Who is liable for construction defects
Contents: Who is liable for construction defects.
Guarantee periods for construction defects:
Individual and joint and several liability for construction defects.
The building contractor’s liability for construction defects.
The site management team’s liability for construction defects.
Under the Spanish Building Act (Ley de Ordenación de la Edificación, LOE), the parties involved in the construction bear different liabilities for causing material damage (construction defects), and they may be liable in different ways. Let us take a look:
Guarantee periods for construction defects:
A) Ten years for material damage caused to the building by defects affecting the foundations, beams, floor slabs, load-bearing walls or other structural elements, and which directly compromise the mechanical strength and stability of the building.
Although the foundations of a building are underground and we cannot see them, nor can we examine the calculations the architect made at the time to determine the depth of the floor slabs, girders, ring beams or footings, etc., we can see the consequences of poor work: differential settlement, hairline cracks, cracks and deflection of a floor slab, and the shape and location of those hairline cracks or cracks will often tell us what is happening in the building. The designing architects and the developers are usually liable for this damage.
B) Three years for material damage caused to the building by defects that result in failure to meet the habitability requirements. The quantity surveyor, the building contractor and the developer are usually liable for this damage.
C) One year: the building contractor will also be liable for material damage caused by workmanship defects affecting finishing elements of the works within a period of one year.
Individual and joint and several liability for construction defects.
Civil liability is enforceable on a personal and individual basis, but where the cause of the material damage cannot be attributed individually and the degree to which each party contributed to the damage cannot be determined, liability will be joint and several. In any event, the developer will be jointly and severally liable with the other parties involved to potential purchasers for material damage to the building caused by construction defects.
The developer’s liability extends to the individuals or legal entities that, under the contract or through their decision-making role in the development, act as developers, whether as a developer or as a “housing cooperative manager”.
Where the design has been commissioned jointly from more than one designer, they will be jointly and severally liable.
Designers who subcontracted calculations, studies, opinions or reports from other professionals will be directly liable for any damage arising from their inadequacy, errors or inaccuracy, without prejudice to the right of recourse (the architects suing the professional who made the faulty calculation) that they may exercise against the authors.
The building contractor’s liability for construction defects.
The building contractor will be liable for failure to fulfil the obligations assigned to the site supervisor and other individuals or legal entities that depend on it.
The building contractor must answer for damage caused by poor workmanship. Where the contractor subcontracts part of the works to another party, it will be directly liable for material damage caused by defects in that party’s workmanship, without prejudice to the right of recourse.
The contractor will be directly liable for material damage caused to the building by deficiencies in the construction products purchased or accepted by it, without prejudice to the right of recourse.
The site management team’s liability for construction defects.
Finally, the works director and the site manager who sign the certificate of completion (CFO) will be responsible for the truthfulness and accuracy of that document.
The architect will be liable, in their role as designer, for design defects and, as works director, for failing to exercise overall supervision to ensure that what was built matched the design. The quantity surveyor or technical architect will be liable, as site manager, for direct supervision on site to ensure that everything is built correctly in accordance with the design, the regulations and good professional practice (lex artis). They are also responsible for properly accepting materials and checking they are suitable.
And anyone who agrees to direct works whose design they did not draw up themselves will assume the liability arising from omissions, deficiencies or imperfections in the design, without prejudice to the right of recourse.
Where the direction of the works is contracted to more than one professional, they will be jointly and severally liable, without prejudice to the apportionment between them.
Liability for damage cannot be enforced against the parties to the building process if it is proven that the damage was caused by accident, force majeure, the act of a third party or the injured party themselves.
The seller’s liability for building defects in all cases.
The liabilities referred to in this article are without prejudice to those of the seller of the buildings or built units towards the buyer under the sale contract signed between them, for five years, through their private sale contracts or the deeds. The parties to the building process will be liable to the owners and subsequent purchasers of the buildings or parts of them for material damage caused to the building within the stated periods, counted from the date of handover of the works without reservations, or from when those reservations are remedied.
The developer, as a professional property developer and as seller bound by its contractual obligations, is ultimately responsible for ensuring that the property is handed over in perfect condition, just as the price paid by the purchaser is not handed over clipped or damaged.
DPcon Reclamación Daños Constructivos.
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