and make sure that your Spanish conveyancing lawyer checks this detail!!

In theory, Decenal insurers are legally obliged to pay out to the owner of a new build property in Spain if there is a proven structural stability issue that needs correction. This is irrespective of whether the fault is due to the builder or architect and whether the problem is because of negligence, faulty materials or processes.

However, typically decenal insurers are extremely tardy about honouring their obligations. Indeed, usually they refuse to accept a claim unless negligence is proven in court. This is because they know full well that if, for example, an architect is proved negligent, then any remedial costs will be covered by the architect’s own professional indemnity insurance.

So, although Decenal insurers are legally obliged to act, in reality,they rarely do so until forced to do so. This is despite the fact that they can potentially recover their costs from the builder or architect responsible for the defective or negligent work.

If you think that your Spanish property may have structural problems or building defects then contact us.

We can then assess whether your suspicions are right or not.  If your worries prove to be correct then we can prepare a formal report and then help you make your claim against your Decencal insurers.  Should there be a dispute then our legal department can provide you with the help you will need to process your claim and we can then manage the remedial works required.