Structural Problems - whose responsible?

Hi all

Just wondering if anyone can help point me in the right direction on a problem we have.  We have a drain on our terrace that is meant to drain away the water.  Unfortunately it seems to be draining it away into our lovely downstairs neighbours apartment.

We can't get over to Spain to have a good look until 9th June, and our neighbour has been up there to try and see if he can figure out what's wrong but to no avail.

Who do you think we should talk to in order to get it fixed?  Would it be something the President could help us with or do we need to sort this out ourselves?

Basically we need to know whose problem is it, because although it appears to be coming from our property, we aren't affected by it, but we don't want to ruin the good relationship we've got with our neighbour.

I know this is something we really should have found out before we started having any problems but as per 100's of other people 'you don't think it's going to happen to you....' 

Thanks!

Helen

Hi, you need to know where the water is coming from before you can know who's problem it is! If it's from a communal pipe then it is the communities problem....but if it is from your pipe or rain water from your terrace then you will have to fix it. If someone has your keys then they should be able to see where the problem is comimg from and go from there..............your Presidente may be able to advise how to sort the problem when and if you know what it is.......................that's if he7she is a helpful, kindly Presidente.

Good luck, hope you get it sorted ok.

Thanks Karen

It's a drain that we share with our neighbour to the right of us so does that count as communal? I hope so!!!

We've never had to deal with the president before.  I wonder if our downstairs neighbour has spoke to him yet?  I'll try that avenue next.

Ooooooh we are learning the hard way that Spanish property ownership isn't all fun in the sun!

I really don't know if it's communal or not! usually something communal is shared by all the community but if the pipe is outside your personal boundry  ie  if it is on a communal wall  there is a good chance it is community.

My husband is a Presidente, but just remember the Presidente is elected to work FOR the community......................and he / she is only a person just like you !!!!

Good luck.

http://www.eyeonspain.com/spain-magazine/building-defects.aspx

Cheers!

M

Hi,

I've been looking for a thread that seems relevant to our problem.  We completed on our property in November 2007, but only visit during holiday times.  While we were In March this year (2009), we had several very bad storms, which highlighted a problem we have with our balcony, but were unaware of until this time.  Our upstairs neighbours balcony has railings fitted and when it rains the water pours on to our balcony.  Our balcony has a solid wall with just a very small drainage hole, the balcony floor doesn't drain away very effectively towards the drainage hole, so the result is that water lies around on our balcony, unable to escape.

We told the developer straight away and they told us to get permission from our upstairs neighbour so that corrective drainage which re-routes the water, could be carried out.  We eventually got this permission, but now the developer is refusing to carry out the work because the upstairs apartment has a railings and agreement had only been given, at a previous community meetingabout other apartments affected by this, for remedial work to be carried out on apartments with a solid wall.  This seems ridiculous to us as we have the community's approval to have  the work done.  It is presumably a tactic being used by the developer to back out of spending unnecessary money on correcting a design fault.  Does anyone have any advice as to how we stand legally?  We are still hoping the builder will see sense but obviously something needs to be done before the structure of our balcony is damaged.

Thanks

Hi Atico

Although your balcony seems belong to you it is just a special common area designed for your private use.The duty of repair lies in the community as a whole under section 10 (1) of the Horizontal Property Act 49/1960. There are hundreds of rulings holding accountability on communities at this respect

I think it is clear that it is a typical case of building defect, but don’t forget that these balconies are also included as elements to be repaired by the community

Whether the liability lies with the developer or with the community is of no importance. Both could be accountable because with the lack of repair the community is contributing to the deterioration

The community is entitled to sue developers for building defects. The Court of Appeal ruling in Vizcaya 02-10-2008 held responsibility to a community  for common elements repairs even in case of building defects which had not ever been claimed. . Thus, remedying defects in the original construction are within the scope of the communities’ duty to repair. CA ruling in Asturias 29-12-2006 and CA ruling in Madrid 31-03-2008, CA ruling in Almeria 26-04-2004 took the same approach.

Spanish Solicitor,

Thanks very much for your reply.  It's interesting that you say the duty of repair lies with the Community, they have already said it is nothing to do with them and that we have to claim against the developer ourselves.   The developer has refused to do anything.  Would you recommend we ask the Community to sue the developer or for us to tackle that ourselves?

Thanks again.

First of all you have to check your deeds and the commonhold community statement (escritura de declaracion de obra nueva y propiedad horizontal) in order to find out whether the balconies are common parts or not. Usually there is no express reference about this matter in most of the deeds so surely your balcony is a common part subject to private and exclusive use. That means some kind of accountability on the community.

You are dealing very well so far with this issue because you have a developer and an Owners’ Committee recognizing the fault.

The developer’s excuse is ridiculous. He is admitting that the repair has to be done but because of lack of Owners’ Committee resolution he is not allowed to do so. Thus, he is asserting that the balcony is a common part. As you probably can imagine the Owners’ Committee deals usually with issues related to common parts so if the Committee has previously dealt with similar cases in certain way it is not entitled to act in a different manner.

Can you tell us something about the previous agreement of the meeting in regard with this problem? If the community did not pay to the developer for such works in the other flats I can’t understand the necessity of agreement about this matter. The developer does not need any permission from the Owners Committee in order to repair this kind of faults

Who can be sued in your case?

You may claim against your neighbour, developer and against the community in the same lawsuit (better safe than sorry)

Against your neighbour under section 9 (1) (b) of the Act

The duties of each owner include:

(b)  to maintain their own flat or premises and private installations thereof in a good condition so that no harm is caused to the commonhold or other owners

Each owner should be responsible for the repair and maintenance of the interior of his unit, and is required to carry out the adequate repairs. He should avoid damages to the common parts or to other owners.

Against your community under section 10 (1)

(1) The commonhold is obliged to carry out works necessary for the proper upkeep and maintenance of the building and its facilities to ensure appropriate structural conditions, imperviousness, habitation and safety  You can also add  case law in which courts recognize a duty on the community to sue for building defects

Against the developer

In this case the court could be reluctant because the fault is not in your property

Thanks again for your prompt reply, I'll try and find the answers to those questions, unfortunately I need to find a translator!