Case law on habitability damage

Further to our previous article on whether various defects are classed as habitability defects and the impact this has on claiming within the time limit, we set out below a brief review of case law on different types of damage that the courts have classed as habitability damage.

CASE LAW: JUDGMENTS HANDED DOWN BY PROVINCIAL COURTS CLASSING VARIOUS TYPES OF DAMAGE AS HABITABILITY DAMAGE.

• Damp caused by water ingress.

Audiencia Provincial de Alicante (Sección 5ª)

Judgment no. 156/2015 of 12 June. JUR 2015\201163

Prevailing case law is clear in finding that such damp affects habitability, in addition to preventing the necessary weathertightness of a property.

The remaining pathologies of damp caused by water ingress through the roof and in the basement used for garages and storage rooms are considered to fall under section b). As stated in the judgment of Section 8 of 22 March 2012 in a similar case, “under article 3.1.c.1 of the Spanish Building Act (Ley de Ordenación de la Edificación) , one of the habitability requirements is weathertightness of the indoor environment of the building, which is breached by the damp caused by the construction defects for which the appellant has been held liable, so that these are defects affecting habitability as provided for in article 17.1.b of that Act “

• Damp in garages and storage rooms.

Audiencia Provincial de Madrid (Sección 14ª)

Judgment no. 97/2014 of 4 March. JUR 2014\113559

Both damp in homes and damp in various communal areas of a building have always been considered by case law to constitute functional ruin (Supreme Court judgments of 27 April 2009, 5 July 2008, 13 February 2007, 26 March 2007, 5 June and 10 September 2007, 2 October 2003, and 28 May and 24 January 2001). And this has been so for a long time: for example, the judgments on construction defects causing damp classed as ruin-causing of 30 November 1993, 18 November 1996 and 5 March 1998, all three concerning damp in basements; 25 June 1999, concerning damp in walls and ceilings; and 9 March 2000 and 28 May 2001, which refer to water ingress affecting storage rooms and garages of a building caused by rises in the water table of a nearby watercourse. In other words, damp in homes constitutes functional ruin and damp in non-habitable spaces, that is, the garage and commercial premises, also constitutes functional ruin.

This concept includes deficiencies that give rise to fears for the loss of the building, make it useless for its intended purpose or unsuitable for its natural use (functional ruin) and also those which, by going beyond ordinary imperfections, amount to a breach of contract; thus case law has classed as ruin-causing defects, among others, inadequate waterproofing, damp, water ingress and cracks.

Damp is not merely a finishing or aesthetic defect, because it entails a failure to meet the functionality requirements and even, in the long term, the safety requirements (damp ends up breaking down materials and can cause ceilings to collapse, etc.), and such damp, in itself and together with all the other defects found proven in the judgment under appeal, mainly cracks in communal areas and homes and defective joinery in homes, constitutes functional ruin in that it does not allow satisfactory use of the building and prevents or seriously hinders its intended purpose.

• Unsealed expansion joints.

Audiencia Provincial de Madrid (Sección 20ª)

Judgment no. 304/2013 of 24 June. JUR 2013\265317

the damp that is still active corresponds to this failure to seal the joints, as well as to the poor design of the drainage channels on the garage ramps; the ruling on all of them must be upheld since, as stated in the expert report itself, this constitutes a design defect, given that there is no item whatsoever for sealing those joints, nor for the correct design of the drainage channel on the ramp. But the Technical Architect must also be held liable, since it is also a defect of works management and site management, given that there is no instruction regarding the sealing on any page of the site order book; and even a defect of material execution, since sealing of this kind can also be required of a building contractor with sufficient technical competence to carry out works of this scale (folio 3,305); which he reiterated when ratifying his report at trial. A view we clearly share, since it is elementary to provide, from any perspective, and all the more so from the perspective of any of the different parties involved in the construction process, for the sealing of joints to prevent the resulting damp, which clearly affects habitability.

• Defective non-slip flooring on a ramp.

Audiencia Provincial de Valencia (Sección 8ª)

Judgment no. 197/2013 of 2 May. JUR 2013\255958

On 22 July 2010, the homeowners’ association of EDIFICIO000, located at number NUM000 of PLAZA000, Benitachell (Alicante), essentially on the basis of article 17 of Act 38/1999 of 5 November (RCL 1999, 2799) , the Spanish Building Act, brought an ordinary proceedings claim against the company Vallés Espacios Urbanos S.L., as developer-contractor and also seller, and against Don Fermín, as architect and works director, seeking a judgment ordering them jointly and severally, or alternatively in proportion to each one’s degree of liability if it could be individualised, to carry out the repair works, with technical inspection, to remedy the serious construction defects, or, as the case may be, to pay compensation in lieu equal to the value of those repairs, with an express order to pay legal costs

1. A) In communal areas: – Rusted and deteriorated railings and metalwork. – Poor or non-existent paint finish causing rainwater ingress. – Defective covering of the external staircase and excessively slippery flooring. – Poorly made or defective falls for channelling and draining rainwater on the staircase and external corridors (the shape of the falls sends rainwater towards the inside of the homes). – Stains caused by water ingress. – Widespread damp stains on all walls. – Lack of soundproofing and vibrations from outdoor air-conditioning units above the bedrooms. – Serious waterproofing problem, causing very significant water ingress in corridors, communal areas, the lift shaft and the garage. All of this caused by the defective construction of the roofs and the falls of the building’s corridors.B) In private areas : – In homes NUM001, NUM002, NUM003, NUM004, NUM005, NUM006, NUM007, NUM008, NUM009, NUM010, NUM011 and NUM012, water ingress, external joinery in poor condition and lack of sealing. Damp on walls and ceilings as a result of water ingress and lack of waterproofing. Cracked and flaking paint due to damp. Incorrect roof falls, so that the slope runs away from the drains, with consequent ponding of water and water ingress into the homes (…)

Mr Fermín was ordered to install non-slip elements on the staircase and corridors, and Vallés Espacios Urbanos S.L. to carry out the same work, jointly and severally with the architect, and in addition to carry out the repair works declared necessary for the other defects still present in the building, namely the paint finishes in the communal areas, the flooding of the lift pit and the correct execution of the falls of the private terraces on the top floor

• Parapets without drip grooves.

Audiencia Provincial de Cantabria (Sección 2ª)

Judgment no. 293/2013 of 16 May. JUR 2013\353000

As regards the order to carry out the repair works to the drip groove system already mentioned and the painting of the façades, this appellant argues that it should be overturned because they are not its responsibility under article 12 of the LOE. However, the interruption of the drip groove is not a mere finishing problem, but affects the very function of the drip groove of protecting the façade and allowing water to fall without clinging to the wall, so that it is a habitability defect because it affects a functional element of the construction elements (article 3.1.c of the LOE) and has an impact on the satisfactory use of the building; furthermore, this interruption of the drip groove is shown to be a contributing cause of the damage to the façades, which appears most extensively at the points where the system is interrupted, as stated by the expert Mr Juan. Given that the decision on how the roof terraces and their railings would finally be built was taken by the works director, his liability for this defect, which is widespread and was not prevented by the precise instructions he was required to give under article 13.2.c of the LOE, must be affirmed, since he has not shown that the defect is due merely to imperfect execution of his precise and sufficient instructions; it should be remembered that in this area, once the existence of the defect and the damage has been proven, it is for the party seeking to be exonerated to prove that it diligently fulfilled its obligations (Supreme Court judgments of 28 April 2008 and 31 May 2000). Therefore, in short, the order against this appellant must also be upheld, both for the repair works to the drip groove system repeatedly referred to and for the painting of the façade, in accordance with the ruling under appeal.

(…) The appellants are right in maintaining that they are not liable for the absence of a rainwater collection system on the roof terraces; the defect consisting of rainwater falling freely, in breach of municipal regulations and affecting the satisfactory use of the building, is essentially one of building design at that point, resulting from the decision of the architect acting as works director during the works, so that the repair of this defect, with the consequent installation of a drainage system as ordered, cannot extend to the technical architects, whose role and duties under article 13 of the LOE do not include taking or changing that decision.

2.- However, the foregoing does not allow these appellants to be released from all liability for the damage to the façade and the other contributing defect, namely the interruption by the railings of the drip groove formed by the flooring; since, as is clear from the reports of the experts Mr Juan and Mr Barrio, the continuity of a drip groove system is necessary for it to be effective, it is clear that the interruption in question amounts to poor workmanship contrary to the “lex artis” which the technical architects should have prevented in the performance of their duties (article 13.2.c), which the very existence of the defect shows they did not do, nor have they shown that their conduct followed a specific and express instruction from the works director. Therefore, these technical professionals are also liable for correcting the defect and repairing the damage to which it has contributed, such as the painting of the façades, since this damage is not due to a mere finishing defect, as alleged, but is the consequence of a functional defect, as already explained.

• Stains on the garage flooring and drainage system.

Audiencia Provincial de Toledo (Sección 2ª)

Judgment no. 321/2015 of 16 October. JUR 2015\303170

In short, the limitation defence must be dismissed, and for the sake of brevity we refer to each and every one of the findings of fact and law set out so commendably and precisely in the second legal ground of the judgment handed down, which we consider reproduced here insofar as they are not undermined by the arguments, also set out exhaustively, in the appeal.

We also believe that the defendants are not “deprived” of a ruling on the possible time-barring of the claim in respect of the damage which it classes as “ completion and finishing defects “, which include, by way of example, water ingress into the garage (basement floor) from the inside in the areas corresponding to the drains and grilles, due to poor installation of the waterproofing around the drains. This, like many others listed in a considerable enumeration, represents defects or pathologies that may result in insufficient or inadequate waterproofing of the various structural or envelope elements of the building, significantly affecting its habitability, all the more so if they are not corrected with the necessary diligence not only in drafting the Construction Project, but also in its execution, including the partial projects that develop or supplement it. On the other hand, from the point of view of the liabilities imposed by the Spanish Building Act, the certificate of completion is of essential importance, as the works director must certify that the works have been carried out under his direction and are ready for proper use. Simply looking at the photographs included in the various technical reports shows that the water ingress into the garage, or into the interior of various homes, significantly affects the habitability of the building and goes beyond (especially in its consequences) mere “completion and finishing defects”.

• Poorly executed falls and drains.

Audiencia Provincial de Ourense (Sección 1ª)

Judgment no. 230/2015 of 22 June. JUR 2015\175238

The claimants have submitted an expert report issued by the technical architect Don Fernando, which states that the flat has damp affecting the paint and plaster finishes in rooms next to the inner terrace, caused by water ingress from the terrace, and damp in the rooms facing the façade, originating from water ingress through the façade. In the first case, the cause is the incorrect design of the terrace falls and inadequate positioning of the drains for collecting water

In the present case, the pathologies found in the home by the technical experts, which are confirmed by the photographs attached to their reports, are so significant that they go beyond what could be described as simple completion or finishing defects. They are serious and widespread defects affecting habitability, going beyond mere ordinary imperfections, and must be considered, taken as a whole, to make normal use and habitability of the home difficult or burdensome, rendering its use bothersome and uncomfortable, and in that sense they must be regarded as ruin-causing defects, there being a causal link between these pathologies and the process of constructing the building.

According to the expert report submitted by the defendant, prepared by the technical architect Don Iván, the construction project for the building does not specify the construction details or the falls needed to build the terrace with the proper guarantees.

Furthermore, the installation of the drains was defective, as was the waterproofing system in general, since it was not finished with the detail and precision needed to perform its function properly. From this the expert concludes that the defects are attributable both to the technical professionals involved in the works and to those who carried them out, without further specifying their respective liabilities

• Problem at the junction between a landscaped area and a vertical wall.

Audiencia Provincial de Zaragoza (Sección 5ª)

Judgment no. 215/2013 of 18 April. JUR 2013\181524

In a case very similar to the present one, brought by another homeowners’ association but against the same building contractor as defendant, on the basis of similar building defects, this Court has recently handed down two judgments, dated fifteenth of November two thousand and twelve and twenty-second of January two thousand and thirteen, which resolve the same issues as those now raised, so the reasoning and rulings in them must essentially be followed.

(…) given the nature of the damage caused, clearly due to workmanship and affecting many parts of the construction, the provisions of letter a of article 17 of the Spanish Building Act must be applied, where it states: “For three years, for material damage caused to the building by faults or defects in the construction elements or installations that result in failure to meet the habitability requirements of section 1, letter c), of article 3″, a period that has not elapsed, bearing in mind moreover that this is continuing damage that is still occurring, so that the corresponding claim can be brought at any time while it is being caused. According to the expert evidence taken, the damage originates solely and exclusively in construction defects, relating to the material execution of the works, finishing or detailing, which are undoubtedly attributable to the defendant company, which has not acted in accordance with the rules of its lex artis, which it must know without needing to receive express instructions, as when it is stated that water penetrates inside the render due to a poor junction between the roof flashings and the vertical walls because it lacks a suitable flashing or proper execution of one, and there is no reason to attribute it to lack of maintenance or care or to any other works subsequently undertaken by the claimant homeowners’ association or to conduct that could be considered negligent on the part of any other professional involved in the construction process, such as works management or site supervision, in which case the defects would have been more widespread, rather than specific, detailed and particular; therefore the judgment of the Court of First Instance must be upheld on its own accurate and reasoned grounds, in accordance with the evidence in the proceedings, which this Court expressly accepts, and which is not contradicted by any other evidence taken nor by the arguments set out in the appeal, it being worth repeating that the expert report taken must be followed, and the case must be decided in accordance with its content.

• Small hairline cracks and cracks.

Audiencia Provincial de Barcelona (Sección 11ª)

Judgment no. 281/2015 of 12 November. JUR 2016\10069

The opposing party objects, alleging that these are not ruin-causing defects and that none of them affects the habitability of the homes; as regards the first two (the hairline crack in the expansion joint of the main façade and the crack in the enclosure of the light well), it alleges that all the experts have confirmed that they are merely aesthetic, and as regards the ruin due to lack of settlement of the external staircase, the settlement problems causing the cracks in no way affect habitability, nor does the detachment of floor tiles in the homes. Furthermore, the claim brought has already expired, as the one-year period for finishing defects (which, it says, covers all the pathologies claimed) has long elapsed. It adds that, in addition, the expert reports do not confirm the defendant’s liability for the defects claimed.

In the case under examination, the claim was filed when the three-year guarantee period had not yet ended. As regards the view that liability for the pathology lies with the defendant Jose Ángel, it must be taken into account that, as follows from the Supreme Court judgment of 16 April 1996 and is repeated in that of 7 May 2001.

Nevertheless, each case must be assessed individually, to determine whether a specific item of damage can be classed as habitability damage; in general terms, this is damage that impairs or may affect the habitability of the homes, and which therefore falls within the 3-year guarantee period under the LOE. For this, it is very important to have an expert specialising in construction defects and lawyers specialising in construction law.