The sale of a house in Torres de Carrizal, a town in Zamora, ended up in court due to a termite infestation. The couple who purchased the house, measuring 855 square meters and two floors, for 48,000 euros quickly realized that the insects had seriously damaged the beams and the wooden roof. The seller did not warn them. They had fallen into the unpleasant surprise of hidden defects. The owners went to court to try to recover their investment. So it was. The court ruling allows the termination of the purchase and sale contract and orders the return of the 48,000 euros, plus the transfer tax, the notary's expenses and those of the registry. The house is for sale again, now for 79,000 euros, according to the advertisement published on the Idealista portal. The Civil Code establishes that hidden defects are defects that are not visible, nor are they easily detectable during a superficial inspection. , are unknown to the buyer at the time of the transaction and affect the use of the house, its safety, habitability and value. That is, if he had known, the buyer would not have purchased the property or would have paid less. These damages must be prior to the moment in which the sale of the house is closed. The seller acts in bad faith by hiding such essential information, either because he intends to sell as soon as possible or because he does not want to lower the price. “We have found from cases where the seller has bordered on fraud with concealment actions to others in which the defect was almost negligible and has appeared by chance,” explains Norberto José Martínez Blanco, lawyer director of Martínez-Blanco Abogados. Here are two cases in which there has been bad faith. “The seller paints the affected walls and ceilings without repairing and the damage is only known when it rains,” says Estanislao Moreno de la Santa, partner at the Vecindia law firm. Isabel García-Nieto, partner at AGN Abogados, narrates a case that ended up in court: “A semi-detached house was sold and the existence of a community septic tank in the private garden was hidden, which prevented the buyer from building a swimming pool and generated bad odors. . The cover of the well had been hidden with gravel. The list of defects that can be considered hidden defects is extensive: humidity, leaks and leaks that appear with the first rains, odors due to a poor connection of the smoke outlet, foundation problems that They cause cracks and fissures, as well as deficiencies in thermal insulation and the electrical system. The existence of an administrative resolution condemning the removal of a construction carried out without prior authorization, for example, the closure of a terrace, is also a hidden defect. There are many homes that are transferred with hidden defects. “More than 80% of sales have defects that were not known to the buyers,” says Martínez Blanco. The buyer ignores them or does not consider them as serious. “The problem arises when one of these defects affects the structure of the building or when a leak causes humidity in the walls,” says Aleix del Campo, founder of Hausum. This company, which carries out home inspections to detect hidden defects by analyzing more than 200 points, demands that home inspections before a sale be mandatory in Spain to avoid misfortunes and fraud. When the buyer is aware that he has purchased for thousands of euros a poisoned apple usually tries to reach an agreement with the seller until extrajudicial means are exhausted. “The relevant thing is to weigh the severity. Many times it is solved with an agreement to pay for the repairs,” says Moreno de la Santa. The lawyer recommends giving the seller a period of five days to proceed with the correction of the defects. If he refuses, which is quite common, the only thing left is to go to court. The problem is that the period to claim hidden defects is only six months from the signing of the sale. We have to run because “within those six months we will have to have exhausted the friendly route and file the corresponding lawsuit,” says lawyer Martínez Blanco. And he adds: “Many buyers are left unable to make a claim due to waiting too long or due to false hopes given by sellers.” Attorney García-Nieto makes a distinction here with respect to Catalonia, where there has been a specific regulation since 2018 that stipulates that «the buyer may claim lack of conformity in the purchased item that manifests itself in the two years immediately following the sale.» The affected person who requests judicial assistance has two options. One is to request the termination of the contract and recover the purchase money – including the costs of lawyers, solicitors and experts. “You may even request compensation for damages if it is proven that the seller acted in bad faith,” comments the KLJ Abogados office. The second is to lower the price in proportion to the cost that, according to the experts, the repair will entail. “Its purpose, as specified in the Supreme Court ruling of September 25, 2004, is the reestablishment of contractual equity, that is, an adjustment in the equivalence of the benefits of the contract,” they recall in Vecindia. Of course, the affected You will have to demonstrate that the damage was not visible and that the deficiency makes the property uninhabitable or that its recovery would have a great financial cost, for which it is essential to hire an expert. In addition, «the notarial certificate can be drawn up with the status of the home,» say the lawyers at KLJ, a firm that reminds us of the need to send the seller a request via burofax to interrupt the six-month period (if it is a new construction, the time to claim takes two years).
Structure damage
A clear example of serious hidden defects are those that affect the structure, the fixing of which usually has a very high cost. In Vecindia they tell the recent case of a client who bought a home in Carabanchel (Madrid). «Once he moves in, he observes damage to the structure and, after several tests, they confirm that the property was affected by aluminosis.» He is awaiting sentencing. Also in KLJ they have found apartments that were delivered apparently renovated, but «over time they hid cracks related to structural problems, detachments or aluminous cement.» But if there is a hidden defect that usually ends up in court, it is humidity. Just 10 days after purchasing an apartment in Ibiza, humidity appears that makes the house uninhabitable. “The ruling we obtained was the revocation of the purchase and sale contract and compensation for inconvenience, moving expenses, furniture…,” says Martínez Blanco. It is not easy to determine the origin of the humidity (capillarity, filtration or condensation). “The seller usually claims that they are due to condensation, attributable to the purchasing party to avoid liability,” they say in KLJ. Follow all the information from Economy and Business on Facebook and xor in our weekly newsletter