Sparkes Spanish Lawyers

Roy and Sue Porch's Question

We wonder if you can please help us with some information regarding the 10 year guarantee issued with a new build property. Three years ago we bought a town house on the Costa del Sol in a small community of 15 houses. Unfortunately, there have been several problems with major cracks in the rendering, roof tiles slipping off and ventilation problems, apparantly due to the pitched roof being incorrectly built, etc. The community employed a Spanish surveyor to identify the problems. The community has now organised an "extraordinary general meeting" (as advised by the administrator) to discuss the way forward. We seem to think the builder has financial difficulties and in the past he hasn't really wanted to know.

Do you know what the 10 year guarantee covers and how it works? Is there any similarity to the NHBC in this country? We have asked countless people in Spain , including the administrator, yet nobody seems to know.

We feel that before we start trying to find a lawyer to deal with this matter which, we understand, could take years, we should explore all options. We were not given a certificate as such for the guarantee. Any advice you can give regarding this matter will be very much appreciated as we are very concerned. Unfortunately, before we knew there was to be a surveyor's report we put our house up for sale and put a deposit down on an off-plan property so we are in a difficult situation.

Des Sparkes’s Answer to Susan Porch’s Spanish Legal Problem

On 6th May 2000 a new Spanish building law was created "la Ley de Ordenacion de la Edificacion". This law obliged developers to set up 10 year insurance policies, that cover their developments for subsequential damage which results from defects in the original foundations, or structure of the building. The cover starts from when the original structure was completed and lasts for 10 years.

In addition to the aforementioned legal obligation there are also other causes of action under Spanish law, which can be used by the owner of a property who subsequently discovers damage due to defects in the original construction. Depending on the particular circumstances of the case the owner may be able to take direct legal action against the developer and/or the architect under Spanish civil law, and these causes of action are available regardless of whether a 10 year insurance policy is in place.

In this particular case to discover what action should be taken the official licence for the development (Licencia de Obras) would have to be examined, in order to check how the development should have been built. Then an independent survey of the property can be made to scrutinise the damage to the property and establish whether the damage was caused by defects in the original construction of the property. Once you have this professional surveyor/architect report your lawyer will be able to check whether you have justifiable claim under the 10 year warranty, and/or a civil action in the Spanish courts against the developer or architect.

(The above answer was written by Des Sparkes (Solicitor) who works in association with Spanish property lawyers in Marbella , Malaga , Spain and who writes the Spanish lawyer answers to readers letters in Living Spain Magazine.)