What can the owner of a flat, parking space or storage room argue, and on what grounds, if they bring a lawsuit against the developer-seller for defective performance of the contract because what they bought has defects, in order to support a claim for breach of contract by the developer-seller?
In cases of construction defects, the owner of a new-build home can rely both on the specific guarantees of the Spanish Building Act (Ley de Ordenación de la Edificación, LOE) and on the contractual liability of the seller or of the people they personally hired (architect, quantity surveyor, building contractor…).
The Supreme Court has held that the liability of those involved in the construction process is fully compatible with bringing contractual claims where there is a contract between claimant and defendants, so that the LOE guarantee periods do not prevent the claimant buyer or injured party from bringing proceedings against those who contracted with them in order to demand full performance of what was agreed, whether the building defects are so serious that they can be classed as ruin (former article 1591 of the Civil Code) or amount to defective performance.
The developer, who is usually the seller, is obliged as such under the contract to deliver the property in a condition fully fit for its intended use. Furthermore, if the building suffers from building defects that make it unfit, the developer is also liable to the buyer for those defects. As case law puts it, the home handed over must be as good as the money paid as the price, which was not clipped or broken.
The developer is obliged to deliver the property in good condition, and if it has defects attributable to other parties involved in the construction, it cannot escape liability by pleading the liability of third parties linked to it through subcontracts. It is ultimately responsible. This is known as culpa “in eligendo”. The developer takes on as its own the work done by others, carried out by people or subcontractors during the works whom it chose and trusted, and if it then sells the result to the buyers of the flats, it cannot argue that it was not the one who did the work but the contractor.
The same would apply to professionals hired directly by the injured party. A self-builder can perfectly well claim against the architect they hired for a design defect, or against the quantity surveyor and building contractor they paid for a problem in the execution of the works, by proving their professional negligence.
As we have said, in the event of such a breach, the contracting party, now the owner, can take legal action with a longer time limit than under the LOE, although the 2015 amendment of article 1964 of the Civil Code reduced the limitation period for contractual liability claims from 15 to 5 years.
They must pay the damages provided for in article 1101, which states that “Those who, in the performance of their obligations, act with wilful misconduct, negligence or delay, and those who in any way contravene the terms thereof, shall be liable to compensate for the damage caused.”
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DPcon Reclamación Daños Constructivos.
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