Construction defects in a new home

After the delivery of a new home, the buyer may encounter issues due to the appearance of defects or flaws that were not previously visible.

Prior to the signing of the deed, it is customary for the buyer to check the condition of the home and ensure that it has been completed according to technical standards…

Technical inspection of the property

An inspection is carried out with the seller’s company technicians, to which the buyer can bring their own technician, although it is not always necessary. During the inspection, possible defects are checked on-site. It’s important to note that minor finishing defects may occur, which should not escalate as long as both parties agree in writing on a list of defects to be rectified before signing the deed.

Post-inspection issues

The main problem arises when defects appear that were not visible during the inspection and become apparent later.

In these cases, we are dealing with hidden defects or poor workmanship or construction, which are subject to specific legal regulations.

It is important to distinguish between defects in a first home and in a second home, as there may be confusion on this matter.

Hidden defects in the purchase of a home

In the sale of second-hand properties, the seller must be liable to the buyer through a remedy action for hidden defects, as established by Article 1.484 of the Civil Code. The buyer has the option to request the annulment of the purchase or a price reduction based on the severity and importance of the defects, with the said article setting the criteria for determining which option applies.

Claim options

The buyer has a double possibility, but must not confuse them when making the claim, as it is not possible to exercise both options simultaneously. The buyer must choose one or the other based on the importance of the defect.

Legal limits for hidden defects

The article establishes the limits for each action: the first is reserved for defects that make the property “unsuitable for the intended use,” while the second is for defects that reduce its usability to such an extent that, had the buyer known about them, they would not have bought the property or would have paid less. Therefore, it is crucial to prove the defect’s importance to choose between the two options, which can only be done through a technical expert report.

The action available to the buyer is either to rescind the contract or reduce the price proportionally, as judged by experts, according to Article 1.488 of the Civil Code.

Prescription period for hidden defects

The main issue with exercising legal actions for hidden defects is the short time frame for doing so, as according to Article 1.490 of the Civil Code, the buyer has six months from the discovery of the defects. This is a period of expiration, meaning that it cannot be interrupted.

Construction defects and liability of building agents

In cases of first-time occupation buildings, the primary liability falls on the developer, who promotes the construction and sells the newly completed home to the buyer, obtaining profit from the sale.

Developer’s responsibility

According to Article 9.1 of the Building Regulation Law (Law 38/1999 of November 5), “A developer shall be considered any person, whether natural or legal, public or private, who, individually or collectively, decides, promotes, programs, and finances, with their own or external resources, the construction works for themselves or for their subsequent sale, delivery, or transfer to third parties under any title.”

The developer’s liability is established in the relevant articles of the Civil Code, and Article 17.1 states, “Without prejudice to their contractual responsibilities…” when referring to the general responsibility of building agents.

The same law, in Article 17.3.2, establishes that the developer will be jointly liable with the other agents involved for any material damages caused by construction defects or flaws.

This is because the developer’s liability as the seller is contractual, derived from the sales contract, as reflected in the Building Regulation Law.

Therefore, Article 17.3.2 establishes that regardless of any other building agent’s responsibility for construction defects, the contractor will always also be responsible.

This is due to the contractual liability assumed with the buyer.

Liability of other building agents

In addition to the developer, professionals involved in the construction process, such as the project architect, supervising architect, technical architect, contractor, etc., will also be liable if the defects can be attributed to negligence in their work.

Prescription periods and warranty periods in construction

On this matter, it is essential to differentiate between the liability action against the developer, which is governed by the Civil Code and thus has a five-year limitation period, and the action that must be exercised if it derives from the Building Regulation Law. Let’s take a closer look.

Differences between prescription and warranty periods

According to the Building Regulation Law, two types of periods are established: the warranty period, which is the time frame during which the damages must occur, and the prescription period, which is the time allowed for exercising a claim once the damage has occurred within the warranty period.

For ten years, material damages to the building caused by defects in the foundation, supports, beams, slabs, load-bearing walls, or other structural elements that directly compromise the mechanical strength and stability of the building may be claimed.

For three years, material damages caused by defects in the building’s construction or installations that result in non-compliance with the habitability requirements established in Article 3, section 1, letter c) may be claimed.

The contractor is also liable for material damages caused by defects in the construction or finishing of the works within a one-year period.

This means that only damages occurring within the specified periods are guaranteed for compensation, as damages occurring after these periods are not covered by the Building Regulation Law.

Once the damage has occurred, the affected party has a two-year prescription period to exercise the actions contemplated in Article 18 of the Building Regulation Law, counted from the occurrence of the damage. This is without prejudice to the actions that may survive for contractual non-compliance.

As mentioned above, this regulation leaves intact the claim action when it derives from contractual non-compliance, as we discussed regarding the developer, whose limitation period is established in the Civil Code at five years.

Practical advice for handling construction defects

We don’t want to end this article without mentioning some guidelines that this law firm in Alicante follows in the many cases of construction defects we handle.

Recommendations for construction defects

The first thing to always consider is the need to call in a technician, whether for a new build or a second-hand home, to determine whether the defects are hidden.

The visit by a technician to the property will confirm the existence of construction defects, their quantification, and the assignment of responsibility.

Another action we always recommend is to notify the building agents involved to interrupt the prescription period. This is crucial because, unlike hidden defects, where the prescription cannot be interrupted, any extrajudicial notification interrupts the prescription period, restarting it from the beginning and allowing more time for a claim.

Lastly, it is worth noting that the only party responsible for poor finishing or workmanship defects is the contractor, aside from the developer, as we have mentioned. The warranty period is one year from the completion of the property.

Necessary documentation for claims

In addition, it is essential to gather all the necessary documentation to be able to file a judicial claim with a high probability of success.

This documentation is something our law firm has thoroughly prepared and requires before proceeding with any legal action.

Carlos Baño Law Firm

Don’t hesitate to contact our Carlos Baño Law Firm to obtain the best legal advice.
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