Winning a case over building defects does not close the file on that building for good. When new construction defects appear that did not exist when the first claim was filed, the Spanish Supreme Court has just confirmed that a fresh claim is possible. Here is exactly where the line is drawn, and which time limits apply.
1. What the Supreme Court has decided
Judgment no. 625/2026 of 21 April, First Chamber of the Spanish Supreme Court (appeal 4337/2021, reporting judge the Hon. Ms Raquel Blázquez Martín) answers a question that comes up more often than one might expect: if a building has already been the subject of litigation over construction defects that ended in a final judgment, can the same professionals be sued again when fresh damage appears?
The Court’s answer is yes, with one clear limit. Res judicata does not prevent a claim for damage that had not yet materialised when the first claim was filed. What cannot be done is to use the new defects as a way of reopening matters already decided.
Put differently, the relevant question is not whether there was an earlier case about that building, but which specific damage was the subject of that case and which appeared afterwards.
2. The case: the roof parapets of a school
The dispute arose at the Hélade school, on calle Severo Ochoa in Boadilla del Monte (Madrid), built by a Madrid cooperative that had won the municipal tender. The works were formally handed over on 15 September 2008, with snagging items outstanding.
In October 2010 the roof parapet of the infant school block, the area used as a playground by the youngest children, began to collapse. The Town Hall issued an enforcement order and the cooperative had to demolish the original wall and replace it with an emergency solution using sandwich panelling, which altered the design of the building. In 2012 it sued the project architect and site manager and the technical architect, and Court of First Instance no. 5 of Madrid held them jointly and severally liable for carrying out all remedial works, in a judgment that described the situation as ruina of the building and which became final in 2016.
The difficulty was that in 2013 the parapets of the remaining blocks began to shift in the same way. The Town Hall issued further enforcement orders, the professionals who had been ordered to act did not even reply to the formal notice, and the cooperative again paid for the works out of its own pocket: 462,774.77 euros. With that invoice in hand it filed a second claim in July 2015.
The defendants pleaded res judicata and Court of First Instance no. 21 of Madrid stayed the proceedings. The Madrid Provincial Court overturned the stay, the lower court then upheld the claim in full, the Provincial Court (Section 25) dismissed both appeals, and the Supreme Court has now dismissed the cassation and procedural appeals, with costs against the appellants.
3. Why res judicata did not close the door
The preclusion rule in article 400 of the Civil Procedure Act has a requirement that was not met here
Article 400 of the Civil Procedure Act (LEC) requires a claimant to set out in the claim form every fact and legal ground known or capable of being invoked at the time of filing. It is the rule that prevents a single dispute from being split into successive lawsuits.
But the Supreme Court recalls that this preclusion has a precondition: the facts relied on in the second case must have been capable of being pleaded in the first. Here they were not. The first claim dates from 2012 and the works behind the second were imposed by municipal enforcement orders of June 2013. Quite simply, in 2012 that damage did not exist.
The Court also rejects the argument that they could have been introduced as new facts (article 286 LEC) or supplementary submissions (article 426 LEC), because both are subject to the same ceiling: they may not substantially alter the claims or their legal basis. Doing so would have amounted to an amendment of the claim prohibited by article 412 LEC.
The negative and positive effects of res judicata are not the same thing
They should not be confused, because in this case they operated in different directions.
The negative or excluding effect under article 222.1 LEC bars a second set of proceedings with an identical subject matter. That was not the position here.
The positive or prejudicial effect under article 222.4 LEC did apply, and in the cooperative’s favour: what the first case had decided about the cause of the defects and the liability of the professionals bound the second court as a logical antecedent. The Supreme Court stresses that this prejudicial effect attaches to the operative part of the judgment, but also to the reasoning where it forms the ratio decidendi.
What is genuinely closed
The limit is clear cut: damage that was the subject of the first case and covered by that judgment cannot be claimed again. That is why the parapet of the infant school block, already litigated, fell outside the reinstatement claim in the second case.
4. Time limits: the LOE guarantee period and the limitation period
These are two distinct periods and they are frequently confused.
Article 17.1 of Law 38/1999 on Building Regulation (LOE) sets the guarantee period, counted from handover of the works: ten years for damage affecting foundations, supports, beams, floor slabs, load-bearing walls or other structural elements that directly compromise the mechanical resistance and stability of the building, and three years for damage affecting habitability. The damage must appear within that period.
Article 18 LOE sets the limitation period for bringing the action: two years from when the damage occurs.
In this judgment the Supreme Court makes an important clarification. The Provincial Court had applied the three-year period, but the Chamber points out that, since the damage had been classified as structural in the first proceedings, the consistent guarantee period is the ten-year period under article 17.1(a) LOE. It also settles a point still argued incorrectly in practice: article 1591 of the Civil Code did not apply, because the works were governed by the LOE.
Permanent damage and continuing damage
This distinction determines when the limitation clock starts.
Permanent or lasting damage occurs at a given moment and persists over time, and may even worsen through factors unconnected with the defendant. Time runs from the moment the injured party becomes aware of it and can assess its extent, under article 1968.2 of the Civil Code.
Continuing damage, or damage of successive production, is damage where the cause is still operating. Here time does not begin to run until the final outcome occurs.
The courts classified this damage as continuing and fixed the starting point at the provisional handover of the repair works, on 10 September 2013. As the claim was filed in July 2015, it was not time-barred. The Supreme Court adds a practical point worth remembering: even if the damage had been treated as permanent, the claim would still not have been time-barred, because it was the professionals’ inaction, having ignored the formal notices, that forced the owner to carry out and pay for the works.
5. Reinstatement to the original design is not unjust enrichment
The appellants’ final line of argument was that, once the danger had been resolved by the emergency solution imposed by the Town Hall, ordering them to pay in addition for reinstating the building to its original design amounted to an unjustified windfall for the owner.
The Supreme Court rejects this squarely. Full compensation for material damage, the principle of restitutio in integrum, includes returning the building elements to the state and configuration they ought to have had. The injured party should not have to live with a functional, provisional solution adopted under non-negotiable municipal directions and under the pressure of an urgent risk, which detracts from the original conception of the building.
Practical scenarios
These are situations that regularly reach a real estate law firm, and where this judgment changes the approach.
The community of owners that already litigated over water ingress. It obtained a judgment against the developer years ago over leaks in the garage, and now cracks are appearing in the floor slabs of the upper floors. The fact that they share a construction origin does not automatically fold them into the first case: what matters is whether they had manifested themselves and could have been pleaded. What needs preparing is evidence of when they became apparent.
The owner who acts first because of an enforcement order. The municipal deadline is peremptory and the building professionals do not respond to the formal notice. Paying for the repair and claiming afterwards does not weaken your position, it strengthens it. It is worth documenting the notice, the silence, the project, the works certificates and the invoices, which is precisely what supported the award in this case.
The owner who is told the claim is time-barred. This is an almost automatic defence. Before accepting it, the damage must be properly classified: if the cause was still operating, time does not start until the final outcome. And the guarantee period under article 17 LOE must be kept separate from the limitation period under article 18 LOE, because conflating them often leads people to abandon a perfectly viable claim.
Summary: the key points
- A final judgment on construction defects does not close the building: damage that had not manifested itself when the first claim was filed can still be claimed.
- The preclusion rule in article 400 LEC applies only where the facts could have been pleaded in the first case.
- The negative effect of res judicata (article 222.1 LEC) and the prejudicial effect (article 222.4 LEC) are compatible and may operate in different directions.
- Damage already resolved in the first judgment cannot be relitigated.
- Guarantee and limitation are distinct: article 17 LOE (ten or three years from handover) and article 18 LOE (two years from when the damage occurs).
- With continuing damage, time does not start running until the final outcome.
- Reinstatement to the design as projected forms part of full compensation and is not unjust enrichment.
- Where the works are governed by the LOE, article 1591 of the Civil Code is not the route.
Do you need advice on defects in your building?
At Quikprokuo we have more than twenty-five years of experience in real estate and urban planning law in Madrid, acting for communities of owners, individual owners and developers alike. We assess whether your claim is still alive, which period applies to you and what evidence you need before taking any step.
You may also find it useful to read our articles on the judicial claim for vices or defects in construction, the responsibility of building agents, decennial insurance and the transfer of a property and the Building Technical Inspection in Madrid. If the matter concerns common elements, our horizontal property practice will also be relevant.
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