Parties Involved in Construction under the LOE

What obligations and what liability does each party involved in the construction have under the LOE?

The developer. The developer is the person or entity that decides on, drives, schedules and finances the works, either for themselves or for subsequent sale.

What are the developer’s obligations?

To hold title to the plot. To provide the documentation or preliminary information needed to draw up the project.

To apply for and obtain the licences or authorisations. To take out the insurance required by law (article 19), and to hand over to the purchaser the as-built documentation.

Liability of the developer under the LOE:

The developer is jointly and severally liable to purchasers for material damage caused by building defects or construction defects.

The developer’s liability extends to individuals or legal entities acting as developers in the capacity of managers of cooperatives or associations, or in similar roles.

The designer The designer is the professional (an architect) who draws up the project on the developer’s instructions. Other partial projects may be prepared in a coordinated manner, but each designer is responsible for their own project.

Obligations of the designer: To be an architect. If the designer is a legal entity (a company or a joint ownership), the professional drafting the project must be named. For a permanent public or private building, the designer must always be an architect.

For alteration or refurbishment works that change the architectural configuration of a building, the designer may be an architect, a technical architect or an engineer, according to their field. The designer must agree with the developer on hiring any specialist collaborators.

Where the project has been commissioned jointly from more than one designer, they will be jointly and severally liable.

Designers who commission calculations, studies or reports will be directly liable for any damage arising from their inadequacy or inaccuracy, without prejudice to the right of recourse (claiming against their authors).

The building contractor The contractor is the party that takes on the contractual commitment to carry out all or part of the works in accordance with the project. Obligations:

To carry out the works in accordance with the project and the instructions of the works director and the site manager. To hold the professional qualification of building contractor.

To appoint the Site Supervisor (Jefe de Obra), who will represent the contractor and must be suitably qualified. To assign the necessary staff to the works. To formalise subcontracts.

To sign the setting-out or commencement record and the handover certificate of the works.

To provide the works director with the data needed to prepare the as-built documentation.

To provide the guarantees required by law (article 19).

Liability of the contractor: The contractor will be liable for the site supervisor’s negligence, lack of competence or technical skill, and for the persons under the site supervisor’s control.

If the contractor subcontracts to third parties for part of the works, the contractor will be liable for defects in execution, without prejudice to the right of recourse.

The contractor will be liable for damage caused by deficiencies in products purchased or accepted by the contractor, without prejudice to the right of recourse.

The works director – The works director is part of the site management team and directs the works in their technical, aesthetic, planning and environmental aspects in accordance with the project.

Coordinates the partial projects of the works. Must hold a degree as an architect, technical architect or engineer, as appropriate.

Checks the setting-out, the foundations and the structure, in line with the geotechnical characteristics of the ground.

Resolves contingencies arising during the works and records in the site inspection book the precise instructions for interpreting the project.

At the developer’s request, prepares the changes to the project required by the progress of the works.

Signs the setting-out record, the certificate of completion (CFO) and the interim certifications.

Prepares the as-built documentation to hand over to the developer.

Performs the functions set out in article 13 if the works director and the site manager are the same person.

The works director and the site manager will be liable for the truthfulness and accuracy of the CFO (certificate of completion). Anyone who accepts the direction of works whose project they did not draw up will assume liability for any omissions, deficiencies and imperfections, without prejudice to the right of recourse.

Where the direction of the works is contracted jointly to more than one professional, all of them will be jointly and severally liable, without prejudice to the apportionment that applies between them.

Site manager (article 13)

1.-Directs the physical execution of the works and controls the construction and the quality of what is built, both quantitatively and qualitatively.

2.-If the works involve the construction of buildings, the required qualification is that of technical architect (Aparejador).

3.-Must check the acceptance of products, ordering tests and trials to be carried out.

4.-Directs the physical execution of the works, checking the setting-out and the correct execution and arrangement of building elements and installations in accordance with the project and the instructions of the works director.

5.-Records the precise instructions in the site order and inspection book.

6.-Signs the setting-out record, the CFO, the interim certifications and the final settlement of work units.

7.-Works with the other parties to prepare the documentation of the works, providing the results of the checks carried out.

Building quality control bodies and laboratories (article 14).

1. Quality control bodies are entities qualified to provide technical assistance in verifying the quality of the project, the materials and the execution of the works.
2. Testing laboratories are those qualified to provide technical assistance, tests and service trials of materials, systems and installations of a building project.
3. Both provide technical assistance and deliver the results of their work to the site manager.

They must also demonstrate that they have the material and human resources needed to carry out the contracted work properly, through accreditation by the Autonomous Community.

Product suppliers (article 15)

• These are the manufacturers, wholesalers, importers or sellers of construction products.
• A construction product is anything manufactured to be permanently incorporated into the works, including semi-finished elements.
• What are the supplier’s obligations?:
• To make deliveries in line with the order specifications, stating their origin, identity and quality, and complying with the applicable regulations.
• To provide the instructions for use and maintenance and the quality guarantees for inclusion in the as-built documentation.

Owners and users.

Owners are obliged to keep the building in good condition through proper use and maintenance, and to receive, keep and pass on the as-built documentation, insurance policies and guarantees. Users, for their part, are obliged to use the building properly in accordance with the instructions for use and maintenance contained in the as-built documentation.