However long proceedings are dragged out, the end always comes.
The case we are about to describe is something of an anecdote since, although justice is slow, this is not how long construction defect claim proceedings usually take. Last April, Madrid Court of First Instance no. 9 ordered a well-known development company based in Móstoles to pay just over €113,000 in compensation to a homeowners’ association whose building it had developed.
During the proceedings, which lasted more than 6 years, the homeowners’ association has had to overcome countless obstacles, all of them devised through the developer’s tireless resistance to fulfilling its duty, that is, to answer for its poor construction work. In this case the developer tried to drag out the proceedings “ad eternum”, but despite this, in the end it will have to pay up.
But let us take things one step at a time. What problems led the homeowners’ association to file the lawsuit? Mainly three:
-A problem with access to the garage, caused by its up-and-over entrance door. Getting vehicles in and out is extremely complicated, requiring endless manoeuvres, and drivers have no choice but to encroach on one of the parking spaces in order to leave the garage.
-A problem of blockages in the stormwater drainage network, caused because the connection of the building’s sewer pipe has practically no drop in relation to the accessible main sewer of the public sewerage network
-Constant vibrations, whistling and air coming in through the windows of the homes, with thermal bridges, and therefore a loss of comfort and poor heating efficiency in the homes.
For all these problems, the developer now ordered to pay had “ways out” and “justifications”. It blamed the problem of access to the garage on the drivers’ lack of skill, the blockages in the stormwater drainage network on poor maintenance by the homeowners’ association, and the air coming in around the window frames on “logical and normal” natural ventilation.
But these arguments were perhaps the smallest obstacle that the claimant homeowners’ association had to overcome. The road to the judgment, 6 years after the lawsuit was filed, has been anything but easy:
-The developer met the pre-action formal demands with silence.
-Once the proceedings had started, the developer asked for the other parties involved in the construction of the building to be brought into the proceedings: the building contractor, architects and quantity surveyors. The homeowners’ association opposed this. The court decided to continue the proceedings against the developer alone. The developer applied for a review of that decision. The court stood firm and did not change its mind.
–The preliminary hearing and the trial were held two years after the lawsuit was filed. Judgment was handed down, upholding the claimant’s claim in full (our client).
-The developer appealed against that judgment. The case file was sent up to the Provincial Court of Madrid (Audiencia Provincial) to await its judgment. Around 2020, the appeal court handed down its judgment. To everyone’s surprise, it granted the request for third-party joinder that the developer had made years earlier. In other words, the appeal court forced the lower court to start again, that is, to repeat the proceedings, but this time with all the parties involved in the construction present: developer, building contractor, quantity surveyors and architects. The upshot: three years after the lawsuit was filed, we had to start from scratch.
-The preliminary hearing (in 2021) and the trial (in 2022) were held again. Now, if anything, it was even harder for us. We were up against 4 opposing lawyers and 4 opposing experts, one for each party to the proceedings (developer, building contractor, quantity surveyors and architects).
-In April 2023 judgment was finally handed down again. Once again it was emphatic. Overwhelming. Leaving no room for doubt or hesitation. It upheld the claim in full, ordered the developer to pay the homeowners’ association just over €113,000 in compensation, and also ordered it to pay the legal costs of all the parties involved.
-In other words, the developer will now have to pay not only the legal costs of the claimant homeowners’ association, but also those of the other parties it so stubbornly insisted on bringing into the case (the building contractor, architects and quantity surveyors). Although it has come late (6 years have passed since the lawsuit was filed), it seems that the developer’s highly belligerent strategy is going to have serious financial consequences for it.
Incidentally, although amid so many procedural obstacles the construction problems originally claimed seem to have taken a back seat, it is important to know the judge’s decision on them:
-The problem of access to the garage is by no means attributable to novice or inexperienced drivers. It is a failure to comply with the regulations on the minimum dimensions that the entrance must meet. The door must be replaced and the parking space that is encroached upon every time a vehicle leaves the garage must be relocated.
-The problem of blockages in the stormwater drainage network is not due to poor maintenance. Far from it. The developer had maliciously concealed a key document: a declaration of responsibility that it signed at the time with Canal de Isabel II, as soon as the works were completed, under which the developer accepted liability for the problems that the sewer pipe connection was undoubtedly going to cause. Canal de Isabel II knew that, without a drop at the sewer pipe connection, flooding and blockages would be constant. That is why it had the developer sign that document, to release itself (Canal de Isabel II) from any liability for the harm that such an outrageous installation of the stormwater drainage would cause. The problem is that the developer concealed this document from the owners when selling the homes. Fortunately, the document came to light during the proceedings, thanks to the work of the claimant homeowners’ association’s law firm.
–The problem of air coming in and thermal bridges through the windows of the homes is due to their poor installation. It is neither natural ventilation nor incorrect operation of the closing mechanism by the owners. It is poor construction work. It is also very annoying for the owners, since on the one hand it means living constantly with whistling, noise, and unwanted cold and heat. And on the other, it means a huge increase in the electricity bill, as the air-conditioning/heating units have to be overworked because of the poor insulating performance of the windows.
In this case, justice has been maddeningly slow (a slowness also deliberately caused by the defendant). Slow, but devastating. Dragging out proceedings does not always work out well for those who use that strategy.
Any questions?