Vicios Ocultos in Spain

Last year, a Property Pulse subscriber sold an old town house in the Valencia region. Some time later, she was contacted by the estate agent, saying that the new owner had recently discovered that the beams in one of the bedrooms were rotten. He had spent money on repairs, and wanted her to share the costs, citing the law of vicios ocultos.

When the previous owner of the property contacted me , I asked experts, Mark Wilkins of The Rights Group and Campbell Ferguson of Survey Spain for their comments and advice. Here's what "vicios ocultos" means to you if you're buying or selling property in Spain.

The liability lasts up to 6 months after the sale. It appears that the seller of a property is liable even if the defects cannot be seen and they are unaware of them. However, if the buyer can be shown to have any property expertise (or perhaps if they employ a surveyor to inspect the property for them) then the buyer becomes responsible and the seller has no more liability. It appears much more relevant to buying a TV, heater, loaf of bread from a shop, but the act does not exclude property.

The seller is obliged to remedy, or compensate for, any hidden defect or flaw that the sold article could have if that defect makes it unsuitable for the use to which it is intended, if it diminishes that use, and that having the buyer known of their existence would not have bought it or would have offered a lesser price for it. If the buyer is an expert or a qualified person due to their job, occupation or profession, the seller would not be deemed as responsible for those defects or flaws either if they are evident or visible, or if they can not be seen, being that that person should have been able to recognize them easily.

The buyer could opt to annul the contract, being the seller obliged to pay the buyer all the expenses that they have incurred or to reduce an amount proportional to the price that should be ascertained by experts. Moreover if the seller knew about the hidden defects and did not warn the buyer regarding them, the buyer may claim for a compensation for the damages and harms if the buyer opts for the contract annulment.

If the article which had a hidden defect is lost for any fortuitous cause or because of the buyer's fault, the buyer might claim the price they paid for the thing, deducting any reduction in value that the article might have had when it was lost, plus damages and harms if the seller acted in bad faith. These provisions expire six months following delivery of the article sold.

As a seller, specific wording can be incorporated within a sale document which effectively excludes this liability and means that the property is being sold 'as seen'. As a buyer, watch out for this clause in the contract as a possible indication that the seller might be aware of defects which you haven't noticed.

Even though a property survey is not always required by the mortgage company, it makes sense to use a qualified surveyor before making any commitment to purchase a property.

Martin Dell, Kyero.com