construction defects: Can the promoter be exonerated?

 defectos constructivos

The developer who has not intervened in the work can exonerate himself from his responsibility for construction defects

 

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When the developer or contractor has not had any intervention in the construction process, you will be exonerated of the responsibility for constructive defects, established in art. 1591 CCivil.

The problem lies in proving that the promoter did not have any direct intervention. We see below how one of these cases solved the Section 25 of the Provincial Court of Madrid in judgment on 25 May 2020, (Resolución 171/2020). 

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

REALIA BUSINESS, S.A., as promoter, filed a lawsuit with an action to repeat 108.000 €, against the other building agents, because they had been condemned, in solidarity,in the final judgment issued by the Section 8 of the Provincial Court of Madrid, the 29 April 2013: Realia had been sentenced to compensation for damages caused to a Community of Property Owners of Alcalá de Henares, as a consequence of the vices and constructive defects of the building, by virtue of the liability derived from the provisions of art. 1591 CCivil.

The promoter exercised was a acción de repetición against the other participants in the construction of the building, because with them he contracted the execution of the work. Realia had to pay the compensation amount to the Community of Owners for those vices, as guarantor of the final result of the work.

Primera Instancia

The Court of First Instance No. 9 Madrid gave judgment on 22 July 2019, dismissing the lawsuit filed by REALIA BUSINESS, S.A., against FCC CONSTRUCCIÓN, S.A., D. Victoriano and the heirs of D. Carlos María.

Provincial Court

REALIA BUSINESS, S.A., interpuso recurso de apelación.

Decennial responsibility of art. 1591 CCivil

According to jurisprudential doctrine, the responsibility for defects in construction extends, not just the building contractor, but also to the other agents (STS 10/10/1992).

Promoter liability exemption

The Chamber brought up the jurisprudential doctrine contained in the STS 3/05/1995, which established that The promoter must be exonerated from the responsibility referred to in the article 1591 CCivil when it is proven that he did not intervene in any of the aspects of the work, namely, in the construction process. Disclaimer that, apparently, finds its justification in the fact that, not having had any intervention in the construction process, he could not contribute with his conduct to the causation or production of the ruinous vices. "

Burden of proof

La dificultad radica en la prueba de un hecho negativo como es lano intervención”  en la obra.

As has been repeatedly established in jurisprudential doctrine (STS 10/07/2003, for example):

"The impossibility of proving a negative fact, by means of a positive event of the same meaning, it produces the effect of moving the onus probandi to the party that holds the opposite positive event. "

Therefore, para la Sala, It was up to the defendant to prove the intervention of the promoter in the work. However, with the evidence provided, they could not prove with certainty that the developer supervised and controlled the construction process of the building, giving rise to these vices, so that, exonerated REALIA BUSINESS, S.A., of the responsibility referred to in art. 1591 CCivil.

By not being able to specify the responsibilities of each agent, the Chamber condemned them all, a reintegrate the promoter, in solidarity, the amount of compensation for said constructive defects, with the corresponding default interest. The reimbursement for the procedural costs that originated in the previous process did not proceed.

Conclusion

When the developer or contractor has not had intervention in any of the aspects of the work, You will be exonerated from the responsibility established in art. 1591 CCivil in case of construction defects. And it is the other agents who must prove the existence of an effective intervention.

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