If the developer has gone bankrupt or disappeared, who do I claim against for the defects?

Question

José Manuel Alburquerque · Accepted Answer

Against the builder, the architect, the building surveyor (the “aparejador”) and their insurers, who remain liable even if the developer has disappeared. If the damage is structural, also claim directly against the insurer providing the ten-year structural defects insurance (the “seguro decenal”), which protects the owners. If the developer is in insolvency proceedings, what used to be called “quiebra” (bankruptcy), you must lodge your claim with the insolvency practitioner, although little is usually recovered there. And if the company has been wound up and struck off the register, in principle it can still be sued over outstanding claims. The other liable parties and their insurance The builder and the building professionals are each liable for what they did. If it cannot be established who caused the defect, they are all liable for the whole. The builder is liable for finishing defects in the first year. If the home was developed by a housing cooperative or an owners' association through a management company (a “gestora”), the management company may be liable as if it were the developer. The ten-year structural defects insurance covers structural damage for ten years. The insured are the owners, including those who buy later, so the developer's disappearance does not prevent them from claiming. Its details are stated in the deed of declaration of new construction (“declaración de obra nueva”), of which you can request a copy from the notary's office or information from the “Registro de la Propiedad”, the Land Registry. They are also usually recorded in the building's record book (the “Libro del Edificio”). Damp, insulation, installations and finishes are not covered by the ten-year insurance. Claims for them are made against the builder, the building professionals and their liability insurers. If the developer had liability insurance, you can claim directly against that insurer. If the developer is in insolvency proceedings You must lodge your claim with the insolvency practitioner, the professional appointed by the court to run the insolvency proceedings, normally within one month of the publication of the insolvency order in the “BOE”, Spain's Official State Gazette. While the insolvency proceedings last, any claim against the developer is brought before the insolvency judge. Little is usually recovered in the insolvency proceedings, because these claims have no priority. Against the developer in insolvency proceedings, the prior attempt at negotiation that the law has required since 2025 before suing is in principle not needed, because insolvency matters are excluded from that requirement. Against the other liable parties and their insurers, it is. If the company has disappeared Even if it has been wound up and its registration cancelled at the “Registro Mercantil”, the Commercial Registry, in principle it can still be sued over outstanding claims. Sometimes its directors or liquidators may also be liable. If what happened is that the developer went bankrupt before finishing the building and you had paid sums on account, that is a different problem. Those sums are covered by the bank guarantee or insurance that the law requires the developer to arrange and are claimed from the bank or insurer that provided it. Do so as soon as possible, because claims under the guarantee become time-barred if two years pass from the developer's breach without your having demanded that it cancel the contract and refund what you paid. If that guarantee was not provided, the bank into which the payments were made may be liable.