Who do I claim against for defects in my new-build home: the developer, the builder or the architect?

Question

José Manuel Alburquerque · Accepted Answer

Against everyone who may be liable and their insurers. Each is liable for what it was their job to do on the works. If it cannot be established who caused the defect, or if several of them caused it and each one's share cannot be separated, they are all liable for the whole. The developer is always liable to the buyers together with the others. It is also liable as seller of the home. What each one is liable for The builder, for the execution of the works, its staff, its subcontractors and the materials. It is liable for finishing defects for one year from the handover of the works, together with the developer. The architect who drew up the design, for its errors, including those in calculations or studies he or she commissioned from others. The architect who supervised the works and the building surveyor (the “aparejador”) who supervised their execution, for that supervision and for the accuracy of the final works certificate (“certificado final de obra”), the document with which they declare the works finished. Anyone who supervises works carried out to someone else's design is also liable for the defects in that design, although they may later claim against its author. The developer, always, together with the others. If the development was run by a company that manages housing cooperatives or owners' associations (a “gestora”), that company may be liable as developer. None of them is liable if they prove that the damage was due to an unforeseeable event or force majeure, to a third party or to the injured party themselves, for example through lack of maintenance. Why it is advisable to claim against all of them A written claim against one of them may not interrupt the time limit as against the others. It must be sent to each of them and to their insurer, with an invitation to negotiate, because the law requires an attempt at negotiation before suing. In the proceedings, the court can only find against those you sue. If a defendant asks for someone else to be brought into the proceedings, that is not enough for the court to find against that person. Sue everyone you want to be held liable. You can claim directly against each one's liability insurer, if they have one. If the damage is structural, you can also claim under the ten-year structural defects insurance (the “seguro decenal”), which is compulsory for residential buildings and covers that damage for ten years. If the developer has gone bankrupt or disappeared, the others remain liable. Two routes against the developer Claims against the developer can be made under the “Ley de Ordenación de la Edificación” —the Building Act— and under the contract of sale. In Catalonia, for purchases signed from 2022 onwards, it is liable for defects that already existed when it handed over the home and that appear within the following three years. You can require it to repair them, give you a price reduction or pay you compensation.