There are times when we have brought legal claims because the wall surrounding the property is cracked, has poor foundations and is falling down, and we want the developer to answer for it.
The first question is how to claim for the damage to that wall -which costs a significant amount to repair- when we do not know, -or at least cannot prove- that it belongs to the property. Or rather, we do know, but when we look for it in the title deeds, etc., it does not appear as a “wall”: the description of the communal areas forgot to mention it, and it only says …that there is a swimming pool,…a garden or landscaped areas,…a meter room….access to the garages; but that wall is not described. And it cannot be seen on the plans.
But of course there is a wall, and it is broken. The developer is delighted with that ambiguity. To prove its existence we have to rely on CIRCUMSTANTIAL EVIDENCE:
* Firstly, the wall is aesthetically and functionally integrated into the building, following a similar line and having the same colour. And the wall separates the homes from the street.
* Secondly, the wall performs a safety function, a basic requirement of any building under article 3.1.b.3) of the LOE, which requires “safety of use, so that normal use of the building does not pose a risk of accident to people”.
* Thirdly, the “meter room” housing the water, electricity and telecommunications meters did appear in the title deed, and that small building is attached to the wall.
The circumstances set out above therefore lead to the conclusion that the wall was built at the same time as the development and, consequently, there is an obligation on the developer to repair it.
All this reasoning applies to other constructions that do not appear in the title deed, but which were obviously built by the developer, -even if it refuses to acknowledge this-, and which, through circumstantial evidence and without a photograph or plans from when they were built, PROVE that they have always been part of the building. If you have any questions about this or any other matter concerning claims for construction elements of a homeowners’ association, please consult us.
Any questions?