One of the biggest concerns a buyer of a new home may have is the risk that damage may appear on it after a while and not having the security of protection when the people who intervened in the construction may have disappeared.
Precisely as a result of the doctrine of the Supreme Court and of the legislator’s protection to fill this void, Building Ordinance Law 38/1999 of November 5th was approved and among many other important things it established the risks to be covered as well as the liability for the said coverage.
In the constructive process, some people intervene, all of them with very defined functions, and this is helped by the aforementioned legal norm that includes each and every one of the participants and the requirements that they to fulfill in order to be able to carry out their activity.
These persons, in the exercise of their powers and functions in the construction process will be accountable to the buyer for the damages established in the Law.
Construction damages, covered risks
- Damage affecting the foundations, supports, beams, slabs, load-bearing walls or other structural elements, which endangers the mechanical strength and stability of the building (ten-year liability).
- Damage caused to the building by faults or defects in the construction elements or facilities that cause the unfulfillment of the habitability requirements.
- Material damage due to faults or defects in execution that affect the finishing elements of the works.
The guaranty period is of 10, 3 and 1 year respectively.
The beginning of the calculation of this guarantee is the delivery of the building without opposition.
Then we will see how this period of time should be understood along with the time limit.
LIABILITY OF THE PARTIES INVOLVED
What the Law does not do is to individualize or establish liability’s criteria between the different intervening parties because this is already established by the own rules that regulate the activity of technical professionals as well as by the Jurisprudence of the Supreme Court that after many years of judicial activity has established a very clear and explicit Doctrine of causes of imputability for the involved parties.
It must be clear that what has raised to legal provision has always been the criterion of the Supreme Court that when examining the liability of the participants in the construction always established that the Developer will respond jointly with the other intervening agents before the possible acquirers for the material damages in the building caused by vices or defects of construction; in the same way that it establishes that in the event of difficulty in individualizing the cause of the damages or when a proven concurrence of faults appears without being able to delimit the degree of intervention of the agents, joint and several liability will be demanded, that it is, of all of them.
In another article, we will briefly address this interesting question, which is far removed from the intention and reason of this article, which is limited to the coverage of these risks.
WHO MUST ENSURE
The aforementioned Law represents an important advance for the safety of purchasers since it requires coverage for the risks of construction damage, that we have already seen, and requires that the policy holder will be the builder in the case a) of section 1; and the developer in the cases b) and c) of the same section, and as insured parties the own developer and successive purchasers of the building or of part of it.
A NEW CONSTRUCTION CANNOT BE REGISTERED ON PUBLIC RECORD WITHOUT JUSTIFYING GUARANTEES
One of the most important novelties and that is a real guarantee for the buyer is the legal requirement that makes possible to register on public record the new construction, is that the coverage of these insurances is accredited justifying the existence of the policies that cover the already mentioned risks.
We must bear in mind that the declaration of new construction is the legal recognition of the building’s existence with all its components, its description and the statutory regulation by which it will be governed, as well as the attribution to each dwelling of a participation fee in the common elements.
The declaration of new work is inscribed or registered in the Land Registry and from there on the Land Registry a registration page is open for each component separately.
When you are going to acquire a property this supposes the certainty of the property’s recognition for legal effects of its existence and for that reason it is described the said property in the deed reproducing what it says the new construction of this house that starts having its own existence with independence of the new work of which it formed part.
Well, none of this will be possible if the Developer does not justify before a Notary and Registry that he has covered the risks of construction damage with the due policies.
HOW TO ACT IN THE EVENT OF DAMAGE IN THE COMMON BUILDING
The dwelling can be a component of a building or of a residential area whose functioning is governed by the relevant bodies in this case the Owners Association.
In this cases when the existence of damages is detected the most advisable thing to do is ask for an expert report on the cause of the said damages and from there start acting and for that the better choice is always to contact a lawyer expert on real estate law, who guide your actions that will be initiated with a friendly claim to the participating parties that may be considered liable and so that the proceed with the reparation of the damage.
If it is clear that there is damage covered by the ten-year liability, it is obvious that you could always address straightaway to the insurance company that covers the policy without prejudice to the liability incurred by whoever is the liable part.
This law firm specializing in construction law has a guide and guidelines for action in these cases that has always given us great results and many times we have achieved agreements, either repair agreements or compensatory ones with insurance companies for the benefit of our clients.
If the paperwork is not successful, it would be necessary to take legal actions and to this end it will always be advisable to constitute evidence by drawing up the necessary technical expert reports.
At the time of going to the Courts we will have to choose with care who we are going to claim because many times the mistake of suing all the agents is made with the security that all of them are going to be condemned and many times what happens is that in the trial it is proved that the liability can only be attributed to some of them with the acquittal of the others and this will produce that those who have unduly sued will be ordered to pay costs.
We must not lose sight of the fact that in legal proceedings the principle of expiration applies when it comes to imposing the costs or expenses of the legal proceedings, so it will be necessary to choose carefully who to sue, this being one of the important reasons also to choose a good lawyer expert in construction law.
HOW TO ACT IN THE EVENT OF DAMAGE IN AN INDIVIDUAL CONSTRUCTION
If you are the owner of a villa or single family home, everything that we have said before applies to you, although you should be very careful when choosing a professional that advises you because you will bear all the costs of the claim in an initial way and you will also assume the expenditures of the other intervening parties if you do not obtain a favorable sentence; so what we have said above applies to you, but due to its consequences, you should take special care.
Trust this law firm specialized in construction law of Carlos Baño León and don’t forget that we work throughout Spain and we count on our own guides and action protocols, result of our extensive experience and that are giving us very good results for years.
HOW MUCH TIME I HAVE TO CLAIM?
This matter has undergone an important variation after the publication of the Building Law and we are only going to include the current regulation that is expressed in the aforementioned Legal Text that applies to those damages that appear as a result of the publication of the Law, whose entry into force was on 6th of May, 2000.
If the damage is previous, the prescription regime is broader and has another treatment, but this is outside this article.
The current legislation establishes that it will be possible to claim for the mentioned material damages within the term of 2 years since the above said damage takes place, without prejudice of the actions that can subsist to demand liabilities for breach of contract.
It is not superfluous to emphasize in order to avoid confusion between the time limit and the guarantee period.
It should be clear that the guarantee periods operate as a period of insurance coverage so that only the damage that appears and occurs in that period will be included within the application of insurance coverage and we have already seen that the beginning of this guarantee period is the delivery without disagreement of the new work.
Once the insured damage has occurred, only if it included within the guarantee period, you will have at your disposal 2 years for the claim, which means very little time, and we must be alert so that we do not miss the deadline with the fateful effects that this would bring with it. As for instance, losing the possibility of taking actions before the Courts claiming the application of the insurance cover.
The purpose of this article is very limited because it is a subject of great importance and represents a very high percentage of claims in the Courts and Tribunals, but if we have tried to make it clear is that the owner who is involved in a case of this type should immediately resort to a lawyer specializing in real estate law and construction given the complexity of this matter and the great importance of the action to be taken.