Eviction, squatting and construction defects: the owner's three disputes
Nextica Law & Tax runs the proceedings an owner or developer ends up needing: eviction for non-payment and for expiry of term with an accumulated rent claim, recovery of possession against occupation without title, claims for construction defects within the guarantee periods of art. 17 of the Building Regulation Act —with the liability that same provision allocates between developer, builder and design and site management—, and challenges to owners' association resolutions.
Construction guarantee periods run from handover, and the owner usually finds that out the day the crack appears.
What's included
1. Claiming unpaid rent and eviction, with the claims joined from the outset so as not to litigate twice.
2. Recovering possession against occupation without title, through whichever route fits when and how it happened.
3. Claims for construction defects, first identifying who each one belongs to
developer, contractor, designer or site supervisor.
4. An expert report separating defects affecting habitability from those affecting structure or finishes, because the warranty period differs in each case.
5. Disputes with the owners' association over common elements, works and levies, with majorities and challenge deadlines reviewed.
6. Defence against enforcement files over the property's tourist activity, with suspension requested where there is a cease order.
7. Enforcing what has been won, which in this sector is where you actually get paid or do not.
THREE DIFFERENT CASES WITH NOTHING IN COMMON
Collecting rent, recovering possession and claiming a construction defect have completely different routes, deadlines and evidence.
Claiming a defect without first classifying what kind of defect it is
the law distinguishes those affecting completion or finishes, those affecting habitability and those affecting the structure, and each carries a different warranty period and a different responsible party. Getting the category wrong can leave the claim out of time.
art. 17 of Law 38/1999 on Building StandardsEvicting without joining the money claim
you recover the property and lose the case for the rent, which has to be started again from scratch with the tenant already gone and no known address.
art. 438 of the Civil Procedure ActChallenging an owners' association resolution out of time
the horizontal property rules set short limitation periods for challenges, and once they pass the resolution stands, even where the merits would have favoured whoever disputed it.
Frequently asked questions
How long do I have to claim for a construction defect?
It depends on the type of defect, and art. 17 of the Building Regulation Act sets three different guarantee periods running from handover of the works: a longer one for damage affecting foundations, supports, beams, floor slabs and load-bearing walls that compromises the building's strength and stability; an intermediate one for damage affecting habitability; and a short one for finishing defects. Each then carries its own limitation period for bringing the action once the damage occurs, so the first step is always to date the handover.
What if the occupier is already inside?
The procedure and the speed depend on what relationship there is. If there was a contract and payment stopped, the route is eviction for non-payment, which allows the claim for unpaid rent to be joined and where the outcome depends heavily on how the non-payment is evidenced. If there was never any title, the route is recovery of possession, with a specific procedure for recovering a home occupied without consent. In both cases the difference between weeks and months lies in the prior paperwork: contract, receipts, formal demands and evidence of when and how entry occurred.
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