HOW TO CLAIM DAMAGES FOR DEFECTS IN THE CONSTRUCTION OF A NEW HOME
The handover of a newly constructed home often presents a very specific problem, which may stem from defects in the finishing touches or from more serious damage or hidden defects.
It is common for the buyer to inspect the property before the closing. A few days before taking possession, they visit to check its condition. This is because, upon completion, properties often have minor defects in their finish or construction.
Inspection and Repair of Defects
Typically, during their preliminary visits, buyers check for certain minor defects in the finish or construction. They agree with the developer to draw up a list of these defects, with the developer committing to repair them. These repairs can be made after the deed is executed, provided they do not cause inconvenience or harm to the buyer if they have already moved into the home.
In other cases, it is agreed to postpone the closing date until these minor defects in the finish or construction have been repaired, although this is not the norm, as a well-run developer should address these issues with the buyers and ensure they do not become a problem.
Property Damage and Hidden Defects
Unfortunately, in other cases, the issue is not minor cosmetic damage, but more serious structural damage. In such cases, Law 38/1999 of November 5 on Building Regulations establishes a system of guarantees for buyers. This law clearly establishes the civil liability of the parties involved in the construction.
Section 17 of this law assigns sole and exclusive liability to the contractor for minor property damage related to the completion or finishing of construction work. Claims may only be filed against the contractor and the developer, who is always liable along with any other parties involved, as will be explained later.
Therefore, the buyer should be aware that any defects in workmanship that arise within one year are those for which they may file a claim under the law.
Responsibility of the Parties Involved
Article 17 of the aforementioned legal text establishes the liability of parties involved in construction for property damage resulting from defects or flaws that cause non-compliance with habitability requirements. In such cases, a three-year statute of limitations applies for filing claims, during which time such damage must become apparent. Once these three years have elapsed, liability can no longer be enforced under this Legal Text, but rather under the Civil Code, and only against the ultimately liable party, as will be discussed later, but not against the other parties involved.
In addition, the same article establishes liability for property damage caused to the building by defects or flaws affecting the foundation, supports, and other structural elements, thereby compromising the building’s mechanical strength and stability. This is known as the ten-year liability, which can be claimed within a period of 10 years. Once this period has elapsed, such liability must be assumed by the developer under the Civil Code, if applicable.
Types of Damages and Statutes of Limitations
Once the nature of the damage has been determined, the buyer is guaranteed compensation, and the law stipulates that the parties involved in the construction who contributed to the occurrence of such damage, or whose actions may be attributed to the occurrence of such damage, shall be held liable.
There is a well-established body of case law on this matter because there are so many specific cases, so it is easy to determine—depending on the nature of the damage—who is liable among the builder, the design architect, the architect in charge of the project, the technical architect, or other responsible parties.
Without prejudice to any liability that may rest with any of the parties involved in the construction process, it is important to understand that the developer will always be liable to the buyer for breach of contract. Whenever damage occurs, such a breach shall be deemed to exist, which means that the developer is always liable. This is independent of any concurrent liability with the other parties involved in the construction process.
Buyer Protection
What the buyer must understand is that they are fully protected by law in the event of such damage. All they need to do is exercise their right to seek liability within the specified time limits. Actions must be brought within two years of the damage occurring, unless the statute of limitations has been interrupted by the relevant legal claims provided for by law. These time limits are 1, 3, and 10 years. It is important to understand that the defects must appear within the time limit established by law. Claims are barred two years after the defects appear, unless the statute of limitations has been interrupted.
Recommendations for Buyers
It is very important to seek the services of an attorney as soon as damage to building components begins to appear. A technical expert report must be prepared immediately to document the damage, determine its cause, assign liability, and quantify the damages.
Once this documentation has been obtained, the attorney must take the necessary out-of-court steps prior to initiating legal proceedings.
Carlos Baño Law Firm
We have sought to provide a concise explanation of an issue that frequently arises in the courts; we therefore hope that, despite its brevity, this explanation has been helpful and has enabled readers who find themselves in one of these situations to take appropriate action to defend themselves.
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