This may not be the most popular article we have published, but what it describes happens frequently
Once judgments on building pathologies have been handed down, sometimes those who benefit from them try to extend their effects, or even to claim, by stretching them, what they did not claim at the time.
Even where there is a judgment stating that the defendants (the architects, the developer or the insurer) are liable for the defects and pathologies that have arisen as a result of their deficient work, whether in the design or in the execution of the works referred to in the lawsuit, not everything goes under that principle.
If something has been claimed, or a judgment has been given against the developer, the architect or whoever it may be, for defects in a building, they will not be liable for:
Invoices for damage that was not claimed, however liable they may be; the fees of private experts who have assessed the owners’ properties on their own initiative (“even with photographs”); repair works to private or communal areas not covered by the judgment or the lawsuit; or even works designed by the architect in charge of enforcing the judgment that do not keep to the report of the architect in the main proceedings, who set the guidelines, or which the judge followed in reaching the ruling. The project drawn up to enforce the judgment is one thing, and the repair awarded in the judgment is another, and they are sometimes very different.
It must also be borne in mind that the judgment will address only what was sought in the lawsuit. This means that if the subject matter changes during the proceedings, because things are repaired or other damage appears, what was set out in the lawsuit cannot be altered and, consequently, the relief sought cannot be exceeded (granting more than was asked for), because enforcement must be in accordance with the judgment, and this judgment, if it upholds the claim, must correspond to what-is-sought-in-the lawsuit.
When enforcing the judgment, the judge cannot depart from what is laid down in its ruling. Therefore, in enforcement proceedings, issues that were not addressed or decided in the ruling, or which bear no direct and immediate causal relationship to it, cannot be resolved, because if matters are introduced that are not in the ruling, or requests are squeezed into the ruling that were not clearly and expressly sought in the lawsuit, the rights of the defendants are infringed, since on those issues the debate and adversarial process inherent in all litigation have been bypassed.
Any questions?