Our Legal Department is experienced in processing claims for building defects and claims by contractors that require payment of amounts unpaid because the developer or the authorities are alleging building defects. We specialise in these types of disputes and litigation and draft transactional agreements to avoid conflicts of this kind.
Construction faults and “functional ruin”:
There are numerous types of building faults, which range from minor to extremely serious. At the latter end of the scale, a “functional ruin” is deemed to exist when the defects are such that the building is not fit for purpose. These include building defects that are more serious than one might commonly expect to find. Consequently, they are considered a breach of contract or make the property uninhabitable because they cannot be used for the intended purpose.
According to the case law, building defects that make a house unfit include damp basements, walls and ceilings, or leaks in storerooms and garages.
Liability for building defects:
Article 1591 of the Civil Code imposes a quasi-objective liability by imposing responsibility on the parties that have been involved in the building process. This liability is assigned to parties who have been involved in a causal relationship in the production of functional ruin because their specific roles cannot be determined.
According to case law, “solidarity” is used as a last resort when it is impossible to determine the specific responsibilities of participants in the construction process. Liability is therefore apportioned to the parties responsible for the uninhabitable condition of the construction.
For example, these faults can cause cracks and damage to external elements, the opening of joints in floors, loose attachments, rust, leaks, damp marks appearing in rooms and on the façade, among other locations, faults in vertical spaces, defective waterproofing and so on.
The Supreme Court has frequently held that the senior architect is merely responsible for overall supervision and oversight of the work in collaboration with the direct, hands-on control of the quantity surveyor. When “ruinogenic” faults affect elements of the building that have a significant impact on the safety, habitability, and functionality of the building, such as enclosures, walls, façades, and waterproofing system, and these are obvious and serious, the mere existence of such defects indicates a breach of contract, both in the physical building work and in its technical management. The duty extends to the oversight and supervision of the senior architect, since, if this professional has assumed the task and charged the corresponding fees, he must oversee and inspect the property, particularly concerning these important aspects of the construction, so that the work is carried out following the project and the rules of good building practices. According to article 1.591 of the Civil Code, when it is impossible to discern or specify the harmful consequences of each fault causing the “ruinogenic” defects, everyone involved in the work is jointly liable. However, this does not rule out further claims that may be brought against the parties found responsible. It is unreasonable to expect the injured party to investigate and prove the cause of each type of damage in work carried out by different professionals, particularly technical professionals, who charge fees for this work.
Our Legal Department will assist you with claims against you or which you intend to make related to construction defects, whether you are a building agent or are affected by building defects.