Bringing a construction defects lawsuit

THE ESSENTIALS YOU NEED TO KNOW TO BRING A CONSTRUCTION DEFECTS LAWSUIT

1. Limitation period for the action

The damage must become apparent within one year for defects in finishes, three years for defects that may affect habitability and ten years for structural or foundation damage.

But the action must be brought within two years of the damage becoming known.

The limitation period does not start to run until the full extent of the damage has been quantified by the injured party, and that cannot happen until technical reports are available; this is what determines the start of the limitation period.

2. What kind of serious defects or damage are we talking about?

• It must be an unlawful, wrongful or negligent act or omission by a party involved in the construction, affecting a building in the form of harm or damage.
• The party must be at fault, with a causal link between the act or omission and the damage caused.
• Damage or harm is understood not only in its literal and strict sense, but in a broader sense that covers not only defects involving an immediate or current total or partial collapse of the building, but also serious defects that give rise to fears of its loss and that affect its elements.
• The parties considered liable for the damage are those who should have foreseen the events that caused the damage that is to be repaired.
• It is also a broad, forward-looking concept, meaning that those parties could have foreseen the appearance of the damage.
• Their negligent conduct made living in the home arduous, irritating, uncomfortable and unpleasant.

3. Why is the developer liable?.

For the following reasons:

1. A) The works are carried out for its benefit.
2. B) They are intended for sale to third parties.
3. C) The third-party purchasers relied on its commercial reputation.
4. D) It was the developer who hired and chose the building contractor and the technical professionals; and
5. E) Taking the opposite view would leave future flat buyers unprotected.

4. Why the architect and the technical architect (quantity surveyor) are also liable.

Because it is the architect’s duty to study the design and to oversee and supervise the works in general, while it is the technical architect’s duty to organise and direct the execution of the works.

Sometimes the technical architect tries to avoid blame by claiming that the defects found, and everything that was done, were done on the architect’s orders…

On the other hand, the architect sometimes denies liability, arguing, contrary to what the quantity surveyor says, that the design was properly drawn up in accordance with the regulations and that the construction defects are due to poor execution of the design….

Well, whether or not it was provided for in the design, both professionals are liable for the poor execution of the works, since the architect is responsible not only for creating the design but also for the overall direction of the works, that is, for overseeing and supervising them.

In short, the technical professionals are responsible for control, supervision and the physical execution of the works.

5. Why are all the defendants (sometimes) ordered to pay legal costs jointly and severally?

Because the co-defendants have shown recklessness in litigating: they knew about the existing defects and made no attempt to reach an agreement to resolve them, which led to the lawsuit being filed (… giving rise to fees for the lawyer, the court representative (procurador) and the architect’s expert report, use of the justice system, delay, and wear and tear on the owners, living uncomfortably in their homes, with the stress of pursuing and paying for an expensive lawsuit without being sure of an outcome that may go against them……)