Rainfall consistently brings issues related to dampness and water infiltration. It is well known that this part of Spain is designed to withstand the sun rather than heavy rain, which results in many buildings suffering from water leaks and damp problems in ceilings, walls, and even floors. These issues are often caused by water capillarity when the foundations of a building are not adequately waterproofed.
When water-related problems affect a privately owned property within a residential community, questions inevitably arise regarding who is responsible for the damages and the necessary repairs to prevent future occurrences.
It is important to consider that the roof, façade, foundations, waterproofing membranes, and the entire structural framework of a building are communal elements. The community of property owners is responsible for maintaining these in good condition to prevent water infiltration.
However, in certain cases, particularly when the building is newly constructed, communities often attempt to avoid responsibility by arguing that such construction defects should be rectified by the developer or the construction company. Consequently, they advise affected owners to pursue legal action against the individuals involved in the construction, asserting that the community bears no responsibility for the issue.
In such situations, it is essential for communities to recognize their duty to maintain communal elements in proper condition to ensure that private properties remain free from dampness and water infiltration. Therefore, the primary party responsible for addressing the issue and providing a solution is the community itself. While the community may later seek reimbursement from the responsible construction parties, it remains liable for rectifying the problem in the first instance. The affected property owner is not obligated to initiate legal proceedings against the developer or builder before claiming remedial action from the community.
In other cases, when the building is older and no legal recourse is available against the developer or those responsible for construction defects, communities sometimes attempt to shift responsibility onto the owner of the property above, alleging inadequate maintenance of a terrace or other private element.
As previously mentioned, unless the community can conclusively prove that the issue arises solely from actions taken by the owner above—such as recent construction work on a terrace that damaged the waterproofing membrane or a leaking faucet—then the responsibility for repairing the affected communal elements falls on the community. Ensuring the integrity of these elements is necessary to keep private properties dry and habitable.
It is crucial to acknowledge that communal elements do not last indefinitely and require periodic replacement or repair. For instance, a waterproofing membrane may be expected to function effectively for approximately 20 years, but after 40 years, it should come as no surprise if property owners below begin to experience damp problems. In such cases, the community is obligated to replace or repair the deteriorated elements to prevent further damage.
In some instances, prolonged negligence by the community in carrying out necessary repairs—despite repeated claims from the affected owner—has resulted in court rulings that not only mandate the community to undertake the necessary repairs but also award financial compensation to the owner. Such compensation may cover rental costs incurred due to the property becoming uninhabitable, as well as other damages suffered. Given that each case is unique, we strongly recommend seeking professional legal advice to determine the appropriate course of action.