Visible and hidden defects in Spain: who is responsible?

Is the seller liable for defects after buying a property in Spain? Yes, in Spain the seller is legally liable for hidden defects (vicios ocultos), but terms and conditions differ strictly between new construction and existing construction (resale). At existing housing A claim period of only 6 months according to the Civil Code (Código Civil). At new building Protects the Construction Promotion Act (Ley de Ordenación de la Edificación - LOE) the buyer with warranty periods of 1, 3 and 10 years, depending on the type of defect. A thorough preparation during the purchase is crucial to avoid discussions afterwards.

Also listen to our podcast episode on what you can do if you find defects after purchase. 

What is meant by 'defects' in Spain?

A legal lack in Spain is any fact or circumstance that adversely affects the quality of construction and prevents or severely limits the normal use of the property.

To legally qualify as serious, the defect must be of such a nature that, had you known about it during the negotiations, you would have would have renegotiated the purchase price or abandoned the purchase altogether.

As in Belgium and the Netherlands, Spanish law makes a crucial distinction between two categories:

1. Visible defects

2. Hidden defects (Vicios Ocultos)

1. Visible defects: the buyer's obligation to investigate

A defect is visible when an average buyer - without professional construction knowledge - can identify the problem in a normal inspection.

Who is responsible? The copper. In Spain, the buyer has a strict obligation to investigate. Do you accept the property at the notary with visible cracks, moisture spots or broken tiles? If so, you accept this condition and cannot hold the seller accountable for it afterwards.

Expert tip: "We see that discussions afterwards can be avoided by a final inspection visit just before signing the 'Escritura' (deed)."

The expert exception

Are you yourself employed in the construction sector (e.g. as an architect or contractor)? Then the Spanish courts judge more strictly. You are expected to recognise defects faster than a layman.

Read more about how to avoid a mis-selling.

2. Hidden defects (Vicios Ocultos): Seller's liability

A defect is legally 'hidden' if it was not visible during the viewing and could not even be discovered by a standard inspection. Consider structural foundation problems, serious leaks in the pipework in the walls, or infestation by termites.

When is the seller liable? The seller is liable only if these three conditions are cumulatively met:

• Anteriority: The defect existed before the deed of sale was signed.

• Invisibility: The defect was not easy to detect (latent).

• Ernst: The defect renders the property unfit for use or significantly reduces its value.

Liability and Warranties in New Construction (LOE)

With new builds in Spain, the buyer is strongly protected by the Construction Promotion Act (LOE). This law requires construction promoters and contractors to provide specific guarantees.

What if you cannot attend the completion of a new building in Spain yourself?

Three statutory warranty periods apply here (from the date of completion/acceptance of the work):

• 1 Year (Finish): For property damage due to defects in workmanship (e.g. poor paintwork, loose tiles, faulty kitchen appliances).

• 3 Years (Habitability): For defects that affect habitability. This includes problems with hygiene, sound insulation, energy conservation and water tightness (e.g. severe moisture problems or leaking roofs).

• 10 Years (Stability - Seguro Decenal): For fundamental defects that compromise the mechanical resistance and stability of the building (e.g. subsidence, cracks in load-bearing walls).

Read more about the buying process of new construction in Spain.

Important: The construction promoter is required by law to have a 10-year liability insurance policy (Seguro Decenal) to be taken out. Always ask for proof of this policy.

Beware of 'Proprietary construction' (Autopromotor)

Do you own a plot of land and have it built? Then you are the 'car promoter'.

• The contractor is to you not obliged to take out the 10-year insurance (after all, you are the builder).

• Risk: Are you selling this property within 10 years? Then you are u legally obliged to still take out this expensive insurance in favour of the new buyer, unless the buyer explicitly waives it (which is inadvisable).

Liability in Existing Homes (Resale)

When buying an existing property (Segunda Mano), protection is more limited than in new construction. The basic rule here is the Civil Code (Código Civil).

The 6-month deadline The buyer has only 6 months the time from the transfer of the keys (the notarial deed) to:

1. Discovering the hidden defect.

2. Formally and provably declare the seller in default.

How do you hold the seller liable?

Because legal proceedings in Spain can be slow and costly, strategy is crucial.

1. Expertise report: Get a technical expert (Perito) make a report on the cause, the age of the defect and the cost of repair.

2. Burofax: Send a registered letter (via Burofax with content confirmation) to the seller.

3. Negotiation: Try to reach an amicable agreement first.

Statistics: Experience shows that proceedings over hidden defects in Spain can take an average of 18 to 24 months. In most of the cases, a settlement is economically more advantageous than litigation, especially if the seller is a foreigner threatening to leave Spain.

Frequently asked questions (FAQ)

1. What is the difference between a visible and a hidden defect in Spain?

A visible defect can be discovered by a layman during a normal inspection (e.g. a crack in the window). A hidden defect (vicio oculto) is not immediately observable and only manifests itself later (e.g. foundation problems). For visible defects, the buyer is responsible after the deed; for hidden defects, the seller (subject to conditions).

2. How long do I have a guarantee on an existing property in Spain?

When buying an existing property (resale), you have a statutory time limit of 6 months after the deed to report hidden defects to the seller. After this period, your right to claim under the Spanish Civil Code expires, unless there was fraud (dolus).

3. Is a building inspection mandatory in Spain?

No, a building inspection is not required by law, but is highly recommended. Given the buyer's obligation to investigate, you are legally weak if you claim defects that an expert could have noticed beforehand. Confianz always recommends a technical due diligence.

4. What exactly does the 10-year guarantee (Seguro Decenal) cover?

The Seguro Decenal covers only serious structural damage that compromises the stability of the building (such as foundation and joists). It does not cover aesthetic defects, finishing defects or wear and tear.

About the author: Glenn Janssens is a lawyer specialising in Spanish real estate transactions and tax regulations. Since 2017, he has been helping Belgian and Dutch individuals and entrepreneurs to safely purchase and structure real estate in Spain. He guides files from A to Z: from due diligence, ownership and tax control to estate planning and optimisation for residents and non-residents. Thanks to his years of experience, hundreds of handled files and focus on transparent communication, Glenn makes complex Spanish legislation understandable and practically applicable for every property buyer.