The owner of a new build property or any subsequent owner who purchases the property within the maximum warranty period established by Law (10 years), has a right to make a claim against any of the parties intervening in the construction process, if any material damage appears in the property during that period of time.
The Building Standards Regulations (LOE) 38/1999, stipulate implementation rules for the construction of newly-built properties, and for the refurbishment of existing properties, under the condition that the corresponding planning permission has been obtained, and as from the entry into force of the regulations on the 6th May 2000.
The aforementioned regulations define the respective joint and several liability of the major players involved (Property Developers, Builders or Contractors, Architects, and Technical Architects or Building Engineers… and their respective Insurance Companies). Measures to protect the consumer are also defined within different guaranteed timeframes, and a limitation period (the timeframe for lodging a court claim).
Moreover, the Law establishes a clear distinction between the warranty periods and the limitation period:
I- A threefold warranty period: One, three and ten years. The warranty timeframe is established by Law to protect consumers acquiring dwellings and commercial premises against damages caused by poor quality construction. It is applicable within a stipulated time-frame of ten years which counts as from when both the construction is finalised and the corresponding certificate has been issued
The regulations establish three warranty periods, which in turn depend on the category of the material damage in question:
– ANNUAL warranty (1 YEAR). The builder or contractor shall be held responsible for material damages in the form defects or imperfections affecting the finishing of the property
– TRIENNIAL warranty (3 YEARS). All professionals involved in the construction process shall be held responsible for material damages to the property in the form of construction defects or imperfections, or those affecting installations that consequently cause incompliance with housing standards (such as hygiene, watertightness, airtightness, acoustic and thermal insulation…)
– DECENNIAL warranty (10 YEARS). All professionals involved in the construction process shall be held responsible for material damages to the property in the form of structural defects or imperfections, or those affecting the foundations, pillars, girders, floor structure, load bearing walls, or any other structural elements that directly compromise the stability of the property
It is essential to clarify each and every one of the aforementioned warranty periods, which shall commence as soon as both the construction is finalised and the corresponding certificate has been issued (this is the official time of handover from the builder or contractor to the property developer). The property developer shall always provide this information to the consumer, whether directly if the property is detached or semi-detached (a villa or a townhouse), or indirectly via the Association of Property Owners in the case of an apartment building. This information can also be obtained from the Land Registry.
II- A limitation period (timeframe for lodging a court claim) to enforce civil liability for the damage incurred. The timeframe is two years, pursuant to the provisions under Art. 18 of the Building Standards Regulations (LOE)
In other words, once the material damage has been identified (meaning as soon as the defects or imperfections appear), and the professionals involved in the construction process have been formally notified, a two-year timeframe is applicable. Therefore, any court claim for compensation due to damages incurred by the property owner, must be lodged before the corresponding deadline.
Expert Advice
In the scenario that we find ourselves with claimable material damage, and that this situation occurs within the various warranty periods established by Law, our advice is that in order to interrupt the warranty period, the affected property owner should make a claim against all of the professionals involved in the construction process (Property Developers, Builders or Contractors, Architects, and Technical Architects or Building Engineers… and their respective Insurance Companies). If we only make a claim against one of the parties, only that party shall be liable (together with the Property Developer, always jointly and severally liable). It is of utmost importance that the proceedings are carried out on time and in the correct manner, and that all requirements are met. MSG LEGAL can provide you with advice and guidance throughout the procedure for these type of claims.
At MSG LEGAL, as an Spanish expert Property Law firm, we are highly experienced in claims for building defects or imperfections, and are at your disposal for any questions, advice or guidance you may require.
Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice.
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