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 022012
 
Property Structural defects in Spain

GEOTECHNICAL INVESTIGATION OF GROUND UNDERNEATH A PROPERTY – ESSENTIAL WORK!

Unfortunately, property movement in Spain is not uncommon.  There are many reasons for this, including defective geotechnical surveys and inadequate foundations – either of which can lead to a Spanish property suffering from serious subsidence or heave.

Since 2000 all new build properties (with a few exceptions) must have a Decenal 10 year, insurance backed guarantee to protect property owners against structural instability.  As a part of the Decenal (sometimes known as the Builder’s Guarantee), a geotechnical study of the ground must be commissioned  by the builder, developer or architect to ensure that a plot is capable of providing a stable area for an intended property and ascertain the correct foundation system.

Pre-build bore testing (in two or more places on the plot) using a core drill, is undertaken by geotechnical experts to investigate the make-up of the ground substrates, level of firm ground, moisture content, propensity to shrink or heave etc. The core samples are then taken back to a laboratory for more detailed assessment, from which a geotechnical report is produced. The report may suggest the type of foundations most suited to the ground conditions – or even state that the ground is unsuitable for the construction of properties.   So the geotechnical report is extremely important and a vital component in the design and build of any property in Spain.

However, not all geotechnical reports in Spain are carried out to the same stringent standards and (in my experience) some geotechnical reports have a habit of going missing when there is a court action – indicating that the proper survey was not carried out or was known to be defective.

Of course, if your property suffers from subsidence or heave in Spain then this is a serious matter and one that, unavoidably, needs urgent attention.  In reality, you may be facing a minor problem (and sometimes not a problem at all!) – or you may have a serious progressive structural issue that requires considerable work to resolve. Most builders and architects involved in your build will state that ‘it’s normal settlement’ and ‘its nothing to worry about’ – often then filling the cracks. Do not accept this diagnosis before you have had a second and independent opinion!

Property subsidence in Spain

CORE SAMPLES FROM A GEOTECHNICAL SURVEY

The trouble is that any resolution of your property movement may be complicated by the need to start a court action to force your Decenal insurers to take any property movement seriously and pay for the necessary remedial works.  I would stress the ‘necessary’ remedial works because it is not unknown for insurers to try to minimise the work required to resolve any structural defects caused by movement.

Certainly, if you do have property movement in Spain then you should employ a professional surveyor to ensure that the reason for your movement is correctly identified.  This invariably requires a detailed investigation of a property (trial opening of foundation areas may be typical), proper crack monitoring (note that commonly used patches of plaster often applied by architects here are not reliable!) and an expert  geotechnical study is sometimes also required to check that the property has been built on adequate ground – and with proper foundations.

Meanwhile, taking court action in Spain is not for the faint hearted and must be done by a specialist litigation lawyer, who is familiar with construction litigation in Spain and can prepare a winning case, should court action be necessary.  This is certainly not something that a non-litigation lawyer should attempt and you would be very unwise not to seek expert help – given the very considerable amounts at stake.

At Building Defects Spain, we are specialists in property movement and building defects litigation.  This forms a considerable part of our daily work and we can provide you with unparalleled advice and assistance if you do have subsidence or heave.

So, if you think you have property movement in Spain then do contact us.  We can provide you with all the help that you need from an initial survey through to a geotechnical investigation (as required), a detailed report on the necessary remedial works and management of the corrective works.  We can also provide you with a specialist (bi-lingual and bi-qualified) litigation lawyer – who specialises in building defects legal actions in Spain and with whom we have worked closely for years.

Mark Paddon