Suing builders in Spain, litigation or dispute resolution?

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.

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.

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