CONSULTATION:
I have had damp problems at home for a long time the promoter promised to fix it but does nothing at all. I believe these problems have appeared within the warranty period. What should I do to claim? How can I be taken more seriously?
Dear reader,
Thank you for your inquiry,
Our advice is that you should visit a lawyer with experience in this field of law and if it is a defective construction problem (as it seems) our firm will more than pleased to assist you
However in general you should know that:
.-In first place we must determined if the problems have appeared within the warranty period specified by the Spanish Building Act (Ley de Ordenación de Edificación (LOE)that is 1 year for finishing defects, 3 years for habitation problems and 10 years for structural defects. These periods start from the time when the property is legally handed over and received.
If the problems have appeared in your property within the mentioned time period, in your case 3 years as dampness is generally considered to affects habitation, then according to article 18 of the above mentioned law (LOE) you have 2 years from the time the problem started to claim against the responsible person/s.
Therefore having the problem appeared within the warranty time period, you should make sure to send a notice or a least a burofax (Spanish legal notice) to all the possible agents involved in the construction works who might have any type of responsibility in the problem. Normally when in doubt about who the responsible persons could be: architect, technical architect, constructor etc., a burofax should be sent to all of them in order to interrupt the mentioned 2 years period. Once this time limit has been interrupted by the sent notice then it is wise to seek the service of an architect with expertise in construction defects who will then determine who is the person responsible against whom the claim should be filed.
Sometimes it has been said that if a burofax is sent to just one of the possible responsible persons to interrupt the 2 years period, this interruption will be valid for all of them.However recent Supreme Court Orders understand that the construction agents do not have a proper joint liability, therefore, the interruption of the lapse of time against one of them WILL NOT AFFECT THE REST.
Therefore and in order to avoid extinguishment of a right by lapse of time we advice first of all to notify the problems by BUROFAX to all the agents involved in the construction process and any other possible persons responsible (architect, promoter, constructor, technical architect etc.) within a 2 years after they arise.
In a recent Court Order from the Court of First Instance No. 9 in Alicante in favour of our client Mr S., the Judge understood that we had proven the fact that the technical architect was aware of the problems, so the deadline of 2 years was interrupted, admitting as proof the emails and declaration of the witnesses; however we recommend to send notice by burofax in order to avoid any problems.
Should any reader be in this situation or similar please do not hesitate to contact us and the appropriate advice will be provided.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
This article is available in English and Spanish at our Web site: www.white-baos.com
Carlos Baos (Lawyer)
Tel: 966 426 185
E-mail: info@white-baos.com
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