José Luis Navarro
Community
Law Corner:
Article 15
Structural defects, who is responsible ?
By José Luis Navarro www.intercala.com
The Solicitor and Property Administrator for Intercala Administration
and
Pete Woodall (Woody's Los Boliches)
This article first appeared in the Euro Weekly News, Costa del Sol Edition August 2012
Inevitably some problems or defects, large or small, will arise with a building.
When an owner suffers damage or hardship as a result of a structural defect then responsibility for the problem has to be attributed, but Spanish law is not always clear about just who is responsible for what and some clarification is needed.
The community of owners are responsible for ensuring that buildings and communal areas are kept in good order, as per article 10:1 of the Law of Horizontal Property which states,“ The community will be obliged to carry out necessary work to the property and its services, ensuring proper maintenance and conservation, so that it fulfils all due structural, waterproofing, habitability and safety conditions.” Having fulfilled their obligation of proper maintenance, the community may have the right to claim back the cost of such work from the developers or other professionals involved if they consider there has been a flaw in the original construction.
An individual owner is not obliged to sue personally developers, architects or the other professionals for defects to a building. Even if the defect affects just the one property, the community is responsible, regardless of the number of dwellings involved it has to deal with the problem. If the community is unwilling to fulfil their obligation then the owner can take them to court and force the issue.
Community insurance will probably not cover structural damage, if an owner suffers for example, rain water damage as a result of a badly constructed roof or a poorly finished façade then the community insurance may pick-up the bill for damage done to the inside of an apartment and other areas but almost certainly would not be interested in paying for the cost of the repair to the building. This cost would fall to the community who could then possibly make a claim to the developers or builders.
Spanish buildings with construction licences issued after May 6th 2000 will have an insurance which covers any problems arising through structural defects for up to 10 years. This 10 year insurance however only covers the major aspects of the building, such as foundations, beams, load-bearing walls and any other structural elements concerned with the strength and stability of the building.
The rest of the defects, which unfortunately are the most common ones, are not covered and a community can not make an insurance claim for them. It can still make a claim directly to the developer or the other professionals involved in the construction as per Article 17 of the 1999 Spanish Law of Construction, but the claim must be made within a specific period of time to be valid.
Depending on the nature of the defect or problem, different time restrictions apply. This is complicated and probably best left to an experienced legal professional but the rule of sooner rather than later certainly applies. A community is free to sue either just the developer, as the one responsible for the architects, builders and the other professionals, those individual professionals themselves, or all and any of them.
Property developers do have contractual responsibilities when selling houses and buildings, if an owner has not received the build quality expected then they are free to make a claim for breach of contract. The legal period would be longer than that for a claim for structural defects but it would be first necessary to prove the defect did actually constitute a breach of contract.
During the property boom many unprofessional short cuts were taken, rules bent and good practice ignored, obviously not in all cases but certainly enough for the structural defect problem to be more common than it should be.
As usual,
We at Intercala Administration strongly suggest you always seek proper and competent advice in all matters regarding the law.
Structural defects, who is responsible ?
By José Luis Navarro www.intercala.com
The Solicitor and Property Administrator for Intercala Administration
and
Pete Woodall (Woody's Los Boliches)
This article first appeared in the Euro Weekly News, Costa del Sol Edition August 2012
Inevitably some problems or defects, large or small, will arise with a building.
When an owner suffers damage or hardship as a result of a structural defect then responsibility for the problem has to be attributed, but Spanish law is not always clear about just who is responsible for what and some clarification is needed.
The community of owners are responsible for ensuring that buildings and communal areas are kept in good order, as per article 10:1 of the Law of Horizontal Property which states,“ The community will be obliged to carry out necessary work to the property and its services, ensuring proper maintenance and conservation, so that it fulfils all due structural, waterproofing, habitability and safety conditions.” Having fulfilled their obligation of proper maintenance, the community may have the right to claim back the cost of such work from the developers or other professionals involved if they consider there has been a flaw in the original construction.
An individual owner is not obliged to sue personally developers, architects or the other professionals for defects to a building. Even if the defect affects just the one property, the community is responsible, regardless of the number of dwellings involved it has to deal with the problem. If the community is unwilling to fulfil their obligation then the owner can take them to court and force the issue.
Community insurance will probably not cover structural damage, if an owner suffers for example, rain water damage as a result of a badly constructed roof or a poorly finished façade then the community insurance may pick-up the bill for damage done to the inside of an apartment and other areas but almost certainly would not be interested in paying for the cost of the repair to the building. This cost would fall to the community who could then possibly make a claim to the developers or builders.
Spanish buildings with construction licences issued after May 6th 2000 will have an insurance which covers any problems arising through structural defects for up to 10 years. This 10 year insurance however only covers the major aspects of the building, such as foundations, beams, load-bearing walls and any other structural elements concerned with the strength and stability of the building.
The rest of the defects, which unfortunately are the most common ones, are not covered and a community can not make an insurance claim for them. It can still make a claim directly to the developer or the other professionals involved in the construction as per Article 17 of the 1999 Spanish Law of Construction, but the claim must be made within a specific period of time to be valid.
Depending on the nature of the defect or problem, different time restrictions apply. This is complicated and probably best left to an experienced legal professional but the rule of sooner rather than later certainly applies. A community is free to sue either just the developer, as the one responsible for the architects, builders and the other professionals, those individual professionals themselves, or all and any of them.
Property developers do have contractual responsibilities when selling houses and buildings, if an owner has not received the build quality expected then they are free to make a claim for breach of contract. The legal period would be longer than that for a claim for structural defects but it would be first necessary to prove the defect did actually constitute a breach of contract.
During the property boom many unprofessional short cuts were taken, rules bent and good practice ignored, obviously not in all cases but certainly enough for the structural defect problem to be more common than it should be.
As usual,
We at Intercala Administration strongly suggest you always seek proper and competent advice in all matters regarding the law.
