It’s not uncommon that after purchasing a property, a new buyer finds concealed defects that seriously affect the value or the usage of the property. For example this could be a leaking swimming pool or more serious, a structural problem which compromises the stability of the building.
In these cases it is important to get a report from an independent technical architect (or a geotechnical expert if the problem is related to land stability) that will tell who is responsible and value of the damages in financial terms. It would be also a good idea to request the Notary Public to make a photographic notarial act.
Background – The decennial insurance
The building planning law 38/1999, of the 5th November, (In Spanish Ley de Ordenación de la Edificación) defines the civil responsibility of persons (physical and juridical) participating in the construction of a building.
Article 19 of this law defines 3 periods of guarantee over the building:
- One year for material damage for faults or defects in the building which affect the finishing of the work (in general aesthetical problems).
- Three years for material damage caused by faults or defects in the building element or installation that affect the habitability requirements.
- 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.
It is important to notice that these periods are calculated from the day the first owner signs the purchase deeds. There is a legal responsibility for the builder to be insured for this kind of liability. In practice, if the building is not covered by an insurance, the builder will not be allowed to inscribe the building at the land registry, receive financing or market the property.
In cases where the property owner discovers a hidden defect within the 3 categories described above, he will have a legitimate claim against the builder.
Buildings older than 10 years
In cases where buildings are not covered by the decennial insurance, the new owner will have 6 months from the date of purchase to claim to the vendor for hidden defects (as specified by article 1484 of the Spanish civil code).
In these cases the buyer will have 3 possibilities:
- Cancel the sale and receive the money back.
- Reduce the property price accordingly (for example if the defect was found after the signature of the private contract and before the signing at the notary)
- Compensation plus damages and interest if it can be proved that the seller was aware or could not have been unaware of the hidden defect, as specified by article 1486 of the Spanish civil code.
It is sometimes difficult to prove that any defects were hidden at the time of purchase. If the property was valued by a surveyor and nothing is mentioned about the problem in his report it is very likely that the deficiencies of the building were not visible.
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.
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