Cracks or damp in your new home: who exactly do you sue
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
You bring the liability action under the Building Act against the developer, the builder and the technicians, who are jointly liable where the cause of the damage cannot be attributed to one of them. The guarantee runs one year for finishes, three for habitability and ten for structural elements, counted from handover of the works. The action lapses two years after the damage occurs.
You bought a newly built flat and the developer handed over the keys eighteen months ago. In the first winter damp patches appeared in the bedroom facing the front, and this year they have spread to the living room. The plasterboard is bulging and there is condensation on the windows. You have written to the developer four times; it sent a workman to paint over the marks and then stopped replying. Two other neighbours have the same problem. You want a real repair, and to know who the claim goes against.
The case, in five lines
- What is brought
- Liability action for physical damage arising from construction defects under article 17 of the Building Act, seeking the repair or its cost together with the resulting damages.
- Before which court
- The Civil section of the Tribunal de Instancia (the first-instance court) for the place where the building stands, under the ordinary form of civil proceedings.
- Deadline
- Two years from when the damage occurs. The damage must also have appeared within the one, three or ten year guarantee counted from handover of the works without reservations, or from the remedying of those reservations.
- Who can bring it
- The owners and subsequent acquirers of the building or of part of it where it has been divided, each in respect of the damage affecting them.
- Financial risk
- The case is won or lost on the expert report, whose cost is paid up front. If the claim is brought outside the guarantee or after the two years, dismissal comes with an order to pay costs.
The Act gives three separate guarantees and each defect falls into one
Article 17.1 of the Building Act sets the periods running from the date the works were handed over without reservations, or from the date those reservations were remedied. For ten years there is liability for damage caused by defects affecting the foundations, supports, beams, floor slabs, load-bearing walls or other structural elements, and directly compromising the mechanical strength and stability of the building.
For three years there is liability for damage caused by defects in construction elements or installations that result in a failure to meet the habitability requirements. And the builder is additionally liable, for one year, for damage from execution defects affecting finishing elements. Persistent damp that makes a room uninhabitable is not a finish: it falls within the three-year guarantee.
Classifying the damage correctly is the first decision in the case, because whether the claim is in time and whom it is aimed at both depend on it. The same damp patch may be a finishing defect, a failure of the facade waterproofing or a structural crack, and each reading opens a different door. That classification is set by the expert, not by the developer's emails.
If the cause cannot be pinned on one party, all are jointly liable
Article 17.2 states that civil liability is enforceable on a personal and individual basis, both for a party's own acts or omissions and for those of the persons for whom it must answer. That is the starting point, and it is also what the developer invokes when it tells you the problem lies with the facade subcontractor and that you must deal with him.
Paragraph 3 corrects that starting point. Where the cause of the physical damage cannot be individualised, or concurrent fault is proven without the degree of each party's involvement being determinable, liability is enforced jointly and severally. In a building with damp that may originate in the design, the execution or the site supervision, joint liability is the rule and not the exception.
The developer is always liable to the buyer
Article 17.3 closes with a sentence that decides many cases: in all events the developer is jointly and severally liable, together with the other parties involved, to potential acquirers for physical damage to the building caused by construction defects. There is no need to reconstruct the chain of subcontractors in order to claim: it is enough to sue whoever sold you the flat.
Paragraph 4 extends that liability to those who, under the contract or through their decisive role in the development, act as developers in the guise of managers of cooperatives, of owners' associations or similar arrangements. It is the rule that prevents an interposed corporate structure from leaving the buyer with nobody to claim against once the company that signed the deed has ceased trading.
Two years to sue from when the damage appears, not from handover
Article 18.1 provides that actions to enforce the liability under the preceding article for physical damage arising from defects lapse two years after that damage occurs, without prejudice to any actions that may survive for breach of contract. There are two separate clocks: the guarantee runs from handover, the lapse period runs from the damage.
That is why the developer's friendly reply is dangerous. Every month of emails, workmen's visits and cosmetic repairs eats into the period while the damage remains. The way to stop the clock is a verifiable, dated demand with concrete content and, if that produces nothing within weeks, the claim itself. Paragraph 2 of the same article also sets two years for the recovery action between the parties involved.
Alongside the special Act, contractual liability remains alive
Article 17.9 warns that these liabilities are without prejudice to those the seller owes the buyer under the sale contract signed between them and under the law applicable to sales. The route under the special Act and the route under the contract do not exclude one another, and in the same case both may be argued at once on different grounds.
Article 1101 of the Civil Code makes liable in damages those who in performing their obligations act with wilful default, negligence or delay, and those who in any way contravene the terms of those obligations. Article 1591 makes the contractor, and the architect who supervised the works, liable for collapse due to construction defects within ten years, with a fifteen-year action where the cause was a breach of the contract terms.
How we run the case, step by step
- 1
Date the handover and classify the damage
We locate the handover record, the deed and the building book to fix the day from which the guarantees run, and we determine whether the damage is one of finishes, of habitability or structural, since that establishes the applicable period and the list of defendants.
- 2
Expert report identifying the cause
We commission a report describing the defect, its origin, the moment it appeared and the cost of repair. It is the centrepiece of the case: if the expert cannot individualise the cause, the joint liability of article 17.3 is triggered.
- 3
Verifiable demand to all parties involved
We send a burofax demand to the developer, the builder and the technicians who signed the final works certificate, and we notify the insurers named in the building documentation, enclosing the report and setting a firm deadline for a reply.
- 4
Prior attempt at a settlement
We document the negotiating activity that article 5 of Organic Act 1/2025 requires as a condition of admissibility in civil matters, with a concrete proposal for repair or compensation whose subject matter matches what will later be claimed in court.
- 5
Claim against developer, builder and technicians
We sue all the identified parties jointly and, where applicable, their insurers, seeking an order to carry out the repair or to pay its cost, plus the proven losses for temporary rehousing, damage to furnishings and loss of value.
- 6
Enforcement of the judgment and control of the works
Once the order is obtained, we make sure the repair is carried out in line with the report or, if compensation was chosen, we attach assets to collect it. The same expert certifies at the end that the defect has gone and has not merely been covered up.
The evidence that decides the case
- The handover record, with or without reservations, which fixes the day from which the guarantees run.
- The expert report identifying the defect, its cause and the cost of repairing it.
- The building book and the design documents, with the final works certificate and the technicians who signed it.
- The dated photographic record and the readings of damp levels or crack widths taken over time.
- The correspondence with the developer, showing the workmen's visits and the cosmetic repairs it carried out.
- The minutes of the owners' meetings in which other neighbours describe the same defect in their homes.
What closes the door
- Waiting for the developer to reply until the two years of article 18.1 run out. Polite emails interrupt nothing if there is no verifiable demand and no claim.
- Repairing at your own expense before an expert documents the state of the property. The evidence of the defect is lost, and with it any chance of proving its cause.
- Aiming the claim only at the builder or the technician and leaving out the developer, who under article 17.3 is jointly liable to the acquirer in all events.
- Treating as a finish a defect that makes the room unusable. Confusing the one-year guarantee with the three-year one puts the claim out of time for no reason.
- Accepting a partial repair in exchange for signing a general release covering every defect in the property, including those that have not yet appeared.
The law that applies
- Art. 17 LOE. Sets guarantees of ten years for structural elements, three for habitability and one for finishes borne by the builder, imposes joint liability where the cause cannot be individualised, and makes the developer liable to acquirers in all events. BOE-A-1999-21567
- Art. 18 LOE. Sets a two-year lapse period, running from when the damage occurs, for the action enforcing article 17 liability, and a further two years for the recovery action between the parties involved or by their insurers against them. BOE-A-1999-21567
- Art. 1591 CC. Makes the contractor liable for damage where a building collapses through construction defects within ten years of completion, and the supervising architect liable where the collapse is due to a defect of the ground or of the supervision, with a fifteen-year action for breach of contract terms. BOE-A-1889-4763
- Art. 1101 CC. Makes liable in damages those who in performing their obligations act with wilful default, negligence or delay, and those who in any way contravene the terms of those obligations. BOE-A-1889-4763
- Art. 5 LO 1/2025. Makes prior resort to an appropriate dispute resolution method a condition of admissibility in civil matters, with identity between what is negotiated and what is litigated, and accepts negotiation conducted directly by the parties or their lawyers. BOE-A-2025-76
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
When do the ten years of guarantee start running?
From the date the works were handed over without reservations, or from the date those reservations were remedied, under article 17.1 of the Building Act. They do not run from the sale deed or from the handover of keys to each buyer, so someone buying a recently built flat second hand may have less guarantee left than they think.
Do I have to sue the subcontractor who built the facade badly?
No. Article 17.3 provides that in all events the developer is jointly liable with the other parties to acquirers for damage caused by construction defects. Moreover, paragraph 6 makes the builder directly liable for damage from execution defects in the parts it subcontracted, without prejudice to any recovery action it may later bring.
Is damp a finishing defect or a habitability defect?
It depends on its origin and its effect, and the expert report decides. Article 17.1(b) covers for three years the damage from defects in construction elements or installations that cause a failure to meet the habitability requirements, whereas the one-year guarantee borne by the builder reaches only finishing elements.
Does the developer coming to repair interrupt the time limit?
Not on its own. Article 18.1 sets a two-year lapse period from when the damage occurs, and what stops that clock is a verifiable demand with concrete content, not a visit or a spoken promise. That is why each intervention by the developer should be accompanied by a burofax recording the defect and keeping the claim alive.
Can I also claim under the sale contract?
Yes. Article 17.9 makes clear that liability under the special Act is without prejudice to the seller's liability to the buyer under the contract signed and under sales law. To that is added article 1101 of the Civil Code, which requires compensation for damage caused by wilful default, negligence or delay in performing obligations.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.