How to claim for construction defects

            If you have just bought a new-build home and have found construction defects such as damp, water ingress, hairline cracks, problems with parking spaces, lack of sound insulation, lack of thermal insulation, problems with the installations, etc., this is what you need to know:

How to claim for construction defects in a new home. 

         If you have already contacted the developer’s after-sales department and drawn up a snagging list,   but it has been to no avail, you should put your case in the hands of lawyers and architects who specialise in construction defect claims.

Time limits for claiming for construction defects. 

            First of all, you should know that there is a law setting out guarantee periods under which those responsible must answer for these defects. It is the Spanish Building Act (Ley de Ordenación de la Edificación, LOE).

 Please remember that there are different guarantee periods  for making a claim depending on the law and the type of defect, and it is important to bear them in mind, as you must not let them run out.

• Claiming for construction defects under the LOE.
  

   

  -Defects in finishes (1-year guarantee from the handover certificate of the works –which usually coincides with the signing of the certificate of completion). Within this period you can claim for mainly aesthetic issues, that is, poor paintwork, poor finishes, building debris not cleaned up, scratched doors and windows, stained tiles and similar defects. It also covers similar damage found in communal areas, whether in entrance halls, children’s play areas, sports areas, the swimming pool, etc.

   

   

   

  – Habitability defects (3-year guarantee from the date of the handover certificate/certificate of completion). The most common defects are: faulty waterproofing, causing water ingress, damp, mould and fungi, etc.; poor thermal insulation (excessive heat/cold) and sound insulation (noise); defects in the shunt ventilation ducts, causing bad odours; cracks and hairline cracks (not affecting the structure and foundations); defects in the electrical, telecommunications and other installations; any damage or problem that may impair the comfort and habitability of the homes.

   

  – Structural and foundation defects (10-year guarantee from the date of the handover certificate of the works/ certificate of completion). The defects must be structural: cracks and hairline cracks that seriously affect the structure and foundations; water ingress from the water table in basements and garages that corrodes the steel reinforcement of the foundations and therefore affects them; in short, damage that may compromise the safety and stability of the building, etc.

   

  IMPORTANT: once you become aware of these defects and have reported them, regardless of the type of defect and its guarantee period, you only have 2 years to file a lawsuit, or to interrupt the limitation period with a burofax (formal registered letter).

   

  Who is liable for construction defects?

   

          Those liable, and against whom a claim can be brought under the LOE, may be all the parties involved in the construction: the developer, the building contractor and the site management team, that is, the architect and the technical architect.  Once the expert report has been drawn up, the responsibilities of each professional would be established in order to decide whom to sue; where appropriate, each would be asked to be held liable for their own share, and where individual responsibility cannot be determined, joint and several liability would be sought.  In any event, the developer is always secondarily liable for all of them, on the grounds of “culpa in eligendo” (fault in choosing them), and it also has its own contractual liability as the seller.

   

  Time limit for claiming for construction defects against the developer.

   

           In addition to the guarantees under the LOE mentioned above, the new buyer of the home has a further action against the seller based on its contractual liability, which can be brought separately or together with the above:

  • Claim for contractual liability against the developer as seller (under article 1101 of the Civil Code) together with its obligations under the LOE.                                                                               

   

  All construction defects would be claimed against the developer as seller for breach of contractual obligations (5 years from the date the deeds of sale were signed). Although the developer’s breaches and negligence would need to be proven more thoroughly, this longer period covers all types of defects.

   

  Expert report for claiming for construction defects.

   

  However, to make a claim it is essential to rely on an expert report .

             The report  must be prepared by an expert specialising in building pathology, who must produce a report  that is as clear and well-founded as possible, carrying out a survey of the damage, listing each and every defect exhaustively, with a photographic record, and performing the relevant tests or exploratory openings. The expert must also put forward a repair proposal to remedy the damage properly and/or an alternative financial valuation. The expert must also confirm and defend the report at trial, which is why it is so important that they are a true specialist.

   

   

  Lawsuit claiming for construction defects.   

              Once the report has been prepared, you should contact lawyers specialising in construction law so that they can take the appropriate action. The first thing the lawyers should do is send an out-of-court formal demand to those responsible, requiring them to answer for the defects and giving them a short deadline either to carry out the repairs in the manner proposed by the expert or to pay compensation in line with the valuation. If they refuse, the next step is to bring court proceedings for construction defects. The lawyers’ specialisation is key to the success of the claim. 

   

  If you have any questions, contact us.