LEGAL EYES
Michael Walsh

Q. We are a community of new owners having settled in over the last 18-months. Already floor tiles have cracked, a garage floor has split and similar problems have occurred. We have sent letters to the builders who claim repairs are not their responsibility. Can this be true? How do we make a claim and do we have to hire a solicitor?

A. The Building Act obliges the builder or developer to rectify material damage caused by defects in construction that occur within a year. Serious failings such as foundation or structural problems are also their responsibility, and the architects involved in the construction.
It is important to file a claim within the legal terms, which are two years for defects and ten years for serious failings. 
The usual procedure is for the president or administrator of the society to send a recorded mail request that the problems be addressed to avoid a claim being made at the Courts of Justice.
A meeting of the owners is called to grant the president power to issue a POA (power of attorney) to the community?s solicitor. As the fees are the responsibility of the owners it is as well to draw up a written budget. The costs will be recoverable if the claims are met by the court. It is usually a necessity to provide an architect?s report listing the defects.

Q. In May 2007 my sister and I bought a property on a rural estate. The title deeds of ownership were signed before the public notary and the deeds were later inscribed to the Land Registry.
A few months ago we received notification from the Land Registry informing us that our property had been adjudicated in a public auction to a credit and financial firm, and we had been removed from the land records as owners.
We were informed that this had happened following court proceedings against the former owner of the rustic land due to his being in debt to the credit and financial firm. We went to their offices to see if we could reach a settlement but were told that their instructions were to re-sell for more than we had originally paid. We are desperate. Is there anything we can do?

A. Within the deeds and private agreement is a declaration by the vendor that the property is free of any charge. There is also a clause in which you and your sister relinquish Land Registry information though the notary warns about its prevalence. In spite of this you signed the deeds unaware that there were charges against the property.
The private agreement you signed is invalid because it involved fraud and was signed before a notary. As such you assume the consequences. This is the reason why it is wise to engage a solicitor to manage a conveyance.
In some cases a solution can be reached through a settlement with the creditors. In a case like this you would be well advised to take legal action against the vendor for fraud but unfortunately you cannot recover the property without the creditor?s agreement.

For further information or advice contact Walsh Legal Partners on 672 834 622 or e-mail quite_write@yahoo.co.uk for a telephone or e-mail response.

I am interested in the subject you address in the first question, concerning problems with the construction company and perhaps the architect. We have had legal issues concerning the construction of our complex (now 7 years old) and the case is still proceeding. The builders have refused to make any repairs, but our community has also refused to do any maintenance (against many of the owners’ wishes) until the court case is decided, which we are always told is soon, even though the administrator/lawyer resigned or possibly was sacked last year. Is it not a right we have as owners to demand that maintenance is upheld? And is there not a legal method (notary witness of the circumstances for example) of stipulating the poor state of the building then having repairs done to eventually send the bill to the construction company if our part is upheld in the court? The owners have no idea of the content of the case against the construction company and is told now by the new administrator that there should be a ruling soon. We have asked for a meeting but have been refused. We now intend to petition for an information meeting by haviing at least 25% of the owners request a meeting. Do you have any suggestions and/or advice for us?

Thanks! I am afraid that these sort of legal issues can’t be dealt with by advice alone; the entire matter, sadly, needs to be dealt with by a legal firm. If you’re in the Costa Blanca - well actually, Sosta del Sol too, I can recommend such a firm. Good luck and best wishes. Michael (Walsh)

Thank you very much. I will let you know if we need a lawyer. I have no idea if there is still a lawyer on the job, and if so, who. I have just heard a rumour that the construction company was declared bankrupt last year, so apparently the community is hoping to gain something from the sub-contractors. Sounds like a long shot. I think the promotor is still solvent, so this would be the one to sue, I assume. Is that correct?