One of the most disagreeable parts of my work has to do with having to prepare technical reports on construction deficiencies and this is not only due to the fact that normally it implies poking my nose into somebody’s work, but also the grand effort that I have to make in attempting to be as impartial and objective as possible keeping into perspective the interests of my client and that of other parties, and this is not because I am a good hearted person (that I am) but more to the fact that this sort of building pathologies tend to end up in court and judges, who are dealing every single day with similar cases tend to pass sentences taken into account the actual problem and its real quantification and have a propensity to act negatively when it is clear and apparent that one of the parties is intending to take advantage of circumstances.
They want their pound of flesh.
It is not unusual that I am called upon after many attempts have been made to come to some sort of compromise between the parts involved in the conflicts and everyone is fed up, (to put it politely) about everyone else.
In some cases I have found that both parts are behaving rather as a divorced coupled who not only wants to be compensated for a loss but they want their pound of flesh.
Having said this it is also true that in the majority of cases there has been a real damage and it has been caused by a negligent act or by a proper omission of professional care and attention and also specially the Brits, have patiently and politely tried amicably to obtain a solution to significant construction irregularities.
To find out if there the deficiencies found are due to failure due to defects found on the original project or are due to negligence acts from those agents involved during the construction process,
it is advisable to first obtain an expert report from an architect or assistant architect. This professional, will identify the issues, by concentrating on the technical aspects leaving emotion and sentiments out of it.
Is it your own, or is it a Community issue?
If it is opted for this process, there is a difference in the procedure if the dwelling in question is an individual home or forms part of a building block. In the latter it is necessary to differentiate between damages caused to internal finishes of the property or whether involve deteriorations to communal parts of the building such as the structure or communal services as main sewerage pipes, gas, TV installation etc i.e. any installation that the Community is responsible for.
Being that the case it is required that a request in writing is made to the President of the Community, that this issue be included in the agenda of the next meeting of the community (or if the damage could be interpreted that may put lives at risk to convene a meeting specifically for this issue). At the meeting, the proposal should be to engage a professional to prepare a technical report on the defects detected, to specify its entity, causes, foreseeable developments, and very important to quantify the damage. Since the CTE came into effect (see below) there are many complains on level of noise that may infiltrate from the road traffic, basements, pumps and more often than not from next door neighbor etc. to determine if they are excessive under current regulations.
It is important to follow the standard procedures.
From the data of the survey, the President of the Community, acting on behalf of, may approach the person or persons responsible for the claim and ask to repair the defects. Sometimes this action could also be done by one of the joint owners on his own behalf and for the benefit of the community but this is not usual.
I strongly advise that it should be a lawyer the professional that takes the case on from this moment on and I also recommend that the solicitor be one with some experience on these matters as normally there will be some type of negotiations between the parts and if turn out to be fruitless, eventually it will end up before the civil courts. If that is the case, it need to be taken into account when the building was built as the law changed in 2000 with the LOE (Ley de Ordenación de la Edificación) 38/1999 Law of the 5 de November which came into effect on 6th of November year 2000 and more recently the CTE (Código Técnico de la Edificación) of 2006 which came into force on 2007.
Any dwellings which building license was submitted to the town hall on that year i.e. 2007 will be dealt under the new building law.
If the dwellings were built before then, it will be required to resort to previous regulations, in particular, to the article 1591 of the Spanish Civil Code, which deals with the ten year guarantee and liability of all the construction professional for any building defects.
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