It is not abnormal for defects to crop up after the purchase of a property. This is no different with a Spanish property. Therefore, this article will explain the responsibility of the buyer and the seller in the case of visible and hidden defects.
What do we mean by defects?
In Spain, a defect in a property exists when there are facts or circumstances that negatively affect the quality of the construction and prevent the normal use of the property. A defect is serious if, had you known about the defect at the time of purchase, you would renegotiate the price or abandon the transaction altogether.
As in Belgium and the Netherlands, there is a distinction between a visible and a hidden defect.
In Spain, a defect is visible when a layperson - someone not professionally active in the construction or real estate sector - can identify problems with the structure after examination.
Visible defects are the responsibility of the buyer. This means the buyer has a duty to investigate, but taking into account his limited (or non-existent) expertise. For this reason, before the appointment with the notary, the buyer visits the property again.
A defect is hidden when it is not visible at the time of purchase. In the case of a new construction, the defects were also not discovered by professionals such as an architect.
Hidden defects are the seller's responsibility, but on condition that:
- the defects existed before the transaction was finalised;
- the defects cannot be easily detected;
- the buyer did not know at the time of purchase that those defects were present.
For example, consider a defect that affects the stability of the house, problems on the roof/roofing causing leaks, etc.
The scope of the seller's responsibility differs for new construction and for resale (existing homes).
How far does the seller's responsibility extend in new construction?
In new construction, there are three warranty periods. There is a warranty period for defective workmanship and (installation of) new equipment. This period is 1 year from completion or 6 months after purchase.
There is also a 3-year warranty period for defects that negatively affect the quality of the house. Consider, for example, problems with the drain in the bathroom.
Finally, there is the 10-year liability guarantee that covers defects affecting the stability of the property. In principle, the construction promoter is obliged to take out 10-year liability insurance.
Note: when you own the land yourself and you have a house built by a builder, the builder is not obliged to take out ten-year liability insurance. As the builder, you are responsible for this. If you do not take out this insurance, you will have to inform the potential buyers of this later on in the event of a sale.
And what about the seller's responsibility in a resale?
When reselling, the seller is also responsible for hidden defects. Here, however, a different deadline applies. The buyer must discover and report problems within the first 6 months of the purchase.
Thus, to sue the seller for hidden defects, the buyer should:
- discover the defects;
- notify the seller by registered letter of the defects, their causes and estimated repair costs.
It is recommended that you appoint an expert to address the seller based on the expert report.
On the one hand, bear in mind that any legal proceedings in Spain can be lengthy and a compromise is often the best solution. On the other hand, the seller may be a foreigner who leaves Spain after selling his property...