Interruption of the prescription in construction defects

defectos constructivos

Does the claim for construction defects to the developer interrupt the prescription before the architect and surveyor??

   Consult your case for free now

If the surveyor and architect knew the claim for construction defects through the developer, the prescription is discontinued. An out-of-court claim expressly addressed to a surveyor and architect is not necessary, when they were aware of the claim, even visiting the property as a result of it.

The solidarity between the construction agents raises doubts about the interruption of the limitation periods to claim the construction defects. We comment in this post the sentence of the Civil Chamber of the Supreme Court of the 22 June 2020, (Resolución 331/2020)  that solves one of these cases.

It upheld the appeal filed by D. Teodosio and Mrs.. Valley by construction defects of your single family home. He sentenced the promoter, the surveyor and the architect to carry out the necessary works, or to pay them the expenses that would entail doing these works on their own, around 60.000 €. The Chamber considered that there was no prescription of the action and that the extrajudicial claim to the promoter was also extended to the other defendants, having visited the house,  having to respond in solidarity.

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

D. Teodosio and Mrs.. Valle filed a claim for an amount in September 2010 against SURCERO, S.L., developer, D. Sigismund, rigger, y D. Luis Carlos, architect, so that they jointly carry out the necessary works to eliminate and correct the construction defects of their single-family home, because it suffered from ruinogenic construction defects, hidden vices and pathologies. In case of not wanting to carry out the works, requested that they be paid the amount of 60.000 €, so they can take care of the repairs themselves.

All the defendants objected to the lawsuit. D. Sigismund and D. Luis Carlos claimed statute of limitations, for not having exercised it in the two years after finishing the building and the existence of improper solidarity.

Primera Instancia

The Court of First Instance No. 1 Talavera de la Reina gave judgment on 26 October 2015, estimating the lawsuit filed by D. Teodosio and Mrs.. Valle. He sentenced SURCERO, S.L., D. Sigismund and D. Luis Carlos to what, jointly and severally, They will carry out all the necessary works and repairs to eliminate and correct construction defects and defects. In the event that they are not carried out within the 2 months from the notification of the sentence, ordered them to pay the amount equivalent to the cost of the repair, 60.000 €.

Regarding prescription alleged by the defendants, the Court considered that when the claim was filed, within 2 years had elapsed, but that was interrupted by the extrajudicial claim that D. Teodosio and Mrs.. Valle directed the entity SURCERO, S.L., the 21 September 2011 by sending a burofax. The defendants responded by visiting the single-family home on 15 March 2012. Of the visit, produced a written report on 14 May 2012 proposing solutions to the claimed defects. Therefore, D. Sigismund and D. Luis Carlos were aware of the damages that the house presented after delivery. LThe interruption of the prescription took effect against them, being the joint responsibility, by not being able to define the responsibility of each of the intervening parties.

Provincial Court

D. Luis Carlos and D. Sigismund filed an appeal.

Section 1 of the Toledo Provincial Court issued judgment on 23 October 2017, estimating both resources, absolving the appellants.

The Chamber considered in this case that, by not making the extrajudicial claim expressly to D. Sigismund and D. Luis Carlos, the prescription had not been interrupted. Although the appellants came to know that the plaintiffs had complained to the promoter, no genuine out-of-court claim was brought against them in order to hold them accountable. Ultimately, considered that the extrajudicial claim did not meet the requirements of art. 1973 CCivil and that the claim addressed only to the promoter did not interrupt the limitation period with respect to the others..

The Chamber appreciated the prescription of the action against D. Sigismund and D. Luis Carlos on understanding that two years had elapsed since the evidence of the damage (art. 18 READ). In return, Yes, the prescription against the promoter was interrupted, according to art. 1973 CCivil, because a burofax was sent, although the claim has not been extended to the other defendants.

Supreme Court

D. Teodosio and Mrs.. Valle filed an appeal.

They alleged two reasons:

  • first plea: violation of art. 1973 CCivil. There was an interruption of the prescription with respect to the surveyor and the architect after the extrajudicial claim of the owners to the developer, because the visit was made by both and by the representative of the promoter. Also, a report on the defects was issued by all three, proposing solutions. This act made clear the intention of claiming by the homeowners.
  • second reason: subsidiary to the first as there is contradictory jurisprudence of the Provincial Courts, although not from the Supreme Court, related to the prescription of the action.

Both reasons were upheld by the Chamber.

The room understood, as in the first instance, that, taking into account the jurisprudential interpretation of art. 1973 CCivil, the extrajudicial claim yes came to the attention of the other defendants, for, even, They went to the home and made a report with the solutions that could be adopted to solve the defects. Therefore, para la Sala, They were deemed required by the claim for reasons of connection and dependency (STS 418/2018, of 3 July).

Conclusion

When an extrajudicial claim is sent by burofax to the promoter of the construction of the house, and this makes it known to the rest of the agents, Prescription is interrupted, although it has not been expressly referred to them.

However, if the architect and surveyor had not been aware of the claim, the request to the promoter would not have interrupted the prescription as it was a improper solidarity (Judgment of the Supreme Court 16 January 2015).  

 Consult your case for free now

Leave a Reply

Language


Set as default language
 Edit Translation


Subscribe to receive a book PDF


Just for signing up receive via email the link to download the book "How to change lawyers" en format digital.
Sign up here

Sígueme en Twitter



Subscribe me

* This field is required