One of the most common arguments used by some building contractors to evade their technical and legal liability is to attribute the damage to a supposed “lack of maintenance by the homeowners’ association”. However, this reasoning is not only technically incorrect but also legally untenable in the context of newly handed-over new-build properties.
What maintenance obligations does the homeowners’ association have?
Article 10.1.a) of the Horizontal Property Act (LPH) places the obligation to maintain and preserve the building and its communal areas on the homeowners’ association.
It is true that the homeowners’ association is obliged to carry out the works needed for the proper upkeep and preservation of the property and its services, so that it meets structural, watertightness, habitability, accessibility and safety requirements. But “lack of maintenance” must be understood as the failure to take reasonable actions that ensure the building is preserved in normal conditions of use, such as repairing small leaks in communal areas or replacing parts worn through ordinary use.
But can the homeowners’ association be liable for “lack of maintenance”?
Only when it is shown that the homeowners’ association has genuinely and continuously failed to meet its preservation obligations, and that this failure has caused specific damage to the installations or communal areas.
However, in the context of a newly handed-over new-build building, the homeowners’ association has had practically no time to carry out ordinary maintenance work (for example, cleaning downpipes, inspecting expansion joints, checking waterproofing, etc.). This means that attributing the cause of a defect to “lack of maintenance” is, unless proven otherwise, pure speculation.
Maintenance vs. construction defects
“Lack of maintenance” can only be alleged when there is clear negligence by the homeowners’ association in preserving the building that leads to real damage or risk. Construction defects, however, originate in:
-design or calculation errors,
-defective workmanship,
-unsuitable materials,
-failure to comply with technical regulations or the construction project.
These defects cannot be prevented or corrected by ordinary maintenance work. For example:
-Poorly sealed façade joints are not fixed by cleaning or minor repairs; they require a specific technical solution.
-Deficient roof waterproofing is not remedied by routine work; it requires technical intervention that reverses the original defect.
In short, confusing maintenance with the repair of construction defects means wrongly shifting liability from the building contractor (which is subject to statutory guarantee periods) to the homeowners’ association, which is not legally sustainable.
Finally, a common excuse used by developers is to shift liability onto the homeowners’ association by claiming that they provided it with the Building Logbook containing the necessary instructions for the use and maintenance of each element. But it is clear that these basic use and maintenance instructions do not replace the liability of the parties involved in the construction; rather, they guide the homeowners’ association on how to maintain the building under normal conditions of use, without taking on responsibilities that, by law, belong to other parties involved in the construction.
“Lack of maintenance” is not a valid reason for rejecting claims for damage in new-build buildings. Legislation and case law draw a clear distinction between the homeowners’ association’s ordinary maintenance obligations and liability for construction defects, which lies with the parties involved in the construction within the statutory guarantee periods.
Attributing damage that appears in the first years of a building’s life to a supposed lack of maintenance not only lacks any technical basis, but may also be a legally weak strategy for evading the developer’s own liability.
If your new-build residential development has claimed for construction defects from the developer-seller and it has rejected them on the grounds of a supposed lack of maintenance, contact us.
Any questions?