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News
What are hidden vices?
 05

  AUG

What are hidden vices?

Hidden vices, "vicios ocultos", are defects that are not perceived with the naked eye and you are not aware of them until a while after the purchase. According to the Pan-Hispanic Dictionary of Legal Spanish, Hidden defects of the thing existing at the time of acquisition that make it inappropriate for use by that it is intended or that they diminish this use in such a way that, if the buyer had known about it, he would not have acquired it or would have given a lower price for it “Defectos ocultos de la cosa existentes al tiempo de la adquisición que la hacen impropia para el uso a que se la destina o que disminuyen de tal modo este uso que, de haberlos conocido el comprador, no la habría adquirido o habría dado menos precio por ella”. This is also interpreted by the Civil Code in its article 1484.


In other words, the acquired home is not in the conditions that the seller had informed the buyer before making the purchase: there are a series of defects of such severity that they prevent the use or full use of an asset, in such a way To know its existence, the buyer would not have acquired the good.

 

They could be, for example, leaks, dampness, cracks, fissures, faulty finishes, etc. defects that exist before the sale with a certain severity and that are not easily detectable by the buyer with the naked eye. But the courts have on numerous occasions dismissed the hidden defects action when the buyer had experience in the "real estate" or construction world.

 

In summary: 1) That the defect is serious, 2) Be of sufficient importance so that if the home buyer had known about it, they would not have bought the property or would have paid a lower price for it, 3) That the defect is pre-existing to the sale.

 

It may happen that the defects that the property presents are of such an entity that they suppose the delivery of a different thing. In this case, through the action derived from the delivery of "one thing for another", the buyer can terminate the contract of sale and also demand the corresponding compensation for damages. The term to exercise the action is five years.


How can hidden defects be claimed?

 

According to article 1846 of the Civil Code, the buyer will have two options:

1. The redhibitory action: The resolution of the contract that allows for breach of the seller. The seller is obliged to reimburse the buyer for the expenses incurred. In this case, if the seller knew of the existence of hidden defects, the buyer will be compensated for damages.

2. The quanti minoris action: A proportional reduction due to the defects of the property. In this way, the buyer will be able to modify the content of the contract, in relation to the price paid, as a consequence of the loss of a certain value of the good acquired.


What is the deadline to claim?

 

The term to carry out, in second-hand homes, any of these two actions is six months from the date on which the property was delivered. For new homes the term is two years.


What has to be done?

 

The procedure to follow will be as follows:

1. Assess the nature of the damage and discern if the cause is a construction defect or if, instead, it is due to improper use attributable to the buyer. For this, it is necessary to request a report from a qualified technician, either an architect or technical architect.

2. The seller must be notified in writing of the situation detected and the damage caused. In this writing, the date of the contract and the term established to solve them must be indicated.

3. If the seller accepts the claim, the solution will be simple and fast. However, on many occasions the seller objects. In this case, it is best to go to the mediation office, that is, to the Official College of Surveyors and Architects, which may mediate between both parties, in order to avoid trial.

If a satisfactory solution has not been achieved in the previous steps, a judicial process must be initiated, so that the Courts decide who will be responsible for the pertinent reparation. At this time it is essential, in order to be successful in the claim, to have gathered evidence that reliably proves that the hidden defect existed before the purchase of the property.

 

In the event that hidden defects appear after the end of the period established by the Civil Code to be able to claim, there is the possibility of a civil liability policy that makes the difference between the structural elements, installations and finishes.

 

For any questions, our I-VEO real estate experts will be at your disposal.

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