abogados · lawyers · rechsanwaelte

How to claim construction defects

Whether you are the owner of a property, business or industrial premises or if you are a property manager, you must know the most important aspects to consider in order to claim the defects of construction in real estate, as well as the damages caused as a result of them.

What are construction defects?

The construction defects are those irregularities that we can find in our property as a result of it´s construction, among which we can distinguish:

  • Defects in the finishing.
  • Defects of habitability.
  • Defects related to the stability and structural safety of the building.


How long do I have to claim?

The action to claim the construction defects prescribes within two years from the occurrence of such damage.

About the guarantees of the property, the “Ley 38/1999, de 5 de noviembre, de Ordenación de la Edificación”, offers us a series of guarantees, granting a deadline to claim those defects of finish, habitability or those related to stability and structural safety of the building for one year, three years or ten years, respectively.

In this regard, the terms of guarantee or action to claim such defects begin to count from the time the contract of reception of the work is signed or, where appropriate, from the moment it is understood to be tacitly received.

If this period has elapsed, the contractual liability of the developer or seller of the property provided for in the civil code, which extends for 15 years after the sale thereof, will remain in force.


Who to claim?

The claim procedure must be addressed to the construction agents that have intervened in it.

However, the derived civil liability will be demanded in a personal and individualized way so that the culprit must be identified of the construction defects that appear, distinguishing between the developer, the builder or the director of the work.

In the case of claiming defects relating to the stability and structural safety of the building, it should be noted that in these cases the law obliges the developer or builder to hire a ten-year insurance that guarantees the responsibilities of building agents for property damage caused by defects that affect the mechanical strength or stability of the building, so you must also go to the insurer to claim the construction defects and damage caused by them.


How do I submit the claim?

First of all you must identify all possible defects that appear in your property and, if applicable, consult with your neighbors the possibility that they have been extended to the adjacent property.

Once identified, you must notify these defects to the developer or builder, we recommend accompanying this claim with an expert report where the construction defects detected are identified, the origin of them, a proposed solution and justify the causal link between the constructive deficiencies and the defects that have appeared.

It is recommended that such notification be made through a reliable means that records it´s receipt (Burofax, registered letter with acknowledgment of receipt, ...).

Following these guidelines, the probabilities of success for the extrajudicial claim to correct the aforementioned defects and to claim the damages produced by them are maximized and, in any case, the terms are interrupted in case of a possible judicial procedure in case of non response or  a non amicable agreement.

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