CONSTRUCTION DAMAGE CLAIMS

There are several actions that the Spanish legal system attributes to the buyer of a property for defective or flawed works after the sale of the same, hence the issue of claims for construction damage.

Certainly, the system of liability for defects or defects in the building is complex. There is constructiondamage defective or vitiated which can only find an answer in Articles 1484 et seq. CC or Article 1124 CC, supported by Article 1101 CC, and others damage to the construction site can be combated by exercising either the actions of article 17 LOE or the actions of Article 1124 CC, and also in articles 148 and 149 of the revised text of the General Law for the Defence of Consumers and Users.

We will now give a brief description of these legal instruments, their characteristics and their application, which is never without controversy.

1.- LAW 38/99, NOVEMBER 5, 1999, ON BUILDING REGULATIONS. TIME LIMITS FOR CLAIMS. Claims for construction damage

Articles 17 and 18 of this Law regulate the system of guarantees as well as the responsibilities of those involved in the construction process.

This Law is the result of a desire to establish clarity in the differentiation of competencies and therefore the attribution of responsibilities of those involved in the construction process.

We are not going to make a study of this legal text but we are going to deal with important aspects of this regulation:

1.- The regime of Theliability for construction damages established in this legal norm is without prejudice to the contractual responsibilities that may be demanded from the parties involved in the construction of the building. construction process and without prejudice to those that may arise between them as a consequence of their contractual relations.

This legal norm establishes the imputation of responsibilities for constructive damages in favor of the buyer of a property, always saving the subsequent claim of the responsible parties against each other.

The buyer may demand from the seller in accordance with the purchase contract signed between them, and in accordance with articles 1,484 and following articles of the Civil Code and other legislation applicable to the purchase and sale.

2.- Only constructive material damages can be claimed through this Law, without any other type of damages, corporal, moral, etcetera.

3.- Without prejudice to the fact that through this regulation only material damages can be claimed, it is made clear that this liability system will be compatible with the liabilities established in other regulations.

This is of extraordinary importance because it implies that when we make a legal claim where, apart from claiming material damages, other types of damages are claimed, as we will see later on, it will be necessary to base such damages on other rules.

The injured party’s right to compensation will not be reduced to the amount of material construction damages, since the Law does not grant other rights of redress, although through other legal and contractual regulations, which may be claimed by moral damages, bodily injury, etc., as we shall see, although this legal text only guarantees compensation for the constructive material damages.

Compensation guarantees and their terms are regulated in this Legal Text, which establishes a ten-year term (ten-year liability), for damages caused by defects related to the foundation or other structural elements, and which pose a risk to the resistance and stability of the building.

Three years, for damage caused by faults or defects in the construction elements or installations that do not comply with the requirements of habitability.

The constructor shall also be liable for damages in the execution that affect the completion or finishing of the works within a period of one year.

5.- It is also worth noting the low number of time limit for the exercise of actions (statute of limitations) for judicial claims for constructive damages, since the action to claim constructive damages prescribes to the 2 years from their occurrence and within 2 years of their Thewarranty periods mentioned above, although it is very important to note that the computation of the warranty periods does not start from the sale of the property but from the reception of the work by the Developer.

Deadlines for construction damage claims

This time limit for judicial claims for damages in the construction of the Building Law is really short if we take into account the fact that the The most common types ofconstruction damage are 3-year warranties and the disadvantage that the beginning of the computation of the exercise of the action is alien to the buyer as it is the date of delivery of the work by the Builder to the Promoter.

6.- The civil liability shall be demanded individually or singularly for acts or omissions that are contemplated in that Law.

If liability cannot be singled out, or there is evidence of concurrence of liability, liability shall be jointly and severally. In this regard, the principle of burden of proof established in this Law must be taken into account, according to which there will be liability to the extent that it cannot be demonstrated that there has been no fault or negligence, which is not at all easy because it is like demonstrating that there has been a fortuitous event.

The Law establishes the liability of the promoter jointly and severally with the other agents involved.

7.- The exemption from liability is due to acts of God, force majeure, acts of third parties or by the injured party himself.

2.- ACTIONS DERIVED FROM ARTICLES 1.101 AND 1.124 OF THE CIVIL CODE. TIME LIMITS FOR LEGAL CLAIMS.

Liability for construction damage is also regulated and framed in the articles that form the heading of this section.

The purchaser of a property as a party to a contract may claim for breach of contract by the other party, in this case the developer, for compensation for damages caused as a result of the breach.

Even though in the reciprocal obligations and a contract of sale is one, the one who fulfills the contract is entitled to terminate the contract, in the cases of serious breach, in this article we only contemplate the compensatory action by the buyer and not the resolutory one but we must say that the damages that are contemplated would never be limited to the constructive damages but would also include the corporal, the economic, the moral, etc.

The time limit for the exercise of this action deriving from this breach prescribes after 5 years, so it is longer than the aforementioned.

But the reader should not be misled into thinking that the request for these damages based on breach of contract are incompatible with the damages established in the aforementioned Law on Building Management, because they can be requested cumulatively with the only difference being that they must be legally founded.

Therefore as a buyer I can not only claiming physical and moral damages apart from constructive damages in the same claim and simply on the basis of the different legal grounds, although this should not worry you either, because in our law the principle of iuris novit curia or, in other words, the obligation of the judge to apply the correct or adequate rule to the case.

3.- THE GENERAL LAW FOR THE DEFENCE OF CONSUMERS AND USERS, ROYAL LEGISLATIVE DECREE 1/2007, OF 16 NOVEMBER (ARTS. 147 TO 149). TIME LIMITS FOR LEGAL CLAIMS.

This Legal Text establishes a regulation within the responsibilities for services that concern the construction damage, and thus provides that the liability for constructiondamage is constructive defects and will always be demandable to the Promoter-marketer, meaning promoter who are professionally engaged in this activity and provided that the damage is not compensated by other laws.

It could be asked if this regulation has an application in the Courts and Tribunals as it would seem that both the regulation of the Law of Ordinance and the Civil Code would exhaust all possible contingencies.

There has been much discussion on the matter and we understand that from various points of view it is interesting to resort to consumer law as a legal basis for a legal claim.

So the first thing we have to take into account is that the action of the Law of Ordination prescribes in a short period of time has a short period of duration, hence if we had exhausted the time limit would have prescribed the action arising from the Building Act would always have the Consumer although with a notable difference and that is that the action that is regulated in the same would only affect the developer and never the rest of the technicians.

It could be asked whether, being within the term to exercise the action against the Promoter and other Technicians, the action contemplated in the Consumer Law could also be exercised, and the answer is also favorable.

The liabilities established through this Law will have a limitation of 3,005,060.52 euros.

This is a strict liability to the builder and the developer for damages caused to users in the correct use of the dwelling, which are not compensable by a specific legal regime. Liability under this article is limited to material and personal damages that are not covered by the LOE.

4.- ARTICLE 1.404 OF THE CIVIL CODE ON HIDDEN DEFECTS. TIME LIMITS FOR LEGAL CLAIMS.

Regarding this legal action that the buyer has, we refer to our extensive article already published in this page and to which we offer a link for your consultation if you wish.

5.- THE EXTRACONTRACTUAL FAULT OF ARTICLES 1902 AND 1909 OF THE CIVIL CODE. TIME LIMITS FOR LEGAL CLAIMS.

6.- WHAT HAPPENS WHEN THE DAMAGE TO A BUILDING OCCURS WHEN A THIRD PARTY HAS ACQUIRED THE PROPERTY FROM THE ORIGINAL PURCHASER?

It is clear that the third party was alien to the initial sale and purchase and so far we have seen in the preceding sections this unique assumption of the actions by the third party and alien to the initial contractual relationship of sale and purchase.

The Law, and in this case the Civil Code, establishes a similar system of protection by stating that if the damage referred to in the two previous articles results from construction defect, the third party who suffers the defect can only repeat against the architect, or, as the case may be, against the builder, within the legal time limit.

It is therefore clear that only the builder and the architect are recognized as being liable and not the other parties involved, such as the developer.

This precept is of varied interpretation, so we will omit it for the sake of brevity, but we will try to deal with this regulation in the near future.