If I sold a flat and the buyer is claiming against me for latent defects, what can I do?

Question

José Manuel Alburquerque · Accepted Answer

You can defend yourself if the claim comes too late, if the defect did not exist when you handed over the flat or if the buyer knew about it or could see it. If the flat is in Catalonia and you sold it on or after 1 January 2022, you are liable for defects that already existed at handover and appear within the following three years. The buyer has three years to claim from becoming aware of the defects and, if the defects appeared within the first two years, they are presumed to have already existed and it is up to you to prove that they did not. If you concealed the defect, you will not be able to argue that the buyer could see it or rely on the clause selling the flat in its current condition. Reply in writing and with the support of a technical expert, because the buyer has to try to reach an agreement before suing you. Your defences The time limit. In Catalonia, the claim comes too late if the defect appeared more than three years after the handover or if the buyer let three years pass from when they became aware of it or could have become aware of it. If you sold before 2022, the time limits may be different. Outside Catalonia, the Spanish Civil Code (“Código Civil”) gives six months from the handover to claim for latent defects. But if the defect is so serious that the flat is unfit to live in, the buyer may have another claim, for breach of contract, with a five-year time limit. A known or visible defect. You are not liable for what the buyer knew or could not reasonably have been unaware of when buying, for example because it could be seen during the viewing, was recorded in the building's technical inspection report (“inspección técnica del edificio”) or in the owners' association minutes that you showed them before signing, or you told them about it. This defence does not work if you concealed it, acted with gross negligence or expressly assured them that it did not exist. Nor does it work if what could be seen was only the sign of a bigger hidden problem. A defect arising after the handover. If it appeared within the following two years, the law presumes that it already existed and it is you who must prove that it did not, for example because it was caused by building work or misuse by the buyer. Once those two years have passed, the burden of proof is on the buyer. If you sold as a business to a private individual, that period is one year. A minor defect. If it is minor, the buyer cannot undo the sale. They can ask for it to be repaired or for a price reduction. The exclusion clause. If the contract said that the buyer waived any claim for hidden defects, that waiver is usually valid between private individuals if you did not know about the defect. A clause that merely says that the flat was sold in its current condition offers less protection, because it may be read as referring to what could be seen. Late notice. If the buyer was slow to notify you and the damage got worse as a result, the buyer bears that increase. This defence does not work if you knew about the defect. What to do Do not leave the claim unanswered. Reply in writing and ask for details of the defect and to be shown the report on which the claim is based. Ask to see the flat with an architect or a building surveyor (the “aparejador”) you trust before it is repaired, so that they can say whether the defect already existed when you sold it and how much it costs to repair. Gather the contract, the advert, your messages with the buyer, the building's technical inspection report, the owners' association minutes, the invoices for the repairs you carried out and photos of the flat at handover. If the building is recent, the buyer can also claim against the developer, the builder and the building professionals, within the time limits of the “Ley de Ordenación de la Edificación”, the Building Act. That does not release you, since you are liable under the sale. Check whether you have a policy with legal expenses cover that applies to this claim. If the defect is genuine, offering to repair it or a proportionate price reduction may cost you less than a lawsuit. In Catalonia, if you repair it properly and within a reasonable time, the buyer will in principle no longer be able to ask for a price reduction or undo the sale, unless the defect is serious.