Specializations

Liability for construction defects

In any claim for construction defects or imperfections/flaws in construction, we speak about the agents of the building to attribute liability. These consist of the builder, the real estate developer, the architects, the designer, the contractor... They are the professionals who intervene in the construction of the plot, the property, the building, or the dwelling in which the defects or flaws appear later.

There are two liability regimes, the contractual one, regulated in Civil Code, and the special liability regime for building defects provided for by Ley de Ordenación de la Edificación (LOE), which specifically regulates civil liability of building agents. Both actions can be objectively accumulated and resolved in the same procedure.

The legislator distinguishes between three types of defects, with different warranty periods: structural defects (ten years), habitability defects (3 years), and execution defects that affect elements of completion or termination of the construction work (1 year). The warranty period (i.e., the period in which defects may appear) starts to count from the moment when the work is received without reservations or from the moment when these are amended. The reception of the work is the act by which the builder, once the work has been completed, delivers it to the promoter and the latter accepts it. It occurs before the individual buys the work, during the building process. It is common to confuse the starting prescription date at the time of purchase of the construction work, but it is not the case.

And, on the other hand, we have the statute of limitations of the action to claim. The injured party has a period of two years to claim compensation or repairing of the damage from the time the damage occurs, this being understood as from the time when the owner had or could have had knowledge of the damage. The limitation period can be interrupted, unlike the warranty period.

The plaintiff must prove the existence of material damage and the occurrence of such damage before the warranty period expires, and a causal relationship will be presumed (except in cases of Acts of God, force majeure, acts of third parties or lack of diligence of the injured party himself).

Theoretically, it is an individualized liability, and the person who will be liable for the damage caused will be the building agent who caused it. Even so, the reality in many cases is that the damage cannot be attributed to a single person since the true origin is not known. In these cases, a joint and several liability regime is established, in which all the agents are liable, and the totality of the damages can be claimed from any of them.

Finally, regarding the legal standing, the injured parties who are the owners of the building will be entitled to claim damages. And, on the other hand, it will be possible to claim against the building agents that the LOE foresees, but never against the agents that are not included in the regulation (since it is a closed list).