How to protect yourself against Hidden defects on a Spanish Property? Why a property survey could be useful?
The legal analysis from our local partner Juan Carlos, covering the Valencian Community
In the property buying process in Spain, it is very important to take into account the responsibilities assumed by sellers and builders. Hidden defects could come from instance from construction defects that have not been detected before the sale.
What are the rights and obligations of the sellers, the builders, as well as the buyers who acquire properties in Spain?
That is the objective of this paper: clarify the concepts and the procedures linked to visual and hidden defects.
First, let’s identify what we understand by “defects”
We understand by defects or more precisely construction defects any type of deficiency that we find in a construction and that reduces its quality. This defect must result in such a way that the owner cannot enjoy and use the property in a normal way.
Here is the definition provided by businessdictionary.com for a latent defect: Hidden defect in material and/or workmanship of an item which may cause failure or malfunction, but is not discoverable through general inspection. Also called a hidden defect.
In addition, we can identify that a construction defect can be considered as “serious” or “grave” in the event that, if the buyer had discovered it before the sale, he would have rejected the purchase, or would have at least renegotiated the price with the seller.
There are two types of defects: Visible and Hidden
Visible defects are those that are easily detectable by means of a visual inspection, either in the construction process of the building or through a visual inspection by the buyer. That is, they are easily detectable by anyone without building knowledge or preparation.
These visible defects are not the responsibility of the seller. Therefore, the seller has no responsibility for visible defects that could have been discovered in this way by the buyer, especially if they do not affect or vary the price of the property.
Hidden defects, for instance, are those that have not been possible to detect by the construction process, because they are not easily visible. In the case of new constructions, these defects have not been detected by the different professionals, such as architects, inspectors, etc. during the construction process.
Not all defects can create responsibilities
For this to be the case, the effect must meet these conditions:
- That it was not easily detectable
- That the buyer did not know about it
- That it existed before finalizing the purchase
As an example, we are going to list which are the most repeated hidden defects in the casuistry:
- Damages that affect the structure of the building. These are work defects that substantially affect the stability and structure of the building.
- Problems of leaks, waterproofing, which cause leaks in the house.
- Problems of the settlement of the building. Once a building is constructed, it can present some cracks, fissures, etc that appear due to a bad settlement of the building, and produced by a bad basement.
When considering responsibility for hidden defects, it is necessary to distinguish between newbuild houses and home for resale.
The case of newbuild homes
the guarantee and the right of the buyer to claim for hidden defects are divided into three types:
- A one year guarantee: This is the case for problems in finishing as interior pavements, exteriors, carpentry, new appliances, etc. It is one year starting from the date of the construction, or six months from the date of purchase/completion.
- A three-year guarantee: For defects produced at the property and that directly affect and degrade their habitability In this case, it is a matter of problems that affect hygiene, health, health, water tightness, healthiness, etc.
- The decennial liability as in many other countries: covering problems that affect the structure of the building such as the foundation, pillars, beams, floors, etc… These defects must be such that they must compromise the stability of the building. Interesting to know: For newly built properties, it is mandatory in Spain for promoters to have a decennial insurance.
- The decennial liability with the specific case of Self-promotion:
If you are building your own property as a “Self-promoter” or “Autopromocion” in Spanish, this insurance is not mandatory but voluntary.
A construction is in self-promotion when the final consumer of the building is the same owner of the plot and hires the builder only for the purpose of building the house. In this way, the owner of the plot assumes the position of “promoter” of the works, and he is the one that performs the hiring of different professionals such as architects, builders, etc. If the owner decides to sell the property during the guarantee period of 10 years, he must inform the eventual buyers that the house does not have such insurance, and the buyers must expressly accept this situation.
The case of home resales
Do sellers have any responsibility for hidden defects? The answer is affirmative. Sellers who sell resale homes are also responsible for hidden defects that these properties may have. This responsibility is about the hidden defects that exist in the property and that, during six months, the seller will be responsible for any type of the defects mentioned above, and that could be detected before within six months.
The buyer may exercise his right to claim responsibility for hidden defects if those three conditions are met: 1. The defect must be detected. 2. The seller must be notified in writing: usually by certified mail, making him aware of the defects, explaining what the causes may be, and what could be the solution to repair the problem. 3. In the event that the seller does not recognise his responsibility, the buyer must obtain a written report from an independent professional, if possible an expert, who determines the problem, the defect, and which are the repair costs in an official report. If the seller, received the report and does not take charge of the issue, then the buyer must be advised by a lawyer in order to see what are the legal ways that exist to solve the problem.
Usually, tribunal claims derived from hidden defects of small consideration are expensive and long. Therefore, always advisable to try to reach an out-of-court settlement with the seller.
For serious cases, in which there is a real problem that affects the habitability, or the structure of the building, it will be necessary to defend the position of the buyer in the best possible way, always considering the possibility of going to Courts if not finding an agreement with the seller.
Read the paper Juan Carlos wrote on a related subject: What should you pay attention to when buying a property in Spain?
Check our three infographics with useful tips if you are considering buying a property in Spain: Our top 10 pieces of advice for buying your property in Spain The 8 legal steps to your Spanish Property Top 8 tips for not wasting money when you buy in Spain
This article is written by one of our independent partners in Spain, Juan Carlos, who is one of our Lawyer in the region of Alicante. Check his profile.