Feb 022013
 
Construction related litigation Spain

WHEN THERE IS A DISPUTE – EMPLOYING THE RIGHT PROFESSIONALS IN SPAIN IS ESSENTIAL!

Do you have a construction dispute in Spain?  Is this something that is gradually driving you mad – and are you having trouble resolving your building problems?

Well, if your answer to any of the above questions is yes, then: you are not alone!

Spanish building over the past fifteen years has not always been good and many people find that they have building issues in Spain that are causing them considerable trouble.  Alongside this, of course, is the vulnerability that most people feel when they are involved in a dispute in a foreign country – where the laws are different and any resolution to a dispute can seem insurmountable.

The truth is that Spain is, in some ways, no different from any other country in that there are ways of resolving disputes and there are experienced professionals who specialise in providing this service.  Indeed, you would be crazy not to fight a dispute, if you feel that something is wrong and that the liability for any defect is that of another party.  In the case of a Spanish building dispute this could be anyone from the builder himself through to the architect, any sub-contractors and possibly the suppliers of materials.

In fact, it is a guiding principle of litigation lawyers in Spain that, almost always, there is someone other than just the builder who may be liable for construction defects.  This is a vital point, as many property owners despair of suing their Spanish builders because the builder concerned often has no money or insurance policy – or has disappeared.

Claiming against a builder in Spain                Liability for construction defects in Spain

The key to resolving construction disputes and taking court action in Spain, needless to say, revolves around two matters:

Firstly, you must make sure that you have competent professionals on your side and you should employ these as soon as your dispute starts to go out of control (or if you think that your builder is not doing or has not done your building work correctly).

The professionals you need (in the right order) are:

1. A properly qualified building surveyor.  The building surveyor must be fully qualified to practice in Spain and be a building surveyor not a marine surveyor or quantity surveyor etc.  He should also be fully insured and fluent in both your language and Spanish.  The latter is very important, should your building surveyor need to go to court on your behalf as an expert witness  – and can be vital, if he is to communicate effectively with your builders, either to obtain information or direct them in any (hopefully) agreed remedial works.

2. A litigation lawyer specialising in construction defects.  Spain is notorious for the lack of specialisation of its lawyers, with many Spanish lawyers very much general practitioners, with no real experience of the complications involved in court actions in Spain.  These require specialised knowledge and it is essential that, along with making sure your lawyer speaks English fluently (and is independent and insured), you make certain that he is an expert in Spanish litigation.  Preferably, you should try and make sure your lawyer specialises in construction litigation – as this is different from general contractual disputes.

Secondly, the moment you start to have a dispute (or think that a dispute is about to happen) then you really must gather evidence.  As we have written before here, no building project in Spain should ever start without a proper (preferably professionally prepared) Specification, Schedule of Works and Contract to evidence exactly what the project involves.  If this was not done then you must assemble as much proof as possible of what you and the builder agreed and intended– by way of any letters, e-mails or records of conversations etc.

Property movement in Spain                 Fully qualified building surveyor and litigation lawyer

Equally, during a building project make sure that you take photographs of what is happening and keep a close record of what occurs and any variations in the project (whether intended or otherwise!).  Once, you feel that things have gone awry then the importance of evidence gathering becomes ever more important.  Of course, ideally, you would call in an independent building surveyor straight away to do this.  However, in the meantime, make sure that you are actively gathering evidence that can be used, should a court action ever be necessary.

Certainly, as any experienced Spanish litigation lawyer will tell you – actual proof is vital, if you are to have any hope of winning a court case and court actions in Spain, in this regard, are no different than elsewhere in the world.

Needless to say, if you are involved in a construction related dispute in Spain now (or suspect that you may be heading that way!) then do contact us, as we are specialists in this area and we can help you.

Indeed, we may well be able to resolve your dispute well before it has to go to court.  You would be amazed what an authoritative building surveyor’s report in Spain can do – backed up by the authority of expert litigation lawyers, who are specialists in Spanish construction problems!

Nick Snelling

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