Depending on the origin of the structural damage, there will be different time limits for claiming and different liable parties.
If our home suffers from a structural problem, that is, damage involving or affecting the foundations, floor slabs, beams or load-bearing walls, ground subsidence, major cracks, differential settlement, etc., the first thing to do is to commission an expert report to determine the origin of the damage, assess it and take the appropriate measures; it will also serve as an essential basis for claiming against those responsible within the time limit. This is because, depending on the origin of the damage, different time limits and different liable parties may apply. We explain them below:
- If it is a new-build home, covered by the guarantees of the Spanish Building Act (Ley de Ordenación de la Edificación, LOE), the guarantee period for claiming against those responsible will be 10 years under article 17.1.a) of the LOE, and once the damage has become apparent (and there is a record of that date) you have 2 years to bring the action, under article 18 of the LOE. The liable parties will most probably be the designing architect and/or works director, and the developer.
- If the problem that caused the differential settlement is due to a burst municipal water main, producing an uncontrolled discharge of water that causes what is known as “washing out of fines”, changing the morphology of the ground on which the home stood, then the liable party will be the public authority, for the malfunctioning of its public service, and it must answer under article 106.2 of the Spanish Constitution. The time limit will be one year, and the claim should be brought through the administrative channel and then before the contentious-administrative courts. But since the water supply is very likely operated under an administrative concession, that is, by a company such as FCC AQUALIA, ACCIONA AGUA, AIGÜES DE BARCELONA, etc., these companies have their insurers behind them (against which a direct action can be brought), so the claim could be pursued through ordinary civil liability proceedings, with the same 1-year time limit, but in the civil courts (which will always be quicker than the administrative route).
- If the structural damage has been caused by a neighbour’s works, an adjoining property or renovation work in the flat above, it would first be necessary to properly prove a causal link between the damage caused and the conduct of the party claimed against (since the burden of proving this lies with the injured party), and then take action against whoever caused the damage. The claim would have to be based on non-contractual liability under article 1902 of the Civil Code, within 1 year.
- Finally, if it is not a new-build home but an old, second-hand property, and on handover the buyer notices that there is structural damage, depending on the seriousness of the damage and on whether it can be considered latent defects, the buyer should bring an action for price reduction (quanti minoris) under article 1484 of the Civil Code within 6 months (article 1490), or a claim for breach of contract under article 1101 of the same Code, with a time limit of 5 years under the new wording of article 1964.2 of the Civil Code.
As we say, to be sure of who is liable for the damage and of the time limits for claiming, it is important, first, to commission an expert report from a reliable expert to assess and determine the origin of the damage beyond doubt and, second, to be properly advised by specialist lawyers. We are at your disposal. DPcon Reclamación daños Constructivos.
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