Hidden defects in the purchase of second-hand properties are one of the most common claims when, after signing, serious damp appears, structural issues emerge or major installation failures arise that were not detected during viewings. The law protects the buyer, but it does not turn an old home into a new one. A claim succeeds when the defect is truly hidden, serious and pre-existing at the time of sale, and the buyer has acted with due diligence.
Hidden defects in purchases of second-hand properties and older
What hidden defects are
A hidden defect is a serious flaw in the property sold that was not detectable at first glance at the time of purchase and that, had the buyer known about it, they would not have bought it or would have paid a lower price. In property transactions, this usually refers to construction pathologies, structural defects or major failures in installations that substantially reduce the value or the use of the property.
The main regulation is found in the Spanish Civil Code, specifically Article 1484, which establishes the seller’s obligation to respond for these defects. For a defect to be considered a hidden defect, it must meet three key requirements.
Requirement 1. It must be hidden
The defect must be non-obvious, meaning it should not be visible or detectable with a normal inspection. The law excludes the seller’s liability when the defect was evident or when the buyer, due to being an expert or professional, should have detected it easily.
This is crucial for second-hand homes. If there were clear indications during the viewing, the judge may consider that this is not a hidden defect but rather an anomaly that required further investigation before buying.
Requirement 2. It must be serious
The defect must make the home unfit for its intended use or reduce its value to such an extent that, had the buyer known, they would not have purchased it or would have offered a lower price. A minor, aesthetic issue or normal ageing-related wear is not enough.
In practice, seriousness is supported by an expert report describing the pathology, its impact on habitability or safety and the repair cost, as well as the decrease in value it causes.
Requirement 3. It must be pre-existing
The defect must exist at the time of sale, even if it appears later. This includes latent defects that were already there but surface shortly afterwards, for example after a rainy season or when an installation is put into use.
If the problem clearly arises later due to improper use, a subsequent renovation or an event unrelated to the sale, the claim loses its basis. That is why the expert report usually focuses on proving that the cause of the defect predates the transfer.
Key aspects in the sale of second-hand homes
Although the rule does not expressly distinguish between new and used homes, case law has made clear that the level of expectation cannot be the same for a newly built property and for one that is decades old. The buyer of a used home assumes a certain risk derived from the passage of time.
The main argument against many claims is that many “defects” in an older home are not hidden defects but expected consequences of ageing: material wear, small settlement cracks, outdated installations or mild and visible damp.
Wear and tear due to use and time is not a hidden defect
A home that is 30 or 40 years old may present imperfections typical of its age. Expecting it to be “as new” often fails in court. Courts weigh the age, the price and the general condition known at the time of purchase.
The practical idea is simple: if the defect is compatible with the age of the property and does not seriously compromise habitability or safety, it will be hard to classify it as a hidden defect.
The threshold is lower for used homes
Courts have repeatedly stated that certain flaws that would be unacceptable in a new build can be considered normal or tolerable in a used home. Age, use and the evolution of construction standards affect the assessment.
This does not mean the buyer is unprotected. It means the buyer must prove that the defect exceeds what is normal and sits in the realm of a serious anomaly, not merely pending maintenance.
The buyer’s diligence is crucial
If there were perceptible signs during viewings (visible cracks, damp smell, old stains), the buyer has a duty to investigate before signing. Case law often denies the “hidden” nature if the buyer noticed the anomaly and still purchased without going deeper, even if they did not know the exact cause.
A buyer is expected to carry out a reasonable inspection and, if there are doubts, seek advice from a technician before purchasing. That prior diligence makes the difference between a strong claim and a dismissal for lack of hiddenness.
Prior indications and red flags
A particularly sensitive point is that of indications. Even if the root cause is not visible, if there were signs that a diligent buyer would have investigated (cracks in key areas, suspiciously fresh paint, mould in corners, swollen skirting boards), the court may conclude that the defect was not “hidden” in the legal sense.
That is why, before claiming, it is advisable to review what was seen during the viewing, what was said to the seller or the estate agent, and what was recorded in messages or emails. Those details often decide the case.
“As is” sale in second-hand homes
In second-hand contracts, the “as is” clause is common, stating that the buyer acquires the property in its current condition. This clause does not automatically eliminate liability for hidden defects, but it reinforces the idea that the buyer assumes the general state of preservation inherent to the property’s age.
In practice, this clause is often used to argue that certain issues were acceptable and expected. Therefore, if a claim is pursued, it is important to focus the case on a serious anomaly that goes beyond normal wear.
What may be a hidden defect in an older home
For a claim to succeed in an older home, the defect must be a serious anomaly that cannot be explained by ordinary ageing. The core is proving that the issue compromises use, health or safety in a relevant way.
Below is an indicative summary of examples commonly seen in practice.
What is usually not considered a hidden defect
- Old plumbing or electrical installations that are still functional.
- Settlement cracks consistent with the building’s normal behaviour over the years.
- Mild and visible damp due to condensation or capillary action.
- General wear of flooring, joinery or tiling.
These scenarios often fall within the “risk assumed” when buying a used property. If the buyer also visited multiple times, saw the condition and did not request a technical inspection, the claim becomes more difficult.
What could be considered a hidden defect
- Serious structural problems not detectable at first glance, such as significant pathologies in foundations or structure compromising stability or safety.
- Defects deliberately concealed, for example severe damp covered with fresh paint or superficial fixes intended to hide the pathology.
- Non-functional or dangerous installations whose defect was not detectable with an ordinary inspection and that require significant repair.
In these cases, the expert report is central. It must explain why the defect was hidden, why it is serious and why it was present before the sale.
Available legal actions
If the existence of a hidden defect is proven, Article 1486 of the Spanish Civil Code provides the buyer with two main routes, known as edilician actions. The choice depends on the severity of the defect, the buyer’s interest in keeping the property and the economic feasibility of repair.
In practice, the strategy is built around the expert report and a realistic outcome calculation: repair cost, time, impact and the possibility of negotiation with the seller.
Redhibitory action
This allows the buyer to terminate the contract, return the property and recover the price and expenses. It is a more drastic route and requires a defect serious enough to justify that the buyer would not have purchased had they known.
In real estate, it is not always the most practical option due to the complexity of reversing the transaction, especially where there is a mortgage, subsequent works or third parties involved.
Quanti minoris (estimatory) action
This allows the buyer to request a proportional price reduction, usually equivalent to the repair cost “as assessed by experts”. It is the most common action in hidden-defect disputes involving used homes, because the buyer often prefers to keep the property and obtain financial compensation.
Proper quantification is important: it is not about asking for generic figures, but about technically justifying the cost and its relationship to the defect.
Time limit to claim and evidence needed
Hidden-defect actions are subject to a short time limit counted from delivery of the property. That is why it is essential to act quickly, document the issue as soon as it is detected and commission an expert report without delay.
The burden of proof lies with the buyer. Without a strong technical report and basic documentation (contract, listings, communications and photographic records), the claim is often weakened.
The expert report as the central piece
An effective expert report typically includes: description of the defect, location, probable cause, the pathology’s age, why it was not detectable with an ordinary inspection, severity, associated risks and an economic valuation of repair and/or depreciation.
When the home is old, the expert report must rigorously distinguish between normal wear and a serious anomaly. That distinction often decides the judgment.
The view of Carlos Baño Abogados
Although the law protects the buyer of a second-hand home against hidden defects, the claim is demanding. Success depends on proving that the defect is not normal age-related wear, that it was truly hidden for a diligent buyer and that it makes the home wholly or partly uninhabitable or reduces its value in a relevant way. In practice, everything turns on evidence, especially a solid expert report and a clear timeline from purchase to detection of the defect.
If you need to assess a hidden-defect claim in a second-hand purchase, we can review your documentation and advise on a realistic strategy. You can visit us at our office or Find us on Google Maps.
