Prior to the current Administrative Law for Construction (Ley de Ordenación de la Edificación, LOE 38/99 of November 5th), the responsibility of the Architect and the Builder were established in the civil code, section 1591; the decisions of the courts extends this responsibility to the quantity surveyor, surveyor and the Promoter. All of these professionals are jointly responsible for damage due to the deterioration of a building, providing that it occurs within ten years from the completion of the work, and as long as the responsibility cannot be attributed to any individual.
The LOE forces to take out a decennial (ten year) insurance policy that will cover the building for all construction defect, which are more serious than simple flaws and which indicate important construction defects that lie beneath the surface. By law any building works that started after May 6th 2000 has to be covered by a decennial insurance unless the promoter built the house for his own use.
The LOE amends the warranty period we mentioned previously, stating that the warranty period is as follows:
- Ten years for material damage caused to the building by faults or defects that affect the foundations, supports, beams, steelwork, load supporting walls or other structural elements, which directly affect the resistance and stability of the building.
- Three years for material damage caused to the building by faults or defects in the building elements or installations that involve breaches of the habitation requirements.
- One year for material damage for faults or defects in the building which affect the finishing of the work.
These deadlines are counted as from the date of receipt of the work, unless the owner has made reservations, i.e. from the final acceptance of the work.
From whom can we claim responsibility?
It is the individuals (businessmen entrepreneurs/self-employed) or corporate entities (limited companies, limited liability companies) who intervene in the construction of the property, who are accountable to the owners and third party purchasers of the buildings or parts of them (e.g. when buying an apartment) for any damage caused.
What if the problems were caused for example by the quality of cement?
The builder is directly responsible for material damage caused in the building by the shortcomings of all construction products acquired or accepted by him. The builder can in turn claim from the suppliers of the product at a later date.
How can we prove what the damage is?
The way in which damage is proven is by obtaining a report from an expert in the matter, this will show whether the problems are because of the project, due to the architect, the quantity surveyor, or due to the land on which the construction is built; generally the problems are caused by poor building work; but in any case is very important to have the report from a technical expert to find out who is responsible.
It is best to request that both the Notary Public and the architect, or the competent technician go to visit the faulty construction at the same time. If you have to go to court this will prevent another lawyer from challenging the report, as the Notary will testify to the damage at the same time as the report is made, and the architect or surveyor will give his opinion as a technical expert.
Are there any cases in which liability cannot be claimed?
No responsibility can be claimed when the damage was caused by a fortuitous event, force majeure, the actions of a third party, or by the person making the claim. It is not completely clear if a problem provoked by land stability will be considered “force majeure”. Courts will decide if the problems affecting the building could have been anticipated by proper geological surveys or not.
It is always important to contact a lawyer so that he can review your case in detail, and have him contacting the necessary technical experts, both will prepare a detailed report stating the effects and magnitude of the damage.