Practical Keys for the Defense against Building Defects and Flaws

The recent judgment delivered on 14 April 2025 by the Court of First Instance No. 5 of Fuengirola, fully upholding the opposition filed in defense of our client, a well-known builder, and dismissing the claim brought by a Community of Property Owners, with express imposition of costs, constitutes a new success for Summons Abogados in the field of civil liability arising from construction. The legal representation was assumed by our lawyers Ignacio Montoro and Jorge Ballester, specialists in complex litigation.

This decision offers an excellent opportunity to analyze in detail the fundamental elements that shape construction-related civil liability under Spanish law, the different types of building defects and flaws, the statutory limitation periods for claims, and the best practices to address these proceedings, both from the claimant’s and the defendant’s perspectives.

1. Concept of Construction-Related Civil Liability

Construction-related civil liability falls under the regime of liability for building defects set out in Act 38/1999 of 5 November, on Building Regulation (LOE), complemented by the Spanish Civil Code and the consolidated case law of the Supreme Court.

This regime imposes specific obligations on the agents involved in the construction process —developer, builder, architect, technical architect, and others— holding them liable for material damages affecting the building, whether due to execution defects, project deficiencies, or defective materials.

The purpose of this liability is to protect the interests of purchasers and users of real estate properties, ensuring that buildings meet the required standards of safety, habitability, and functionality.

2. Types of Building Defects and Flaws

Legal doctrine and case law classify building defects and flaws according to their nature and severity:

a) Structural Defects or Material Ruin

These are defects that affect the building’s structural elements (foundations, supports, beams, slabs, load-bearing walls, etc.), compromising its mechanical resistance and stability.

Examples: collapse of slabs, significant cracks in load-bearing walls, differential ground settlement.

These defects entail a liability period of ten years from the acceptance of the works, pursuant to Article 17.1.a) LOE.

b) Defects Affecting Habitability

These refer to flaws that compromise the building’s watertightness, thermal or acoustic insulation, functionality of installations, healthiness, or user safety.

Examples: water leaks, heating system deficiencies, rising damp, lack of acoustic insulation.

Liability for these damages lasts three years from the acceptance of the works (Article 17.1.b) LOE).

c) Finishing or Minor Defects

These include minor imperfections that affect the building’s aesthetics or non-essential aspects of its use.

Examples: flaking of wall paint, defects in coatings, faulty carpentry.

The limitation period for claiming these defects is one year from the handover of the works (Article 17.1.c) LOE).

3. Warranty Periods and Prescription of Actions

In addition to the warranty periods mentioned above, it is crucial to consider the limitation period for bringing actions:

Two years from the date the affected party became aware of the damage, pursuant to Article 18 LOE.

Case law interprets "awareness" as not merely the perception of the damage but also the reasonable possibility of attributing it to a specific construction defect.

Therefore, it is essential to properly document the moment the damage appears, supported by expert reports and extrajudicial claims, to avoid the risk of prescription.

4. Technical Specialization: An Indispensable Requirement

Defense in construction liability proceedings demands a high level of technical and legal specialization, due to several factors:

• Technical complexity of the defects, requiring understanding of construction processes, technical building standards (CTE, NTE, EHE, etc.), and building pathologies.

• Expert coordination, as effective defense of the client’s interests requires close collaboration with architects, engineers, and building pathology experts.

• Complex expert evidence, often the central element of the proceedings, requiring technical and legal challenges to opposing expert reports.

At Summons Abogados, our extensive experience in construction litigation has enabled us to build a team that combines trial lawyers and renowned experts, ensuring the highest standard of advocacy in every case.

5. Importance of the Evidentiary Phase

Expert evidence is the essential pillar in most construction liability lawsuits. The selection of a competent expert, proficient both technically and procedurally, can determine the outcome of the case.

It is equally important that the expert be able to defend their report effectively in court, maintaining the consistency and soundness of their conclusions under cross-examination and judicial questioning.

At Summons Abogados, we work closely with specialized architectural and engineering experts in building pathology, enabling us to offer our clients a technically sound and strategically planned defense.

Conclusion

Construction-related civil liability is one of the most technical and complex areas within civil and procedural law. Its proper management requires:

• Thorough knowledge of the LOE, the Spanish Civil Code, and the applicable case law.

• Mastery of the technical aspects of construction and building pathology.

• Strategic procedural planning from the outset of the proceedings.

• Close and continuous collaboration with specialized experts.

At Summons Abogados, we take great pride in our track record in this field, having successfully defended builders, developers, and other construction agents in litigation across Spain.

The recent success achieved before the Court of First Instance No. 5 of Fuengirola stands as yet another example of our ability to confidently and effectively tackle the challenges posed by this area of law, always defending our clients’ best interests.