If a building is defective, the parties will always be liable for the damage.
Some things are textbook stuff. Not a lofty, complex treatise full of sophisticated doctrinal or case-law concepts, but a “first-year” textbook, the very first primer on construction law:
In one of our cases, filed at a Court of First Instance, we claimed that in a house practically the entire home was affected by damage: vertical and horizontal cracks, cracks in the external walls of the façade; cracks on the inner and outer faces of the enclosing walls; cracks and hairline cracks where the brick leaves meet the concrete columns; cracks around the openings in the walls; diagonal and horizontal cracks starting at the corners; cracks in ceilings in various directions; cracks in partition walls; cracks around the perimeter of the stairwell, cracks in the supports of the roof wall copings; problems of water ingress and damp in various rooms, etc.
The house had only just been built and nothing was time-barred.
And despite all this damage, the judge of the Court of First Instance concluded that the professionals sued as co-defendants bore no liability whatsoever for causing any of it.
- First, because the judge considered that the foundations had been properly executed according to the design ”..and it is not possible to know exactly what the cause of this damage is”. (but there were cracks)
- Second, because, as regards the damp caused by water ingress, waterproofing was not necessary and the watertightness and run-off tests had been properly carried out (despite this, there was damp caused by water ingress).
- Third, because, as regards the defective waterproofing of the terraces and the leaks in the false ceilings, the cause could not be identified either, so it could not be considered either a design defect or a construction defect.
In short, the judge concluded that the foundations had been built correctly, in accordance with the design. So what? As if the design were the Gospel.
In our view, the judgment was utterly absurd, and its reasoning a tremendous blunder, with conceptual errors resulting from ignorance of the case law, legal doctrine, the law and the courts’ practice.
Fortunately, the client believed in us and we were able to appeal, and the Provincial Court overturned the judgment, holding that all the defects have a specific origin, regardless of whether or not it has been possible to determine that origin through the evidence taken in the proceedings.
The Court reiterated that once the damage has been proven, there can be no ruling acquitting the defendants simply because its cause has not been made sufficiently clear, since that would be tantamount to accepting as natural that a new build should be riddled with cracks and hairline cracks, without anyone being held liable.
The Court ruled that if a building is defective it is culpable in itself, and it will be presumed that there is a negligent act or omission by the party concerned, who will always be liable for the damage.
The Court reiterated (something well known and stated on the first page of the textbook/primer) that, because the burden of proof is reversed, the injured party is only required to prove that there is damage linked to the actions of the parties involved and that it has occurred within the guarantee period; the parties involved in the construction process only escape liability, and the damage cannot be claimed from them, if it is proven that it was caused by an unforeseeable event, force majeure, the act of a third party or the injured party itself”.
Another error by the first-instance judge was his reasoning that the damp caused by water ingress between the external joinery and the enclosing walls, with the resulting stains, mould and deterioration and detachment of the interior finishes, was due to a sealing and maintenance defect (since the sealant can gradually disappear over time). He therefore blamed the owner of the home for lack of maintenance.
Thankfully, despite this further serious conceptual error by the first-instance judge, the Provincial Court overturned the judgment on that point too, ordering the architect to pay for failing to include a correct construction solution in the design, since watertightness had been entrusted solely to the application of a PVC seal. The fact that waterproofing is not mandatory does not exempt the architect from having included in the design a measure to prevent the more than foreseeable leaks that rainwater could cause, since the PVC seal (which the first-instance judgment itself acknowledges disappears over time) appears insufficient for that purpose.
If the technical architect carried out watertightness and run-off tests, they were obviously not done properly, since the damp appeared shortly afterwards. The damage cannot be attributed to the owners (for lack of maintenance), since the defects appeared within the guarantee period. All this is stated by the Provincial Court.
It seems to us that judges (stand-in judges or inexperienced ones), certainly without any bad faith, sometimes appear not to attribute any liability to the professionals sued as co-defendants because it is complicated to establish the cause. Yet nothing could be easier than following the textbook/primer and learning from it, which essentially says that, once the damage has been proven, if none of the defendants (architect, quantity surveyor, developer) has proven an unforeseeable event or force majeure, the solution is not to let them off, because that leaves the owner of the newly built home without compensation. But what would have happened to the owners if they had resigned themselves and not appealed the first judgment? They would have been left with an unjust judgment, lasting frustration and a loss of faith in justice, lawyers and the country. Fortunately, thanks to the client’s firm stance, that did not happen.
Any questions?