The judicial process in construction defect cases is essential to ensure the protection of the rights of all parties involved. These cases are those in which there are defects or irregularities in the construction of a building, which can result in material and economic damages or even in risks to the safety of people.
The main objective of the judicial process in these cases is to restore the rights of those affected and to determine the responsibility of the different actors involved in the construction. This involves not only the owners and builders, but also architects, engineers, material suppliers and any other person or entity that participated in the project.
REQUIREMENTS TO INITIATE A CONSTRUCTION DEFECT LAWSUIT
To be able to initiate legal proceedings for construction defects, the following requirements must be met:
FIRSTLY, THE PROPERTY MUST BE CONSIDERED AS A BUILDING.
The Ley de Ordenación de la Edificación, grants a series of guarantees to protect against defects in buildings intended for housing and establishes in article 2:
“2. The following works shall be considered as building for the purposes of the provisions of this Law, and shall require a project as established in article 4:
(a) New building works, except for those constructions of little constructive entity and technical simplicity that does not have, on an eventual or permanent basis, a residential or public nature and are developed on a single floor.
- All interventions on existing buildings, provided that they alter their architectural configuration, understood as those that are of a total nature or partial interventions that produce an essential variation in the general external composition, volumetry, or the structural system as a whole, or whose purpose is to change the characteristic uses of the building.
- Works that have the character of total intervention in listed buildings or those that have some type of environmental or historical-artistic protection, regulated by legal regulation or urban planning document and those of a partial character that affect the elements or parts that are the object of protection”.
SECOND.-THAT IT IS WITHIN THE GUARANTEE PERIOD.
Article 17 of the Ley de Ordenación de la Edificación, establishes 3 different periods:
1.- Period of 10 years: material damage caused to the building due to faults or defects affecting the foundations, supports, beams, slabs, load-bearing walls or other structural elements, and which directly compromise the mechanical resistance and stability of the building.
2.- Period of 3 years: material damage caused to the building due to faults or defects in the construction elements or installations that cause non-compliance with the requirements of habitability (article 3 of the Law on Building Regulations).
– Hygiene, health and environmental protection, in such a way that acceptable conditions of healthiness and watertightness are achieved in the interior environment of the building and that the building does not deteriorate the environment in its immediate surroundings, guaranteeing adequate management of all types of waste.
– Protection against noise, so that the perceived noise does not endanger people’s health and allows them to carry out their activities satisfactorily.
– Energy saving and thermal insulation, in such a way that a rational use of the energy necessary for the proper use of the building is achieved.
– Other functional aspects of the constructive elements or installations that allow a satisfactory use of the building.
3.- Period of 1 year: The builder shall also be liable for material damage due to faults or defects in execution that affect elements of completion or finishing of the works within a period of one year.
THIRD.- DETERMINING THE TYPE OF GUARANTEE
1.- TEN-YEAR INSURANCE
Regulated in article 19.2 of the Ley de Ordenación de la Edificación, this is insurance for material damage and its characteristics are as follows
– The policy holder is the promoter, and the insured party is the promoter himself until he transfers and the successive purchasers.
– The premium is paid at the moment of reception of the work.
– It guarantees the payment of the material damage caused by the building due to the construction faults or defects mentioned in the Law: therefore, it tries to repair the damage or loss that may be caused by a claim.
2.- SECURITY INSURANCE
It is regulated by article 19 of the Building Ordinance Law and its characteristics are as follows
– The policyholder is the promoter, but the insured is always the purchaser: until the transfer takes place, the insurance does not start.
– What is insured is not the direct economic damage caused by a loss, but the damage caused by the non-fulfilment of an obligation (ten-year insurance was not taken out); for this reason, the policyholder (debtor) and the insured (buyer) must always be different, and there is no surety insurance until there is an owner other than the policyholder-promoter.
– The premium is not paid until the first transfer takes place; in the event of a claim, the insurance company will pay compensation in cash or repair the damage, but will charge the promoter. Any payment made by the insurer must be reimbursed by the policyholder (article 68 of the Insurance Code).
FOURTHLY, THIS IS NOT A CASE THAT IS NOT COVERED BY THE GUARANTEES OF THE BUILDING REGULATIONS.
The Ley de Ordenación de la Edificación, excludes from the coverage of the guarantees established in its articles the following cases
- Personal injury or other economic damage other than the material damage guaranteed by the Law.
- Damage caused to property adjacent to or adjoining the building.
- Damage caused to movable property inside the building.
- Damage caused by alterations or works carried out on the building after the acceptance, with the exception of the correction of defects found in the same.
- Damage caused by misuse or lack of proper maintenance of the building.
- Expenses necessary for the maintenance of the building for which the acceptance has already been made.
- Damage caused by fire or explosion, except for faults or defects in the building’s own installations.
- Damage caused by unforeseen circumstances, force majeure, acts of third parties or by the injured party himself.
- Claims arising from parts of the work in respect of which there are reservations in the acceptance report, until such time as these reservations have been rectified and the rectifications are reflected in a new report signed by the signatories of the acceptance report.
FIFTHLY, THAT IT IS WITHIN THE TIME LIMIT FOR MAKING A CLAIM.
The Construction Ordinance, establishes the following time limits for the exercise of actions relating to construction defects:
- The actions to demand the liability provided for in the previous article for material damage caused by the faults or defects, will be prescribed IN THE TERM OF TWO YEARS FROM THE DATE WHEN SUCH DAMAGE OCCURS, without prejudice to the actions that may exist to demand liability for breach of contract.
- The action of repetition that may correspond to any of the agents that intervene in the building process against the others, or to the insurers against them, will prescribe in the period of TWO YEARS FROM THE SIGNATURE OF THE JUDICIAL RESOLUTION that condemns the responsible party to compensate the damages, or from the date on which the compensation has been paid out of court.
STAGES OF THE JUDICIAL PROCEDURE FOR CONSTRUCTION DEFECTS
The judicial process begins with the presentation of a claim by the parties concerned. This claim must include all the background information of the case, such as construction contracts, expert reports, photographs, invoices and any other evidence that may support the claimants’ claims.
Once the claim is filed, a period of investigation begins during which the courts gather all the evidence necessary to make a decision. This may include technical reports, inspections of the affected property and witness testimony. During this phase, the parties also have the opportunity to present their arguments and additional evidence.
At the end of the investigation phase, the hearing or trial takes place where the final arguments are presented and a decision is made. The courts will evaluate the evidence presented and determine the responsibility of each of the parties involved. If it is determined that there are construction defects and that the defendants are liable, damages may be awarded.
It is important to note that the legal process gives all parties involved the opportunity to present their arguments and evidence so that justice can be done. In addition, this process provides a legal and transparent structure for resolving construction defect disputes.
In conclusion, the judicial process in construction defect cases is essential to protect the rights of those affected and to establish the liability of the parties involved. By analysing the evidence and arguments presented, the courts can make fair decisions and award appropriate compensation to claimants. This process ensures that the law is followed and that a fair solution is sought for all parties involved.
If you have a problem or defect with your home, please contact us for advice and the best possible solution.