HOW TO CLAIM DAMAGES FOR DEFECTS IN NEW HOME CONSTRUCTION
The delivery of a newly constructed home often presents specific issues that can manifest as defects in finishing elements or more severe damages or hidden defects.
It is common for the buyer to follow up on the home before the deed is signed. Days before taking possession, the buyer checks the state of the home. This is because homes usually have minor finishing defects at the time of completion.
Verification and Repair of Defects
Normally, during their prior visits, the buyer verifies the existence of minor finishing defects. The buyer and the developer agree to create a list of these defects, with a commitment from the developer to repair them. This repair can be done after the deed is signed, provided it does not cause inconvenience or harm to the buyer if they have already occupied the home.
Sometimes, the signing date of the deed is postponed to allow for the repair of these minor finishing defects. However, this is not usually the case because it is in the developer’s best interest to correct these defects with the buyers and not make it a problem.
Material Damages and Hidden Defects
Other times, unfortunately, the issue is not minor finishing defects but more severe material damages. In such cases, Law 38/1999 of November 5, on Building Regulation, establishes a system of guarantees for buyers. This law clearly establishes the civil liability of the agents involved in the construction.
Article 17 of this legal text assigns the builder a unique and exclusive responsibility for those minor material damages called finishing or completion defects. Claims can only be made against the builder and also the developer, who is always jointly responsible with any of the other involved agents, as will be explained later.
Thus, the buyer should know that finishing defects appearing within a year can be claimed according to the law.
Responsibility of the Involved Agents
The mentioned Legal Text, in its Article 17, establishes the responsibility of the involved agents for material damages due to defects that cause non-compliance with habitability requirements. In these cases, there is a three-year period to claim, during which these damages must appear. After these three years, liability can no longer be sought through this Legal Text but through the Civil Code and only against the ultimate responsible party, as will be discussed later, but not against the rest of the involved agents.
Additionally, the same article establishes liability for material damages caused to the building by defects that affect the foundation, supports, and other structural elements, compromising the mechanical strength and stability of the building. This is known as decennial liability, which can be claimed within a 10-year period. Once this period has elapsed, liability must be assumed by the developer under the Civil Code, if applicable.
Types of Damages and Claim Periods
Once the type of damages is established, their repair is guaranteed to the buyer. The law holds responsible the building agents involved in the occurrence of such damages or whose actions can be attributed to the occurrence of these damages.
There is extensive case law due to the numerous cases on the subject, so it can be easily determined who is responsible among the builder, project architect, supervising architect, technical architect, or other responsible parties, according to the concurrent damage.
Regardless of the responsibility that may fall on any of the building agents, it is essential to understand that the developer will always be responsible to the buyer for contractual non-compliance. Whenever there are damages, this non-compliance will exist, making the developer always responsible. This is independent of the concurrent liability with the rest of the building agents.
Legal Protection for the Buyer
The buyer must understand that they have extensive legal protection against these damages. The buyer’s only responsibility is to exercise their right to action within the cited periods. Actions must be taken within two years from the appearance of the damage, unless the period is interrupted by the pertinent judicial claims granted by law. These periods are 1, 3, and 10 years. It is important to understand that damages must appear within the period established by law. Actions expire two years from this appearance unless the prescription period has been interrupted.
Recommendations for the Buyer
It is crucial that when damages appear in the construction elements, the services of a lawyer are sought. A technical expert report should be immediately prepared to verify these damages, determine their origin, attribute the pertinent responsibilities, and quantify the damages.
Once this documentation is available, the lawyer should undertake the necessary extrajudicial actions before proceeding to court.
Carlos Baño Law Firm
We have succinctly explained a topic of significant impact in the courts. We hope this brief explanation has been effective and has helped readers who find themselves in such situations to take action in their defense.
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