strict liability of the owner and construction defects

defectos construccion

 

The owner of a property is liable for damage caused by leakage from the same, without having to prove the existence of fault or negligence

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The Provincial Court of Barcelona Section 1, in Case 28 October 2019 (Res. n.º 579/2019), He has confirmed the responsibility of the owner for damage to parking spaces by leaks from your local. The claim was rejected such damage came from construction defects.

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

A Community of Owners of Parets of the Vallés sued the owner of the premises was on the ground floor of the farm (Properties Isern S.L.). According to the applicant, there were leaks rainwater in the parking spaces as a result of the closure of the premises was not completely sealed. The plaintiff requested that the necessary work be wrought to solve the problem and compensation for damage to the interior walls of the garage.

Primera Instancia

The 11 June 2018, the Court of First Instance No. 1 Mollet del Vallés, dictó sentencia estimando la demanda.

They were carried out works or works necessary to repair the condition causing leaks rain and affecting the garage and placing enclosures consisting final and water-tight in the four holes that featured local on the line of the facade. He also condemned property to the payment of compensation for damage.

Provincial Court

The owner of the premises appealed the sentence. He alleged that defects that caused water leaks in the garage had originated from the construction of the building itself, and therefore, he should be exempt from any liability.

Añadía también que la acción ejercitada en la demanda se encontraba prescrita en el momento de su interposición por cuanto en el caso de autos no podía acudirse a la teoría de los denominadosdaños continuados”, noting that between the date of acquisition of the premises by the defendant and the two requirements that the plaintiff had addressed it had passed five and a half years during which the applicant has not raised a claim to the defendant, only making claims to the construction itself.

La Audiencia desestimó la prescripción distinguiendo entre “ongoing damage” and “daño permanente”:

In this regard it is relevant to distinguish between the ongoing damage and lasting or permanent damage, that is one that occurs at a given time by the conduct of the defendant, but persists over time with the possibility, even, prejudiced for factors and of the whole alien to the act or omission of the defendant. En este caso de daño duradero o permanente el plazo de prescripción comenzará a correrdesde que lo supo el agraviado”, as required by Article 1968-2º CC, It ie since he had full knowledge of it and could measure its importance by a reasonable forecast, because otherwise the hypothesis of absolute Applicability of action would occur until the death of the injured, in the case of personal injury, or total loss of the thing, in case of damage, thus violating the legal certainty guaranteed by Article 9.3 of the Constitution and foundation, and the embroidery, Prescription. In return, in cases of continued or successive production damages the computer does not start of the limitation period, to production of the final result ( STS 28 October 2009 and 14 July 2010)”.

Construction defects existed, He corroborates this witness, but they were repaired at the time. No se podía por tanto achacar a dichos “construction defects” las filtraciones de agua que en la demanda se alegaban.

The Chamber confirmed that the report of the expert had been correctly valued, it being valid reasoning given in the first instance. It was a non-contractual liability under Article. 1902 Civil Code, for the production of the harmful event default. all requirements were given by doctrine, namely:

a) A subjective element represented by a do or omit something that is outside the rules of caution and foresight established by the laws and socially accepted;

b) The production of a harmful outcome; and

c) The reality of a causal link between the two.

Strict liability of the owner

Regarding Article. 1910 of the Civil Code "establishes an objective responsibility of the householder who lives in a house or part of it for damage caused by things that arrojaren or they fall in the same, It is an established judicial interpretation which establishes a strict liability of the owner of a farm for damages caused to third parties by leaks and fumes from this, de modo que I need not enter examine whether or not the fault concurs (negligence or lack of diligence required of a good parent) of the defendant in producing damage, it is sufficient to impute liability to the defendant, It is accredited certainly causation between damage claimed element and property of the defendant”.

The appeal was dismissed in its entirety.

Conclusion

The owner of an estate is liable for damages caused to third parties by leaks from your property, without having to prove the existence of fault.

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