In Spain, it is very common for buyers of a property, whether new or “second hand”, to have many doubts as to what responsibility the seller of a property has when the property, once purchased, has construction defects or hidden faults, that is, material damage that affects its finishes, the comfort of the property or even, in the most serious cases, the stability or structural integrity of the property.
In view of the numerous queries we receive on this issue, we would like to inform you in a simple and straightforward manner about the main aspects of this matter.
In relation to everything concerning construction defects or “hidden defects” that a property may have, once a buyer has acquired it, the first thing to understand is that, from a legal point of view, the regulations and rules to be taken into account vary greatly depending on whether the property in question is a new build or, on the contrary, is a second or subsequent transfer of a “used” or “second hand” property.
Thus, for new build, we will have a specific legal regime:
In the case of new construction, we will have a specific legal regime.
In the case of the sale and purchase of used or second-hand housing, we will have to apply a different set of rules.
What are construction defects in new buildings?
In the case of newly constructed housing, i.e., where the buyer acquires a home directly from the developer who built the property, which is newly constructed and where no one has previously lived, when said “new” property presents material damage, the regulation and liability for the same will be governed by the provisions of Law 38/1999, of 5 November, on Building Regulations (hereinafter, LOE).
Thus, as established in article 17 of the LOE, the agents involved in the building process are civilly liable for material damage to a newly constructed building, distinguishing between three types of damage:
1) FINISHING DEFECTS: This refers to material damage due to faults or defects in execution that affect elements of completion or finishing of the works.
Examples: loose tiles, stains on walls, doors and windows that do not close properly, leaking WC cistern, defects in the flooring, blinds, paint, damaged taps, floor with irregularities and broken tiles, kitchen carpentry in poor condition, etc.
2) DEFECTS OF HABITABILITY: This refers to material damage caused to the building due to faults or defects in construction elements or installations that cause non-compliance with the requirements of habitability, such as hygiene, health, sanitation and waterproofing, protection against noise, energy saving and thermal insulation, or other functional aspects of the construction elements or installations that allow the satisfactory use of the building.
Examples: leaks, odour leaks, burst pipes or hot water system, dampness in walls and ceilings, drainage problems, etc.
3) STRUCTURAL / STABILITY DEFECTS: This refers to material damage caused to the building by faults or defects affecting the foundations, supports, beams, slabs, load-bearing walls or other structural elements, and which compromise the mechanical resistance and stability of the building.
Examples: Severe damage to columns / main beams / load-bearing walls / roofs / slides / landslides / roof deformations / foundation subsidence / etc.
What guarantee period does the law grant for these construction defects in new buildings?
In fact, the LOE, depending on the type of defect, grants a different guarantee period, namely:
Finishing defects: 1 year.
Defects of habitability: 3 years.
Structural/stability defects: 10 years.
Therefore, when any buyer acquires a newly built home, and within these guarantee periods, the existence of one of these defects becomes apparent, the corresponding liability may be claimed from the persons responsible.
Having said this, in addition to these guarantee periods, an additional issue must be taken into account, as the law also establishes a limitation period for liability claims, i.e., a period of time in which claims can be made against the persons responsible for these defects.
This limitation period is set at two years from the occurrence of the damage. This means that the owner of the newly built home, once he has knowledge of the defects, has a period of two years to bring the corresponding legal actions to claim liability (or, where appropriate, to make the corresponding out-of-court claim for the same by means of a reliable requirement to interrupt the period).
So, by way of example, if Nuria and Daniel, buyers of a newly built flat in Javea, which was completed in October 2022 and sold in public deed on 5 February 2023, one year after the purchase of their home, begin to suffer leaks due to rainfall, as it is a defect of habitability (remember, with a warranty period of 3 years), they will be entitled to claim for the same. As they have now noticed the appearance of these leaks, they will have a period of 2 years from March 2023 (this article is made this month of March 2023), to find a lawyer and file the corresponding legal action against the responsible persons or, if necessary, send a burofax to claim the repair of these defects, in order to interrupt the period.
From when do the statutory warranty periods start to run?
This is undoubtedly one of the most complex issues to understand, because, contrary to what many people may believe, the guarantee periods do not start to be calculated from the moment the buyer acquires the newly built home, but from the moment the so-called “reception of the work” takes place (article 17.1 LOE).
This is established in article 6.5 LOE, which states that “the computation of the liability and guarantee periods established in this Law will start from the date on which the reception certificate is signed, or when this is understood to have been tacitly produced”.
Therefore, regarding this concept of “reception of the work” and its meaning, it is necessary to refer to the provisions of article 6 of the LOE, which establishes that the reception of the work is the act by which the builder, once it has been completed, hands it over to the developer and it is accepted by the latter.
The acceptance must be recorded in a document signed by at least the developer and the builder. Unless expressly agreed otherwise, the reception of the work shall take place within thirty days of the date of its completion, as accredited in the final building certificate.
It is also necessary to know that the reception can also take place tacitly if the builder notifies the developer of the completion of the work and the latter, within a period of thirty days, has not expressed any reservations or justified rejection in writing.
In practice, in order to know when this reception of the work has taken place, it should be pointed out that it can be provided by the builder/developer himself, in good faith, or, if not, the interested parties can consult it in the building’s book.
Which persons may be liable for construction defects?
As is well known, many operators or professionals are involved in the construction and sale of a home, so that, depending on the type of defect and its cause or origin, one or more of them will be liable.
On this basis, the LOE classifies these intervening parties as building agents, i.e., all persons, whether natural or legal, who intervene in the building process.
In practice, these agents are, mainly:
1) Developer: The person who decides, promotes, programmes and finances, with his own or other people’s resources, the building works for himself or for subsequent sale, delivery or transfer to third parties.
2) Builder: The agent who assumes, contractually before the promoter, the commitment to carry out the works or part of the works with human and material resources, whether his own or those of others, subject to the project and the contract.
3) Construction manager (architect): The agent who, as part of the facultative management, directs the development of the work in the technical, aesthetic, urban and environmental aspects, in accordance with the project that defines it, the building licence and other mandatory authorisations and the conditions of the contract, with the aim of ensuring its suitability for the proposed purpose.
4) Construction execution manager (technical architect): The agent who, as part of the facultative management, assumes the technical function of directing the material execution of the work and of controlling the quality and quantity of the construction and the quality of what is built.
What can I do if my new home does not have the promised finishes or qualities?
In addition to construction defects, it can also happen that when the buyer arrives at their new home, they notice that their property sometimes does not have the finishes or qualities to which the developer committed himself when the sale or reservation was formalised (normally “off-plan”, many months before the property is delivered).
It is very common that, when the buyer acquires their flat “off plan” or reserves it, they are given, together with the contract, a building specifications report (binding for the developer), which later, sometimes, is not complied with. Or in the case of a promise that the flat will have marble finishes, and in the end a lower quality floor is installed.
In these cases, we would not be dealing with a construction defect, but with a breach of contract, in which case, logically, the buyer can also claim through this means of breach of contract, bringing the corresponding legal action.
If I have bought “second hand” a flat that is still under guarantee and has construction defects, can I also claim?
Of course, the developer is liable, that is, not only to the initial purchaser of the newly built property, but also to second or subsequent purchasers, in relation to construction defects that are within the legally established warranty periods.
So, for example, if Antonio buys a newly built house, and after a year he sells it to Carmen, if structural defects subsequently appear in the property (let’s imagine, a collapse of the beams), Carmen will be perfectly entitled to claim this defect from the developer of the house, since this structural defect is within the 10-year guarantee period established by law.
If I find myself in one of these situations, what should I do?
In the event that, as a buyer of a newly built home, you find yourself in one of the situations described above, i.e. your home has construction defects or the qualities or finishes executed are not as promised, the best thing to do is to turn to a lawyer specialising in civil / real estate law, so that under their advice and legal direction, you can assert your rights and obtain the reparation or compensation that corresponds to you.
In addition, you will most likely need the services of a technical expert specializing in the matter (architect, technical architect, etc.) who can accredit and assess these defects or divergences in quality
What further action can I take against the developer of my newly built home if they refuse to repair its defects?
In all this matter, it is also necessary to bring up consumer legislation, because beyond the individual claims that the buyer can make against the developer who has sold them their newly built home, the latter, in the event that the buyer is a consumer, will also be obliged by consumer legislation to respond to the lack of conformity of the marketed good.
Thus, if the owner, as a consumer, in the face of a construction defect claimed against the developer, refuses to repair or respond to it, this “buyer/consumer” could also bring these facts to the attention of the consumer authorities, so that the corresponding administrative proceedings can be initiated as a result of this infringement of consumer and user protection regulations, which may ultimately lead to the imposition of a financial penalty against the developer.
What happens in the sale and purchase of a used home? What are "hidden defects"?
In the case of the purchase and sale of used or “second-hand” homes, as we have already mentioned, the situation changes a lot, as the legal regime and the grounds to be applied are completely different.
On this basis, we must understand that, in the sale and purchase of second-hand homes, the problem that we may encounter is in those cases in which, once the home has been purchased, damage or existing defects are revealed, which have been concealed or not reported by the seller to the buyer.
For example, in the case of a property that has water leaks in the roof, and the current owner knows about them, and nevertheless, the owner proceeds with the sale of the property without revealing them to the buyer, so that the new owner, once they have bought the property, thinking that it is in perfect condition, notice them on the first day of rain.
In these cases, i.e. the existence of pre-existing damage or defects that are not known to the buyer, we would be dealing with the classic concept of “hidden defects”, which in Spanish law is regulated by the Civil Code, which states that “hidden defects” are understood to be those defects that the object, product or thing sold may have and which are difficult for the buyer to perceive at first sight.”
Thus, according to the aforementioned regulation, any property (including real estate), when sold, must be “in accordance with the contract”, i.e., it must be “in accordance with the contract”:
– That it conforms to the quality and description given by the seller.
– It is fit for its normal purposes.
– That the property has the qualities and other characteristics normally found in goods of the same type and which the buyer can reasonably expect, given the nature of the property and the representations made by the seller.
Thus, if the used / “second hand” property that we have purchased, once acquired, presents any damage or defect, as buyers, we will have the right to claim against the seller for the lack of conformity of the property, provided that:
– The damage or defect was prior to the time of the sale.
– It was impossible or very difficult for the buyer to notice the existence of such damage or defect during the previous visits to the property.
In these cases, the buyer must take into account the time limits established in the Civil Code to claim the lack of conformity of the property from the seller, namely:
The statute of limitations for claims for hidden defects is six months from the delivery of the property.
However, as with other actions, this period can be interrupted by means of the corresponding claims. This limitation period imposes a certain duty of diligence on the buyer, although there are other doctrinal lines that inform that this period is of expiry and cannot be interrupted/suspended.
Actions for hidden defects must be brought within a short period of time, which forces the buyer to inspect in detail the functioning and characteristics of the thing within a reasonable period of time.
In many cases, the mere out-of-court claim through a specialist lawyer may be sufficient for the seller to agree to take charge of the repair or reduce the sale price, without having to go to court, where, if all the requirements and time limits are met, the buyer may claim from the seller, as appropriate in each case, from the repair of the damage or a reduction of the price, as w
If you have any doubts or questions, we are at your disposal to help you with any questions you may have in connection with the purchase of any type of property, please contact us at info@pellicerheredia.com or at +34 965 48 07 37.
