[Anonymous]

Is it normal for buyers to withold payment unitl building defects are corrected?

[Anonymous]

Defects or snags?
Construction faults or defects are covered by the building works guarantee under the Spanish Building Act Article 19.
However this guarantee can be replaced by the developer (you if this is your role) withholding 5% of the contractual price of the works.
If you’re about to enter into a purchase or development contract then you can insist on a retention clause. If you’ve already got a contract and there is no provision for a retention then you cannot add such a clause retrospectively.
If you are referring to “snags” rather than building defects then you simply don’t complete until the snags have been rectified to your satisfaction.

[Anonymous]

DGR & Mrs C,

LOE (Ley de Ordenación de la Edificación) or Spanish general building law warranties are to be taken with care…

I’ve described them briefly in other posts:

1 year for minor defects (finishing details) only against the builder
3 year for general defects, and
10 years for mayor defects (only those affecting the building structure or stability)

This is the legal liability every professional has in the building process (only the builder in minor defects) but, as I also said in an other post, many times you will be forced to go to court to have your rights granted.

The Law also states that those warranties have to be enforced by an insurance policy but today this is something only compulsory in the third case (defects affecting the structure and stability of the building) as the way the other two cases are to be insured is something our government has yet to develop with a new law. So it’s good if you have the 5% retention clause in your contract.

I can tell you that this 5% clause is usual in contracts between promoter/developer and builder… But in your case it’s not clear to me if you are promoting your own house or simply buying it from a promoter

Things can vary a lot depending on your particular case… Are you buying an unfinished property?? are you promoting one?? It’s officially finished (with a Certificado Final de Obra) but there are defects?? or are you buying a re-sale?? and in that last case, how old is the property???

Cesar

[Anonymous]

Cesar,

Thanks for your advice, I bought the property off plan and it’s due for completion early 2007. At the time of purchase I did not consider building defects (a mistake on my part I realise now). It would be unfair for me to claim I was misled by the estate agent or developer in this case in terms of the 10 year warrenty. It is more a case of me naively accepteing the 10 year warrenty.
However I’m a little worried that if I have my townhouse surveyed and defects are brought to my attention I’m obliged to complete regardless. The messy job of having defects repaired and possibly going to court to have this done is left to me.
Do you or anybody else have any advise?

[Anonymous]

DGR,

If your completion is due next year you have to wait till then (unless you can be sure something is already been bad done, in that case you can start looking for a lawyer)

The Architects and Aparejadores are responsible of a non-defective construction as they have to sign the ‘Certificado Final de Obra’ certifying everything was built in accordance with the project and license and has no apparent defects…

From then, but not before, you have the right to demand and get a full repair.

I can tell you that here, in Asturias, Architects receive an average of 200 claims per year related to building defects (this is the figure I know as an architect lawyer. There are many others directed only against builders I can have no notice of) about a 70 to 80% are settled out of court in an acceptable/satisfactory way for everyone. The rest go to court with an average delay of 8 to 10 months for a final sentence.

The vast majority of times proprietors get the proven defects repaired or economically compensated.

But, and this is extremely important, do not let a bukaroo or kamikaze lawyer to inflate or exaggerate your claim (unfortunately there are some ‘professionals’ very kind on this practice) you will risk a partial sentence and you wont get your legal expenses refunded.

Cesar

[Anonymous]

Cesar,

Thanks for your help, there are no building defects that I’m aware of at the moment. So far I have been our developer / builder have been 100% straight with us and I have no complaints. Given our experiance so far I would imagine any potential problems will be fairly resolved.
I will keep a record of your response and refer to it if I need it.

But to be clear, if building faults, snags come to my attention do I complete or not?

Regards

Derek Robertson

[Anonymous]

@DGR wrote:

But to be clear, if building faults, snags come to my attention do I complete or not?

That’s the million dollar question…

If they are minor defects you can complete and demand those to be repaired… If you detect snags you can complete and demand compensation… but it always depends on the magnitude of what’s missing or defective… it is essential to you? or you can accept it if a compensation is given?

[Anonymous]

I completed on my villa last June and was stupid enough to hand over the final payment before all the snags had been carried out. As soon as the builder/developer/estate agent had received the money they did not want to know me anymore. I eventually did a lot of the snags myself but also had to pay a builder 600 euros to fit a toilet and install a gas boiler. I am now trying to claim it back from the estate agent but I am not going to hold my breath. Do not pay everything until you are completed satisfied.

[Anonymous]

A missing WC and gas boiler are more than “snags” IMHO. Lack of a gas boiler to heat water affects the habitability requirements of a dwelling and your final certificate shouldn’t have been issued without this facility. Ditto a WC.

[Anonymous]

The completion on my villa was already 9 months overdue because of a conflict between the builder and the estate agent and I already had 2 wasted journeys from UK so all I wanted to do was sign but with hindsight I should have held on until every snag was complete.

[Author]

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