The LOE and Construction Defects
Regarding our 1978 Constitution, it should be pointed out that art. 33 EC recognises private property as a citizen's right, delimiting its social function and its content, in accordance with the law.
Art. 45 CE recognises the right to enjoy a suitable environment for the development of the person, as well as the duty to conserve it, and the public authorities must protect it, which is important not only when legislating, but also when permitting, by means of licences, the way of building, and the legislator must establish administrative or penal sanctions, as well as the obligation to repair the damage caused, for those who violate the above.
According to art. 46 CE the public authorities shall guarantee the conservation and promote the enrichment of the historical, cultural and artistic heritage of the peoples of Spain and of the assets that make it up, which is very important in certain building projects, without the need to talk about artistic architecture, by the way. Furthermore, in art. 47 CE and as a guiding principle of social and economic policy, with less protection, it is therefore stated that all Spaniards have the right to enjoy decent and adequate housing, that the public authorities will promote the necessary conditions and establish the relevant rules to make this right effective, regulating the use of land in accordance with the general interest to prevent speculation and that the community will participate in the capital gains generated by the urban development actions of public bodies.
Art. 49 CE establishes that the public authorities shall carry out a policy of foresight, treatment, rehabilitation and integration of the physically, sensorial and mentally handicapped, which shall mark the building in terms of the provisions for physically handicapped users to move around. Along the same lines, Art. 50 EC requires the public authorities to promote the welfare of senior citizens by means of a system of social services that addresses their specific housing problems, among other aspects. The content of Art. 51 EC should also be highlighted in this area, given that the purchaser or user of housing is still the final consumer of this product, if that is what it can be called, and thus the public authorities will guarantee the defence of consumers and users, protecting their legitimate economic interests by means of effective procedures, as well as promoting their information and education, encouraging and hearing their organisations. Furthermore, art. 129 EC is relevant with regard to the promotion and appropriate legislation of co-operative societies. They shall also establish the means to facilitate workers' access to ownership of the means of production. For its part, Royal Decree 314/2006, of 17 March, which approves the Technical Building Code, regulates the basic quality requirements that buildings, including their installations, must meet in order to satisfy the basic requirements of safety and habitability, in development of the provisions of add. disp. 2ª Ley 38/1999, de 5 de noviembre, de Ordenación de la Edificación.
The following regulations must also be taken into account:
- Royal Legislative Decree 1/2007, of 16 November, approving the revised text of the General Law for the Defence of Consumers and Users and other complementary laws.
- Royal Decree 1027/2007, of 20 July, approving the Regulation on Thermal Installations in Buildings.
- Law 38/1999, of 5 November 1999, on Building Regulations.
- Royal Legislative Decree 2/2008, of 20 June, approving the revised text of the Land Law.
- Royal Decree 2187/1978, of 23 June, approving the Regulation on Urban Planning Discipline for the development and application of the Law on Land Regime and Urban Planning.
- Law 39/2002, of 28 October, on the transposition into Spanish law of various Community directives on the protection of the interests of consumers and users.
- Law 57/1968 of 27 July 1968 on advance payments in the construction and sale of dwellings.
- Order of 29 November 1968 on the insurance of advance payments for housing.
- Royal Decree 515/1989, of 21 April 1989, on the Protection of Consumers with regard to the information to be provided in the Sale and Lease of Housing.
- Law 12/1986, of 1 April 1986, on the regulation of the Professional Attributions of Architects and Technical Engineers.
- Decree 265/1971, of 19 February, regulating the professional powers and competences of Technical Architects.
- Logically, building matters are also regulated by general rules such as the CC; the CCom; Law 49/1960, of 21 July, on Horizontal Property; Law 29/1994, of 24 November, on Urban Leases; the Decree of 8 February 1946 approving the new official wording of the Mortgage Law; the Decree of 14 February 1947 approving the Mortgage Regulations; and the CP, not to mention procedural rules. It goes without saying that Royal Legislative Decree 1/2010, of 2 July, approving the revised text of the Law on Capital Companies, and Law 27/1999, of 16 July, on Cooperatives, affect this matter, especially in terms of promoters. Likewise, Law 34/1988, of 11 November 1988, General Advertising Law; the Insurance Contracts Law and complementary regulations; Royal Legislative Decree 2/2004, of 5 March 2004, approving the revised text of the Law Regulating Local Treasuries; tax regulations (VAT, Personal Income Tax, Wealth, etc.), etc.
News on construction defects
In a recent case involving the exchange of a plot of land in exchange for building work, the Supreme Court has declared that the delay in the delivery of the...