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Buyer Beware: How to Avoid the Pitfalls of Buying a Home in Spain

Sometimes it feels difficult to understand your rights when buying a home in Spain.

Buying a home in a holiday destination like Spain is a goal for many. The idea of owning your piece of Spain’s sun kissed beaches in Andalucia or the metropolitan nexus of bustling Madrid. It is an exciting prospect and chance to enrich your life.

Yet property transactions, like anywhere unfamiliar, are tricky to understand and challenging to navigate without the right advice and guidance. With so many beautiful houses and villas for sale in Spain, buyers sometimes don’t spot problems that they would at home. This blog will help you know how to complete a real estate deal amid one of the most-common unforeseen difficulties: Hidden defects.

(Note: Updates to original article made by Lexidy Staff June 2023)

Buyer Beware: How to Avoid the Pitfalls of Buying a Home in Spain

Buying a Home in Spain the Smart Way

There are always minor hiccups when buying a home. It can be connecting utilities, finalizing payments or even defects in the property. Usually, any defects are relatively minor and the you can solve them quickly. But sometimes, these problems can be significant and give you the right to claim against the issue.

These defects are rarely flagged when searching for property for sale in Spain or highlighted by estate agents or realtors. They are often noticed by visual inspection or after buying the property. 

So if you feel that you have a potential case, it’s essential to understand the basics.

Let’s say you’re interested in purchasing a seaside villa in Marbella. During the inspection, you notice some minor cosmetic issues like chipped paint and loose tiles. These are relatively easy to fix and won’t affect your decision to buy the property. 

However, what about the more significant defects that you didn’t notice?

What are the hidden defects when I buy a home in Spain?

Transparency is king when it comes to handling hidden defects with Spanish property. However, they only apply in the sale of real estate and fall under the following categories and circumstances.

  • The seller hid defects in the property.
  • The defect makes it impossible to use the item as intended.
  • The defect is so severe that the buyer would not have purchased the property had they known about it before the sale.

To summarize, the defect must prevent the full use of property without rendering the property unusable. These defects are considered hidden because their existence was unknown at the time of sale. It doesn’t matter whether this was due to the seller’s omission or ignorance.

Let’s say you’ve just purchased a flat with great views of Barcelona. After moving in, you discover that there is severe water leakage in the bathroom, making it impossible to use the shower. This defect was not disclosed by the seller before you bought the flat, and it significantly impacts the functionality of the property. 

You think to yourself that had you known about this issue beforehand, you might even have reconsidered buying the apartment in the first place.

How can I Claim for Defects When Buying a Home in Spain?

Like anything you buy, issues can emerge after purchasing and selling a property. These can be all kinds of faults that impact the everyday use and enjoyment of the property. The most common ones include dampness, cracks, fissures, defects in the finishings, foundations, plumbing, heating or electrical problems.

However, once you’ve identified a hidden defect, what should you do, and how can you make a claim? Here we cover the basics. If the following sounds eerily familiar, we can support you in your claim with legal advice.

Imagine you’ve recently bought a rustic ranch in the Valencian countryside. A few months after moving in, you notice cracks in the walls and sagging floors. These defects affect the overall stability of the house and make it unsafe to live in. 

In this case, you might have grounds to take a redhibitory action, as the defects were hidden and the property cannot be used as intended.

Withdrawing from Buying a Home in Spain

The first avenue for remedies is withdrawing from the sale and is known as “redhibitory action”. If there’s a hidden defect that causes the buyer to lose interest in purchasing the property, they can withdraw from the transaction. This route means that the seller returns all sums paid by the buyer and keeps the property.

The law foresees the payment of damages when the seller acts in bad faith by omitting relevant information about the property’s true condition.

The “redhibitory action” is based on the principle that sellers have an obligation to disclose any defects/flaws in the property. Therefore, if a seller fails to disclose a defect that they knew about, they may have to cover the damages.

To take a “redhibitory action” in Spain, you must notify the seller of the defect within a set period of time after discovering it. You must also provide evidence that the defect existed at the time of sale but was not disclosed by the seller.

If withdrawing from buying a home in Spain due to redhibitory action, you may be able to claim a refund. The refund may include the purchase price, compensation for any damages caused by the defect, and reimbursement of any expenses related to the purchase and subsequent legal proceedings.

As stated earlier, it’s important to note that the time frame and requirements for taking a redhibitory action can vary. Differences can arise based on the circumstances of the sale and the type of product or property involved. 

Therefore, it’s a good idea to speak with a qualified legal professional if you are considering taking a redhibitory action.

Suppose you purchased a newly built Mallorcan mansion. Shortly after moving in, you discover that the plumbing system is faulty, causing frequent leaks and water damage. 

Instead of withdrawing from the sale, you decide to negotiate with the seller. You ask them to repair the plumbing system or reduce the purchase price so that you can fix it yourself. This way, you can still proceed with the purchase while addressing the hidden defect.

Fixing the Hidden Defect After Buying a Home in Spain

If the you still want to buying a home in Spain, they can ask the seller to make the repair or reduce the purchase price so that you can make the repairs themselves. This approach removes any claim for additional compensation since the repair is, in effect, an agreed settlement.

When making a claim, there are two main time limits:

  • Six Months – when buying a second-hand, or older, home
  • Two Years – when purchasing a newly built home

The timeframe starts when you take legal possession of the property, which usually coincides with the act of sale. Beyond these time limits, there is occasionally the possibility to claim a “tort liability”. However, this is almost always assessed on a case-by-case basis and is often unfeasible.

What is Tort Liability?

In Spain, tort liability is a legal concept that holds individuals (or entities) responsible for harm or injury caused through action or inaction. This concept comes from the principle of civil liability in Spain, which is governed both by Spanish Civil Code and other relevant laws.

Under Spanish law, you may hold a person/entity liable buying a home in Spain for torts (civil wrongs) like negligence, intentional harm, or breach of contract. The compensation you can seek for torts applies to physical injury, emotional distress, loss of income, and/or property damage.

However, winning a tort case is often difficult because the burden of proof is on the injured party to demonstrate that the person/entity responsible for the harm acted negligently or intentionally. The severity of the injury or harm, together with other factors like the degree of fault for both sides, determine the damages awarded. 

Consider a scenario where you purchased a beachfront property in Malaga. After moving in, you discover that the previous owner had failed to disclose a significant termite infestation, resulting in extensive damage to the property’s structure. 

In this case, you may hold the previous owner liable for the tort of negligence, since they knew about the infestation but did not disclose it. You could seek compensation for the damages and repairs required.

The Process for Making a Claim:

There are three main steps when claiming for the possible existence of hidden defects when buying a home in Spain.

Get legal advice 

Before initiating any claim, it’s vital to get the right legal advice so that the you can understand your legal rights and realistic outcomes.

Technical assessment

Before taking any legal action, your lawyer should recommend an expert assessment of the property’s hidden defects. This expert will determine the origin of the flaws, whether they are hidden defects and the cost of repairing them. 

This is a crucial step as it will help determine if the defect existed before the time of purchase. Their assessment will determine whether there is enough primary basis for a possible legal claim.

This assessment is usually an “Informe de EvaluaciĂłn de Edificios” (IEE) or Building Evaluation Report.

The IEE is a comprehensive report that evaluates the condition of a property’s structure, installations, and other relevant elements. It covers various aspects of the building, including the building envelope, roof, foundation, plumbing, electrical systems, accessibility, and energy efficiency. The report also includes an analysis of any defects, and the recommendations they have for repair.

A qualified architect or building engineer registered with a corresponding professional organization typically carries out the IEE. The assessment involves a visual inspection of the property, as well as non-destructive testing techniques. Your professional may employ thermal imaging or moisture analysis to help them detect any issues.

In some parts of Spain, an IEE is also required by law for buildings over fifty years old. Apart from that, specific provinces and even municipalities can require an IEE for new construction projects or properties that have undergone significant renovations. Thus, understanding the circumstances of the property is crucial to not only protect your rights, but to follow the local law when buying a home in Spain. 

Inform the seller

Therefore, our team of lawyers at Lexidy recommend contacting the seller to report the hidden defect. A lawyer usually sends a Burofax (yes, they still exist). This is to convey the severity of the situation and the outcome of the technical valuation without yet embarking on legal action. The Burofax also serves as an official communication in case there is legal action later.

You must state the details of your complaint and what claim you are pursuing within this communication.

Let’s say the seller denies responsibility, or fails to respond to the claim. The next step is legal action with a lawyer. Your legal counsel will bring a case before the Court of the judicial district where the property is located and the object to the sale.

It’s crucial to act procedurally but swiftly to follow the appropriate steps within the established legal deadlines. Therefore, we recommend contacting a legal specialist as soon as you become aware of any hidden defects within your chosen property.

Let’s say you’ve discovered a hidden defect in a home you recently purchased in Alicante. Before taking any legal action, you consult with a lawyer who specializes in real estate law. They advise you to get a technical assessment of the property done by a qualified architect or building engineer. 

The assessment confirms the existence of the defect and provides an estimate for the cost of repairs. Armed with this evidence, your lawyer sends a Burofax to the seller, officially notifying them of the defect and your intent to pursue a claim.

At Lexidy LegalTech Boutique, we have extensive experience dealing with this type of dispute. We have specialized technical experts, and we will be happy to provide you with legal advice to resolve any issues you come across when buying a home in Spain.

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