Claiming compensation

We always recommend that, at the start of the process, formal demands be sent to the developer or the Architect, quantity surveyors or building contractor asking them to remedy the defects in your home.

They do not normally reply, but if no favourable response is obtained, later in the lawsuit they cannot argue that the obligation to repair takes precedence over the financial claim, since they already had the opportunity to put things right.

When, once, the Supreme Court -30 years ago-, said in a judgment that one had first to ask for repair and then, if they did not carry it out, seek compensation, that judgment made many of us tremble, professionals who were already working in this field, because the reporting judge in that case also ordered the injured parties to pay legal costs for having asked for the wrong thing.

Later, and tentatively the courts reasoned that those who caused the damage through their negligent professional conduct cannot demand to be the ones who carry out the repairs, as this would risk a contentious enforcement of the judgment.

But fortunately this approach was examined by the Court in judgment no. 178 of 31 October 2006, which followed this criterion in its fifth legal ground: “As the appellant himself states in the third section of his appeal, the owner of the works may claim payment of the price in cases, such as this one, in which his request for repair of the existing defects has not been met”.

In other words, it established that compensation could be claimed from the outset.

The Supreme Court judgment of 20 December 2004 had already placed on an equal footing the possibility of obtaining an order to carry out repair works and that of claiming payment of compensation sufficient to carry them out.

And the Supreme Court judgment of 29 May 2008 has now definitively established the possibility of claiming, firmly, without any kind of subsidiarity, directly, the corresponding compensation. Because the law does not make it conditional, nor does the legal text require, that repair be sought first and money only as an alternative. Although those judgments referred to article 1591 of the Civil Code, the same criterion applies under article 17.1 of the LOE, which sets out the liability of the parties involved to answer for “material damage”, and the option of choosing between repair or compensation, so that the injured party can carry out the restoration themselves, has not changed. If you have any questions, please consult us.

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