This scenario is more common than we think: we move into a new home that has cost us many years of savings and, within a few months, the first cracks in a partition wall appear, a damp patch shows up on the bedroom ceiling or the living room floor starts to lift. In these situations, is it worth reporting latent defects?
The honest answer is that it depends, because first, to avoid any confusion, we need to clarify what latent defects are and what building defects are. We explain it below.
We say this because at DPcon we have had to explain it on countless occasions in order to agree with our clients how to act correctly in each case. As professionals specialising in claims for construction defects and latent defects, we want to set out, for the benefit of all readers, when it is worth claiming against the building contractor or developer, what the step-by-step process is, which deadlines we must not miss and why the expert report is, almost always, the piece that decides whether you win or lose. We look at it from the financial, administrative and emotional perspectives, because a claim is not measured in euros alone.
Latent defects and construction defects: not the same thing (and this changes everything)
Before deciding whether it is worth reporting latent defects, it is worth clarifying a point that always causes controversy. Are latent defects the same as construction defects? No, they are not.
Latent defects (Civil Code): the route through the sale
Latent defects are, strictly speaking, defects that already existed at the time of the sale, that were not visible to the naked eye and that make the home unfit for use or significantly reduce its value. They are governed by article 1484 of the Civil Code, as part of the seller’s warranty against defects. This is the usual route when you buy a second-hand home and discover a defect that the seller concealed from you.
The drawback of this route is its deadline: the warranty action expires 6 months after the home is handed over (article 1490 of the Civil Code). It is a very short and little-known period, which leaves many buyers out.
Construction defects in new builds (LOE): the route against the contractor and developer
When we are talking about a new home with “faults” or “construction defects”, what normally applies is not the latent defects regime but the Spanish Building Act (Ley de Ordenación de la Edificación, Law 38/1999, LOE). This law sets out guarantees over different periods, depending on the seriousness of the defect:
- 1 year for defects in finishes (the contractor is liable): paintwork, tiling, joinery, minor finishing details.
- 3 years for habitability defects: damp, water ingress, inadequate thermal or sound insulation, installations that do not work properly.
- 10 years for structural defects: those affecting the foundations, beams, floor slabs, load-bearing walls or supports and compromising the stability of the building.
Here we can bring a claim against the developer, the building contractor, the architect or the technical architect, depending on who is responsible for the defect, and even against the insurer providing the 10-year structural insurance (seguro decenal). In addition, the right to claim becomes time-barred two years after the damage occurs (article 18 of the LOE), a much more generous period than the one for latent defects.
“Report” or “claim”: the right word matters
At DPcon we would point out one last relevant nuance on this subject: although we colloquially talk about “reporting” latent defects, in legal terms it is almost never a criminal report (which belongs to criminal law). What is filed is a claim which, if no agreement is reached, ends in a civil lawsuit. So, rather than asking whether it is worth reporting latent defects, it would be more accurate to talk about asserting our rights through the civil courts.
So, is it worth taking action over latent defects?
In our experience in this field, yes, it is worth claiming when these three conditions are met at the same time:
- The defect is real, serious and provable. Not a minor cosmetic scuff, but something that affects the use, safety or value of the home, and that can be technically proven.
- The cost of repairing it (or the loss of value) is significant compared with what the claim will cost. If fixing the defect costs €400, a lawsuit is probably not worthwhile; if we are talking about thousands of euros, the balance shifts.
- We are within the deadline. The right to claim has an expiry date and, once it has passed, there is no going back.
When these three pieces fit together, it is certainly worth taking action over latent defects (construction defects). It would be the most sensible thing to do, since the owner ends up paying for the repair if they do nothing. When any of them is missing, it is worth thinking it over very carefully. In the following sections we break down the reasons for and against so that you can make your decision with all the information.
How to claim for latent defects step by step
We review and explain the usual course of a claim for defects in a new home. The better the early stages are handled, the stronger our position will be if the case goes to trial.
1️⃣ Detect and document from day one
As soon as the defect appears, photograph it and record it on video with the date. Note when it was detected and how it has developed. Keep all the purchase documentation: title deed, contract, specifications, plans and the development’s advertising (advertising that promised certain things can work in our favour).
2️⃣ Commission an expert report
An independent architect or technical architect inspects the home and determines the origin of the defect, whether it is a construction defect, how serious it is and the cost of repair, by means of an expert report. It is the most important step of all.
3️⃣ Make a formally verifiable claim (out-of-court route)
Before going to court, the defect is notified to the developer or contractor by burofax (formal registered letter) with acknowledgement of receipt and certified content. This interrupts the time limits, provides proof that you claimed in time and, very often, opens the door to an agreement without the need for a lawsuit.
4️⃣ Negotiate or try mediation
Faced with a solid expert report and a well-prepared claim, many developers prefer to repair or pay compensation rather than risk a trial they could lose with an order to pay legal costs. A good out-of-court settlement is usually quicker and cheaper than going to court.
5️⃣ File the lawsuit
If no agreement is reached, the lawyer files the lawsuit with the Court of First Instance, together with the expert report. At this stage both a lawyer and a court representative (procurador) are involved.
6️⃣ Trial and judgment
The evidence is taken (the expert confirms and defends their report before the judge, a key moment) and the court delivers its judgment. If it rules in our favour, it will order the defects to be repaired or you to be compensated, and frequently the payment of legal costs.
7️⃣ Enforcement
If the losing party does not comply voluntarily, enforcement of the judgment is requested so that the payment or repair is actually carried out.
Reasons to take action over latent defects
We can think of several, which we have grouped by area:
From a financial perspective
The main reason is obvious: if we do not claim, the new owner pays for the repair. When the defect is attributable to the contractor or developer, it makes no sense to bear a cost that by law is theirs. On top of this, we can claim not only the repair but also the loss of value of the home and, where applicable, any resulting damages (for example, if we have had to be rehoused). And if the claim succeeds, the other party usually bears the legal costs of the proceedings, which greatly reduces the final outlay.
From an administrative and legal perspective
Claiming stops the limitation clock and strengthens the claimant’s position. A small defect today can become a serious one tomorrow: keeping a record by burofax and expert report protects you if the problem gets worse. In addition, the LOE is designed to protect the buyer, with clearly liable parties (developer, contractor, technical professionals) and 10-year structural insurance backing structural damage.
From an emotional perspective
This dimension is hardly ever mentioned, yet it is the one that weighs most in day-to-day life. Living in a house with damp, cracks or defects causes stress, frustration and helplessness. Claiming is also a way of regaining control, in other words, no longer feeling at the mercy of the developer and placing the matter in the hands of a regulated procedure. For many people, the peace of mind of knowing that their home is safe and of having asserted their rights is worth as much as the compensation.
Reasons not to take action (or to think it over carefully)
Points to bear very much in mind before going ahead, once we have established whether it is worth taking action over latent defects:
From a financial perspective
Not every claim is worthwhile. If the cost of repair is low, a lawsuit does not pay off. Bear in mind that between the expert report (which can cost between €500 and €2,000 or more depending on complexity), the lawyer and the court representative, the costs can exceed the benefit. There is also the risk of losing and being ordered to pay legal costs if the judge does not assess the defect as we expected or if the expert evidence is weak. That is why a cost-benefit analysis with a professional is essential before taking the step.
From an administrative perspective
The court route is slow. Proceedings can last between one and three years, or longer if there are appeals. They require time, paperwork, providing documentation and availability for expert inspections and hearings. If the defect is debatable, if we cannot prove that it existed or that it is a construction defect, or if the legal deadline has already expired, the claim has little chance of success and can be a pointless drain.
From an emotional perspective
A lawsuit wears you down. Uncertainty about the outcome, the wait and, at times, the confrontation with the developer can cause anxiety, especially if we face the process without advice. For some people, the stress of a long dispute is not worth it for a minor defect they can live with. There is no universal answer here; the claimant must carefully weigh up their own tolerance for conflict.
The expert report: the evidence that decides the case
This is an undeniable truth: without a good expert report, most claims for latent defects or construction defects are doomed to fail.
In proceedings over construction defects, the key is not that we “know” the house has a problem, but being able to prove it technically before a judge. And the judge is not an architect; they need an independent expert to translate the defect into technically and legally useful terms. That is exactly what the expert report does, and what our expert architects at DPcon do.
They mainly establish four things:
- That the defect exists and what it consists of, with technical and photographic documentation.
- What its origin is: whether it is due to the construction (poor workmanship, unsuitable materials, a design defect) or to another cause, such as misuse or normal wear and tear.
- Its seriousness and legal classification: whether it is a defect in finishes, a habitability defect or a structural defect, which determines the applicable guarantee period.
- The cost of repair, valued and justified, which will set the amount of the claim.
A solid expert report has a twofold effect. Before trial, it pushes the developer towards a settlement, because it shows them in advance that they would lose in court. And at trial, when the expert confirms and defends their report against questioning by the other side, that is usually the moment that tips the balance. That is why it should be entrusted to a professional with experience in building pathology and court work, not just anyone. It is the best investment we can make in a claim.
Deadlines for making a claim
The most expensive mistake is waiting too long. Commit the following to memory:
- Second-hand home (latent defects, article 1490 of the Civil Code): 6 months from handover.
- New build (LOE): guarantees of 1, 3 and 10 years depending on the type of defect, and 2 years to bring the action from when the damage appears.
As soon as we detect a defect, we need to act. We must document it, commission the expert inspection and claim by burofax. Every week that goes by works against the claimant, and an expired right cannot be recovered. If in doubt about which deadline applies to your case, consult a specialist lawyer as soon as possible. At DPCon we will tell you precisely as soon as we have analysed your case.
Frequently asked questions on whether it is worth taking action over latent defects
As a summary of everything above, here are the questions we are most often asked at our firm about reports and claims for latent defects or construction defects:
☑️ Is reporting latent defects the same as suing over them?
No. “Reporting” belongs to criminal law; what you do when a home has defects is make a claim and, if no agreement is reached, file a civil lawsuit. The terms are used interchangeably in everyday speech, but the correct procedure is the civil one.
☑️ Who do I claim against if my new home has defects?
Depending on the defect, we can bring a claim against the developer, the building contractor, the architect, the technical architect and, for structural damage, the insurer providing the 10-year structural insurance. Identifying the right liable party is part of the work of the expert report and the lawyer.
☑️ How much does it cost to claim for latent defects?
The main costs are the expert report (usually between €500 and €2,000, depending on complexity) and the fees of the lawyer and court representative. If the claim succeeds, the other party is often ordered to pay the legal costs, which can offset a large part of the outlay.
☑️ How long do latent defect proceedings take?
It depends on the court and on whether an agreement is reached. An out-of-court solution can be resolved in weeks or a few months; court proceedings usually last between one and three years, and longer if there are appeals.
☑️ Can I claim if several years have already passed?
For new builds, yes, provided we are within the LOE guarantees (up to 10 years for structural defects) and no more than 2 years have passed since the damage appeared. For second-hand homes, the latent defects period is just 6 months from handover. Check your case before ruling it out.
☑️ Is it worth it if the defect is small?
If the cost of repair is low, a lawsuit may not be worthwhile in terms of time, money and strain. Even so, it is advisable to send a written claim to the developer to keep a record, in case the problem gets worse.
☑️ Do I definitely need an expert report?
In practice, yes. It is the evidence that proves the defect, its construction origin and its cost. Without a solid expert inspection, it is very difficult to win and the risk of being ordered to pay legal costs is high.
Conclusions
So, is it worth reporting latent defects or construction defects? Reporting, or rather claiming, for latent defects is worth it when the defect is serious and provable, the cost justifies it and we are within the deadline. In those cases, not claiming means paying out of our own pocket for a problem that by law is the responsibility of the contractor or developer. When the defect is minor or debatable, or the deadline has expired, it should be weighed up sensibly, because a lawsuit also costs time, money and energy.
The difference between a claim that succeeds and one that fails almost always comes down to two factors: acting in time and having a good expert report backed by a lawyer specialising in construction defects.
If you have questions about your particular case, the most cost-effective option is an initial professional assessment. Our lawyers and construction experts will tell you, with facts and figures, whether the claim has a real chance before you spend a single euro more than necessary. We are at your disposal.
Any questions?