It is always important to contact an attorney so that they can review your case in detail, and have them contact the necessary technical experts to prepare a detailed report of existing damage in the building which will show how serious these defects actually are.
Your lawyer will send a burofax (a form of notification which will have proof of the contents of the letter sent, plus the day and who actually receives it), or send a request to the builder via a Notary Public, asking him to repair the faults you have, (it is always best to avoid going to court and settling the problem amicably). The period usually given for the repair of the faults is that of one month.
Prior to the current Administrative Law for Construction (Ley de Ordenación de la Edificación), the responsibility of the Architect and Builder was established in the civil code, section 1591; the decisions of the courts extends this responsibility to the Quantity Surveyor (technical architect) and the Promoter.
All of these professional people 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.
What is DETERIORATION? Not only is it the destruction or loss of property, but also construction defects such as cracks, chipping or flaking, humidity, etc., which are more serious than simple flaws and which indicate important construction defects that lie beneath the surface.
The "Administrative Law for Construction" 38/99 of November 5th, 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 the receipt of the work, unless the owner has made reservations, i.e. from the final acceptance of the work.
How are these deadlines calculated?
Firstly we should differentiate between two separate cases to show how the deadlines are calculated.
Buildings built before 6th May 2000: The period is counted as from when the property is built. Buildings or works made after that time: The period is counted from date that we receive the work. It is quite normal in the construction of property that more than a year has passed since the building was completed but that the sales purchase deeds have still not been signed, for example because the Town Hall has not given the habitation license. In these cases the period is counted as from when we receive the keys and we have possession.
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 later in turn claim from the suppliers of the product.
How can we prove what the damages are?
The way in which damage is proven is by getting 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 you 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.
