Contractual liability covers all types of defects. 

                   We have recently obtained another judgment against a well-known developer. The action brought against this company was for contractual liability as the developer-seller of the building, claiming for a vast number of defects of all kinds in the residential development.

                  The defendant argued that it should not be liable for this damage, as most of it consisted of defects in finishes of little importance that did not amount to a serious breach of contract; that they should have been claimed within their guarantee period under the Spanish Building Act (Ley de Ordenación de la Edificación, LOE), which had expired for the homeowners’ association;  that this damage could not be brought within a contractual action, as it was aesthetic; and that for its liability as seller to arise it would have had to deliver something completely unfit for purpose, which it denied.  

         However, the judgment of the Getafe Court of First Instance and Preliminary Investigation upholds our claim, reiterating well-established case law stating that the contractual liability of the developer-seller under article 1101 of the Civil Code covers not only construction defects that threaten the building’s integrity but also mere imperfections or simple defects of workmanship or finish. This is because, under the sale and purchase contract, the developer undertakes to deliver the property not only in accordance with what was agreed but also “free from defects, whether extraordinary and serious or mere imperfections”.

                Thus,  The developer who sells provides an unconditional contractual guarantee that the property sold matches the pre-contractual programme and the uses and purposes for which the property is intended, assuming the obligation to carry out the works without defects, placing a sound product on the market.

  Its  liability arises from the breach of contract because the homes do not meet the conditions of fitness for the purpose for which they were intended, since as seller it is obliged to deliver what it builds in a condition that serves its purpose, which is none other than providing people with a home that is safe, fit, useful and suited to its intended use.

                 The developer must therefore deliver homes free from defects of any kind. As a judgment of the Provincial Court of Madrid (Audiencia Provincial) very eloquently puts it, buyers must receive a product as good as the money they handed over  in exchange. When paying, they did not hand over money that was clipped, defective or deteriorated and worth less than the agreed price. Likewise, therefore, the seller (developer) is responsible for delivering something equally good.

             So if your homeowners’ association has a lot of defects and the guarantee periods under the LOE have passed, but 5 years have not yet elapsed since the date of purchase, you should know that we can still claim for the damage from the developer as seller on the basis of contractual liability, including mere imperfections or simple defects of workmanship or finish.

If you have any questions, contact us.