Can the owners' association claim for construction defects in the building?

Question

José Manuel Alburquerque · Accepted Answer

Yes. The owners' association can claim against the developer, the builder, the building professionals and their insurers for defects in the common parts, such as the façade, the roof or the basements. The “Tribunal Supremo”, Spain's Supreme Court, confirmed in judgment 860/2026 of 4 June that it can also claim for damage to the individual homes and bring the claims that the developer, a housing cooperative in that case, had against the building professionals under its contract, even though the owners' association had not signed it. To bring a claim in court, the prudent course is for the owners' general meeting to resolve to do so and to authorise the chair. Each owner can still claim separately for the damage to their own home. What the Supreme Court said In that case, the building had been developed by a housing cooperative, which engaged the architect and the building surveyor (the “aparejador”). The owners' association formed by the members of the cooperative claimed for damp and leaks in the basements and in other areas, both common and private. The claim against the building professionals under the “Ley de Ordenación de la Edificación” (LOE), the Building Act, had become time-barred, that is, it had been lost through the passage of time. Even so, the Supreme Court upheld the order against the architect for the waterproofing defects in the basements and the order against the building surveyor, together with the builder, for other leaks and damp. The order was to repair the defects or to pay what it costs to repair them. To accept that the owners' association could claim, the Supreme Court gave two reasons: The cooperative's contractual claims passed to its members when the homes were allocated and, along with them, to the owners' association. In construction, the courts take a flexible approach to the rule that a contract only has effect between those who signed it. The owners' association can claim for both the common parts and the privately owned units, because the defects affect the building as a whole and the sensible thing is to repair them all at once. How to prepare the claim The general meeting resolves to claim and authorises the chair. The matter must be on the agenda and in Catalonia a simple majority is enough. If the owners' association is also going to claim for damage to the individual homes, the resolution should say so and the affected owners should agree, to avoid disputes over who is claiming for each item of damage. Ask the managing agent for the building's record book (the “Libro del Edificio”), the documentation on the works that is handed over to the owners. It usually records who was involved, the handover certificate for the works and the ten-year structural defects insurance (the “seguro decenal”). Commission an expert's report on the whole building stating what defects there are, their cause, who caused them and how much it costs to repair them. Make a written claim against everyone who was involved and against their insurers. A claim against one of them may not interrupt the time limit as against the others. Before suing, the law requires you to attempt negotiation. The claim should be a genuine invitation to negotiate. Also check the owners' association's insurance, although it does not normally cover construction defects. The time limits Under the LOE, the guarantee periods run from the handover of the works, the act by which the builder hands over the building to the developer. The damage must appear within the following ten years if it affects the structure or within the following three if it affects habitability. The builder is liable for finishing defects for one year, together with the developer. Once the damage appears, there are two years to make a claim. The contractual claim has its own time limit. Under the Spanish Civil Code (“Código Civil”), which applied in the Supreme Court case, it is five years. In Catalonia, if the contract is governed by Catalan law, it is in principle ten.