Surveys: good for buyers, but also good for sellers

A wise buyer will always want to hire a professional surveyor or Spanish trained technical architect to inspect the property and ensure it is in the right condition and sold as offered. This will give you the confidence to proceed with the transaction and sign the purchase contract. However, not all possible technical defects to a property can be spotted even by a surveyor – some are simply out of view within the structure – so what do you do when confronted with such a situation?

When selling a property in Spain, the seller is obliged to deliver it ready for habitation and in a suitable condition. Regardless of its age, if the home is in use and has been sold, the buyer will expect to receive a liveable house, unless otherwise agreed. However, the buyer, when accepting the price, has to take into account the existence of any defects or damages from usage and the passing of time, which are mostly visible. With this, we refer to scuffed walls, chipped paint, small cracks due to ground settlement, dirt on the exterior pavement, broken tiles, faulty taps, etc. – in essence, the usual things that one expects to find in a second-hand property.

You have signed a contract, but still have rights

So, what about hidden defects that are not so obvious? For example, an electrical installation in bad condition, clogged pipes, humidity caused by cracks in the roof, air conditioning systems that are not working and similar things of this kind. If the seller didn’t mention them, and the buyer couldn’t know about them when he made his initial visits before buying the property, he does not have to put up with such defects provided that two conditions are met: (a) that the problem was not visible under normal conditions and that (b) enjoyment of the property in optimal circumstances, i.e. normal conditions, is prevented as a result.

In such cases, the buyer has six months to demand that the seller repairs the defect(s). This is called ‘acción de saneamiento de vicios ocultos’ or the sanitation action plan of hidden defects. If these works are not notified within the six-month period, the seller has no legal obligation to repair them. Another issue are defects of greater severity that jeopardise the property’s stability, such as structural defects, or urban irregularities, for which the period of claim is five years.

Where surveys fit in

Surveys are useful to identify the existence of ‘visible’ defects and flag up possible hidden defects, but in no way eliminate all risk of future claims from the buyer. This is because such expert reports are made in order to check the general functioning of the facilities and identify visible defects, not to make an exhaustive study of the property, which would require more time and effort, more disruption to the property and a bigger budget. When the surveyor detects evidence of a hidden defect, such as humidity, it will be included in his report, with a recommendation that it be studied in greater depth, to ascertain how extensive the problem is. At the end of the report, the expert will add that the document does not serve to rule out the presence of hidden problems that have not been detected.

It is common that in the deeds of sale, the seller includes a clause where the buyer ‘knows and accepts the physical state in which the property is found, thus renouncing the future right of action against the seller’. However, jurisprudence has shown that this type of exemption clause has no effect and cannot be enforced upon the buyer if it doesn’t identify the specific defect for which the buyer is claiming reparation.

A survey can be useful for Sellers as well as Buyers

If the seller wants to limit the possibility that the buyer can claim for hidden or dormant defects, they must be identified beforehand and stated in the contract. A survey report can help but ultimately does not eliminate this risk.

Surveys are usually carried out by architects or quantity surveyors who are the professionals most suited to this task. My advice is for the expert to cover the following points:

• Identify construction defects and their possible causes
• Check the correct functioning of water, air conditioning, light, appliances, gas, sanitary and other installations
• Identify discrepancies between the house built according to the licence and the title deed, and the existing building. The latter will be used to detect extensions and check if they were made with an urban planning licence or not

This is an excellent first start in protecting you against possible surprises, but also know that with a good lawyer on your side, the legal system provides recourse in the case of undetected problems.

Our thanks to Adolfo Martos Gross Solicitors for legal advice in preparing this article.

By Adam Neale | Property News | February 3rd, 2020

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