If I buy a second-hand flat with latent defects, can I claim against the seller?

Question

José Manuel Alburquerque · Accepted Answer

Yes, if the defect already existed when the flat was handed over to you and you did not know about it and could not reasonably have noticed it when buying. If the flat is in Catalonia and you bought it on or after 1 January 2022, the seller is liable for defects that appear within three years of the handover and they are presumed to have already existed if they appear within the first two. You have three years to claim from when you become aware of the defect, but you must notify the seller as soon as you discover it. Outside Catalonia, the law that generally applies is the Spanish Civil Code (“Código Civil”), which gives only six months from the handover to claim for latent defects, although if the defect is serious there may be other routes with a longer time limit. What Catalan law says Catalan law does not speak of latent defects but of lack of conformity, meaning that the flat does not have the characteristics it was supposed to have. Latent defects, those that could not be seen when buying, are the most common case. The seller is liable if the defect already existed when the flat was handed over to you and it appears within the following three years. If it appears within the first two years, it is presumed to have already existed and it is the seller who has to prove otherwise. If you bought from a company as a private individual, the presumption period is one year. The contract may also have shortened the three years, but not to less than one. The seller is not liable for what you knew or could not reasonably have been unaware of when buying, such as damp patches that could be seen during the viewing. But the seller is liable if they concealed it, acted with gross negligence or expressly assured you that the flat did not have that problem. And if the patches were the sign of a bigger problem that could not be seen, you can claim for it. You can ask the seller to repair the defect within a reasonable time. If they do not, you can have someone else repair it at the seller's expense. If the seller does not repair it or the defect is serious, you can also ask for a price reduction or, unless the defect is minor, undo the purchase. In addition, you can claim for any damage it has caused you. How to claim Notify the seller in writing as soon as you discover the defect, describing it, by a means that leaves a record, such as a “burofax” (a certified letter with proof of content). If you delay, you do not lose your right, but you will be liable for the harm caused by the delay, for example if the damage gets worse. Commission a report from an architect or a building surveyor (the “aparejador”) explaining the defect, how long it has existed and how much it costs to repair. Do not carry out repairs before the condition of the flat has been recorded, unless it is urgent. You have three years from when you become aware of the defect or could have become aware of it. Do not count on a letter stopping that time limit and do not wait until the last moment to sue. If the contract says that the flat is sold “en el estado en que se encuentra” (in its current condition), that may not be enough to stop you claiming for what could not be seen. An express waiver of claims for hidden defects is usually valid between private individuals if the seller did not know about them, but it does not protect a seller who concealed them. Before suing, the law requires you to try to reach an agreement, for example through a written proposal or mediation. Outside Catalonia and other routes Outside Catalonia, the Spanish Civil Code gives six months from the handover to claim for latent defects that make the flat unfit for its use or reduce its usefulness so much that, had you known about them, you would not have bought it or would have paid less. A mere letter may not stop that time limit, so act straight away. If the defect is so serious that the home is unfit to live in, or the seller failed to comply with what was agreed, there may be a claim for breach of contract, with a five-year time limit. If the flat is in Catalonia but you bought it before 2022, the time limits may be different. If the building is recent, you can also claim against the developer, the builder, the building professionals and, if the damage is structural, the ten-year structural defects insurance (the “seguro decenal”), within the time limits of the “Ley de Ordenación de la Edificación”, the Building Act. That Act also protects those who buy later, even second-hand.