Antonio Flores’ Blog

Some days ago, while walking a friend’s dog around La Mairena (Marbella) on an early morning walk in a rainy day I came across an unusual but shocking sight: someone had left abandoned what seemed to be thrity or so huge forty ton boulders, plenty of earth, recently laid pre-grown lawn sections and a smashed gazebo. As I walked around the mess, the sun rose above the horizon and I realized that it was in fact a massive retaining wall that had not been able to shake off the water from the unrelentless rain of the past 4 months and had come crumbling down on to the street.

Of course, when you see this you start thinking on the safety of the people living up in the villa which was the main reason for the wall to be built, but also you think on what words would the owner have for his architect, builder, engineer and, generally speaking, anyone involved in the construction of it. So the next course of action would be to call his lawyer (at last, some business coming our way!), get his opinion on the matter and ask the expected question: so tell me, where do we go from here?

It is not very difficult to imagine what unfolds later: developer, architect, building surveyor (in Spanish “aparejador” or, if you want to avoid offending them, “arquitecto técnico”, sounds cooler), contractor, engineer, OCT (Technical Control Body, in charge of performing the tests on materials and build methods necessary for the 10 year guarantee) all pointing the accusing finger to each other or, where a friendship has been established or alliances exist within the group, whoever they like the least. This frantic buck passing I suppose is only a natural response to what seems a huge bill coming your way, because in the case study of today the works to put that right could easily cost a couple of hundred thousand euro.

Spanish legislators must have seen this very clearly because what they have done, by means of the Edification Act 38/1999, is to put the blame, prima facie, on every single professional which has made money on the project: developer (if different from the owner), architect, “technical architect”, contractor, the OCT and materials suppliers. Which means that, if within a prudent time, they have not met to pull the wrongdoer from within the gang, the law allows the owner to preventively file a civil complaint against all the above operators, jointly.

In principle, it should be easy to establish whose responsibility it was to ensure that the wall stayed upright for many years to come, and so Spanish case law specifically states that, as a general rule, professional liability has to be identified, and so attributes responsibility for defective construction to the contractor, and responsibility for defective design to the architect, and only where it is technically not possible to discern where did it all go wrong will they all be responsible (called “concurring guilt”).

If the architect or the builder had subcontracted the work to other professionals, they both still remain responsible for the lack of competency of their choice of subcontractors, although will have the right to pursue them at a later stage. Builders will also have the right to pursue suppliers if  the materials used were found to be defective.

Fortunately nowadays 95% of new constructions have a 10 year insurance policy (Seguro Decenal) taken out cover defects which compromise the mechanical resistance and structural stability of the job, and so it is much easier to pursue this avenue and twist the insurers arm to get the wall up again quickly. It is then up to the insurer to chase the rest of the gang to establish responsibilities and be reimbursed if they feel it is appropriate, provided they have not waived their liability previously (insurance companies working with the School of Architects or Technical Architects tend to include this clause in their policies).

Finally, the policy will cover the following:

1. Cost of execution of the repair.
2. Architect’s and surveyor’s fees.
3. OCT fees.
4. Licenses and taxes involved in executing the repairs.
5. Any other cost necessary for the execution of the works.

So if you are one of those who thinks that the rain in Spain will NOT stay mainly in the plane then get yourself a proper 10-year insurance policy!

Antonio Flores Litigation, Property seguro decenal, spanish ten year insurance policy