It is clear that from 2015 Spain started a recover from the crisis´s construction and many new buildings have been erected again.
This new buildings have their communities set up and they will have to comply with its maintenance responsibilities, and now we will have to check if they are prepared, for instance, to the new rains we will hopefully have in future.
In case it appears damp in the apartments, Spanish law regulates who would be responsible, how to claim and when, despite we should say that this regulation is neither clear nor fair.
Some points should be clarified:
I.- The community is responsible to keep the building in good state, so, at first instance, the community would be the one to repair all the damages in the communal elements that are affecting to the private property. The community may have the right to claim this reparation from the developer or the professionals who did the construction, but this does not mean that the owner can not take the community to Court to force the community to repair the damages and defects that are causing damp in his private property.
The LPH says in its Art. 10.1,a) that the community will be responsible of doing all the “ works or actions as may be necessary for the adequate maintenance and fulfillment of the duty of upkeep of the building and its common services and facilities, including, in any case, those needed to satisfy the basic requirements of safety, habitability and …”
It is clear that keeping a flat free of damp and likings is one of the principal requirements of habitability that a community can comply.
This means that an owner is not obliged to sue personally to the developer or the professional who did the works in communal elements. No matter if the defects in the communal elements only affects this owner. The community would be obliged to resolve the problem in any way, with the possibility to reclaim, later or at the same time, to the developer or the professionals. In most of cases, for new constructions, it is worth to wait for the developer answer taking into consideration the huge amount the community have sometimes to pay for the repairs.
II.- There are many different community insurance policies, but as far as I know, none of them cover the building defects but only the public liability, so if the owner suffers in his flat some damp patches on the walls or any other damages as a consequence of an inappropriate construction of the facade, the roof or any other communal element, the community insurance company will possibly pay for the damages inside the house but will not repair the building defects.
III.- There is a great misunderstanding about the period of guarantee for the construction. The 10 year guarantee, and its insurance policy, is just to cover building defects affecting the foundation, brackets, beams, forged, load-bearing walls or other structural elements, and that directly engage the mechanical strength and stability of the building. All the rest of the defects, which in fact are the most common ones will have to appear within a period of 1 or 3 years so that the professionals involved in the construction could be responsible. For building defects that causes damp or likings to private or communal elements, after this short period of 3 years from the time the building was officially finished, the professionals will not have any responsibility, what I think is amazing.
IV.- The developer will respond for all the work done by the professionals involved in the building so the community would be free to sue just the professionals, the developer, or all of them.
V.- The developer could have a direct contractual responsibilities when they have breach the selling agreement and the house transferred to the owner has not got the quality should have. The legal period to claim for this breach of contract would be longer than the legal period for building defects, but it would be necessary to prove that these defects could be considered a breach of contract. I hope these clarifications will help you to understand this difficult subject. Anyway, as always, get legal support.