Construction Law International – March 2022 – Country Updates: Spain
Recent Supreme Court judgment on liability of a signatory of the final work certificate
Javier González Guimaraes-da Silva
Spanish Building Regulations Act
In Spain, the execution of any construction project (eg, dwelling, large facility, other buildings) is governed by the legal provisions of the Law 38/1999 of 5 November on building regulations (Ley de Ordenación de la Edificación) (LOE). The LOE establishes, among other matters, a unified legal framework of the main functions, duties and liabilities of the building agents participating in any construction project.
The main criteria used by Spanish lawmakers to determine the roles of each participant in the building process is, in general, the professional qualifications and licences required to perform the relevant activities in connection with the execution of the works. Regardless of any agreement between the parties, the LOE establishes the legal requirements in order to be appointed and, therefore to be able to act as a designer (proyectista), head of management of works or head of works (director de obra), head of execution of works (director de ejecución), among others.
To act as a designer in a construction project in Spain, the LOE requires that the person must hold either a graduate degree in architecture or civil engineering (depending on the nature of the building, whether housing or other purposes such as factory, harbour, etc), as well as being registered in the relevant Official College of Architects or Engineers (eg, Colegio Oficial de Arquitectos de Madrid). The same applies for being appointed as the Head of Execution of Works, which includes functions such as quantity surveying and supervising the quality of works. To be eligible to act as the Head of Execution of Works, the person must hold either a higher or technical degree in architecture or a degree in civil or building engineering, and be a member of their respective Official College.
The LOE also establishes a common set of rules protecting owners and prospective buyers in connection with material damage caused to buildings, even if there is no contract signed with the designer, or head of execution of works. For this purpose, the LOE provides various warranty periods in favour of owners and purchasers running from the date of the certificate of acceptance to enable the owner or purchasers to take action against agents for repair or compensation for material damage – depending on the building element affected, it may cover between one and ten years.
The framework under the LOE is independent from the contractual obligations and liabilities of each agent in their agreement with the employer or owner. Under Spanish law, a claim can be filed seeking repair or damages for specific defects and flaws based on the rights and warranties under the LOE (legal liability) as well as the contractual framework agreed between the parties (contractual liability). This is set out in current Spanish case law (judgment of the Civil Chamber of the Spanish Supreme Court 529/2020 dated 15 October 2020).
Final work certificates and the signatories
As is common in most countries, construction works end when a building has been properly built and complies with all the conditions, standards and features required in the licensed project prepared by the designer, the building licences and permits, and any other instructions from the public authorities.
In Spain, the completion of any building works is usually formalised by a ‘certificate of acceptance’ (acta de recepción de las obras) that the owner and/or employer signs with the general contractor. Through this certificate, the general contractor delivers the works and the owner accepts their receipt, either as a result of the building having been totally and properly finalised, or because only minor defects or flaws remain. That certificate of acceptance may also be signed by the head of works or the head of execution of works. The head of works or the head of execution of work’s participation and, therefore their signatures (although common in practice), are not mandatory under article 6.2 LOE.
The reason is that both the head of works and head of execution of works must, pursuant to articles 12.3(e) and 13.2(e) LOE, issue a specific legal document called a ‘final work certificate’ (certificado final de obra) (CFO).
According to the Spanish Technical Code for Building Construction, the CFO may only be issued if: the head of works considers that the building has been carried out under their supervision in accordance with the licensed project and the rest of technical requirements and, thus, is ready for proper use; and the head of execution of works understands that they have supervised the material execution of the works and have, among others, controlled the quality of what has been built in accordance with the technical documentation and the applicable rules for ensuring proper construction.
This CFO will be attached to the certificate of acceptance under article 6.4 LOE.
Lastly, pursuant to article 17.7 LOE, the head of works and the head of execution of works are responsible for the veracity and accuracy of any CFO they sign. Their liability cannot be limited or excluded even if the works were initially managed, supervised and controlled by other architects and engineers. To the extent that both have signed and certified the works pursuant to article 17.7, they will be responsible in relation to the owners and/or employers for any defects resulting from a lack of veracity or accuracy.
Supreme Court judgment of 15 April 2021
The judgment of the Supreme Court arose from a claim brought by an owners’ community (buyers and current owners) against the various agents (among others, the head of execution of works) involved in the works. The plaintiff sought the repair of various defects, pathologies and flaws in connection with the building.
The issue submitted to the Supreme Court focused exclusively on interpreting the functions and liabilities of the head of execution of works, when he signed the CFO under article 17.7 LOE.
Here, two technical architects were appointed as the head of execution of works during the building process. The first carried out 94.97 per cent of the units of the works but died before finalising them and signing the CFO. The second (the defendant), who replaced the former and only carried out 5.03 per cent of the works, consisting of the execution of finishings and final touches of the building.
However, the defendant signed the CFO for all the works of the building, and therefore undertook the responsibility in connection with the veracity and accuracy of the same under the LOE.
The first instance court that initially heard the case held that the defendant was fully liable for any defects, pathologies or flaws in connection with the execution of the works under article 17.7 LOE. This decision was based on the principle that the defendant was required to verify that there were no defects, pathologies or flaws in the works when he signed the CFO.
The Court of Appeal overturned the first instance court in its judgment handed down on 12 January 2018. The Court of Appeal decided that the fact that the head of execution of works had signed the CFO should not automatically trigger liability regarding such defects, pathologies and flaws.
The Supreme Court rejected the cassation appeal and confirmed the second instance decision. It held that the head of execution of works is responsible for the veracity and accuracy of the CFO. The Supreme Court nevertheless stated that the liability of the head of execution of works is limited to the scope of the functions and duties of that agent pursuant to the LOE. Consequently, if they detect any defect or deviation in connection with the fulfilment of their instructions by the general contractor and, despite that defect or deviation, the head of execution signs the CFO, they will be liable for its lack of veracity and accuracy.
The Supreme Court upheld the Court of Appeal’s decision and held that, although the technical architect had signed the CFO, he had only supervised and controlled the execution of the 5.03 per cent of the works, and therefore his involvement was limited. Likewise, the Supreme Court found that there was no evidence regarding the participation of the head of execution of works in the supervision and control of the units with defects and pathologies, having limited his supervision to the finishings and final touches of the building. Furthermore, the defects were neither detectable nor patent defects when the CFO was signed. For all these reasons, the Supreme Court rejected the cassation appeal filed by the owners’ community.
Javier González Guimaraes-da Silva is counsel at Uría Menéndez in Madrid. He may be contacted at firstname.lastname@example.org.