New-build defects in Spain: the 1/3/10-year guarantees and how to claim

01What counts as a defect — and when the clock starts

Spain’s Building Act — Ley 38/1999, known as the LOE (Ley de Ordenación de la Edificación) — is the law that stands behind every new-build home. It does two things for a buyer: it defines which construction defects the developer and builder must answer for, and it fixes how long each guarantee lasts. Cosmetic snags, damp patches, failing installations and structural cracks are all covered — but by different guarantees, with very different lifespans.

The starting point for all of them is not your purchase date and not the day you got the keys. Under art. 17 LOE the guarantee windows run from the formal acceptance of the finished building — the acceptance report (acta de recepción) signed between the developer and the builder — provided it was accepted without reservations, or from the date those reservations were fixed. In practice that date is usually weeks or months before you complete your purchase, which means part of the clock may already have run before you moved in. Ask the developer for the acceptance date in writing; it defines your deadlines.

Two reassurances first. Signing the notary deed (escritura) does not waive your LOE rights — you do not “accept the defects” by completing the purchase, even if problems were visible at the walkthrough. And the snag list you make at delivery — the punch list of touch-ups (repasos) — is a practical tool, not a legal filter: a defect you missed at handover is still covered by whichever guarantee applies to it.

That said, the walkthrough matters enormously in practice. Everything you record at delivery — photos, a written snag list countersigned by the developer’s representative, meter readings, dates — becomes evidence you will not be able to reconstruct later. Treat the handover as the first page of a possible claim file, not as a formality.

02The three guarantee windows: ten years, three years, one year

Art. 17 LOE sorts every defect into one of three boxes. Which box your problem falls into decides how long you are protected — so this classification is the single most important legal question in any new-build claim.

• Ten years — structural defects. Damage caused by defects in the foundations, supports, beams, floor slabs, load-bearing walls or other structural elements that directly compromise the building’s mechanical resistance and stability. This is the heavyweight guarantee: ten years, and it is backed by mandatory insurance (the seguro decenal — more below).
• Three years — habitability defects. Defects in construction elements or installations that make the home fail the LOE’s habitability requirements — hygiene, health and protection of the environment. In real life this is the busiest category: persistent damp and leaks, failed thermal or acoustic insulation, defective plumbing, electrical or ventilation installations.
• One year — finishing defects. Flaws in finishing and completion work (elementos de terminación o acabado): cracked tiles, badly hung doors, sloppy paintwork, misaligned carpentry. For this first year the builder (constructor) answers for the finish quality of the work.

Note what the windows are: periods during which the damage must appear. A structural crack that shows up in year nine is covered; the same crack in year eleven is not. That is why the acceptance date from the previous section matters — count all three windows from it, and keep the arithmetic in your claim file.

03The two-year trap: the clock inside the clock

Here is where most claims die. The 1/3/10-year windows tell you which defects are covered — but art. 18 LOE adds a second deadline: the action to claim for the damage prescribes two years from the date the damage appears. Not two years from delivery. Not “any time within the ten years”. Two years from the moment your specific damage showed up, as long as it appeared inside its guarantee window.

The trap is psychological as much as legal. A crack appears in year two; the developer’s customer service says “we’ll look at it after summer”; a year of polite emails goes by; then a technician visits and promises a repair that never happens. By the time the owner gets angry enough to act, the two years have quietly run out — while the ten-year guarantee was still, in theory, alive. Waiting politely is the single most expensive mistake in new-build claims.

The practical rules that follow from this are simple. Document the defect the day you notice it, with dated photos — that date starts the clock, and it also proves the damage appeared inside the window. Move the claim onto paper early: a formal written claim by certified letter (burofax) is standard practice and gives you proof of what you demanded and when. And if the developer strings you along with inspection visits and promises, keep escalating in writing rather than restarting the conversation by phone each time.

One more nuance from the same article: this two-year period governs the LOE damages action specifically — claims you may have under your purchase contract subsist separately. In plain terms, missing the LOE clock does not always mean the end of the road, but the LOE action is the strongest and most specific tool you have. Do not plan to lose it.

04The insurance layer: claim the policy, not just the developer

The LOE did something clever that many owners never use: for housing, it made the guarantees insurable — and partly mandatory to insure. Art. 19 LOE stacks three layers of financial cover behind the three windows, so that your claim does not depend entirely on the developer still existing and still answering the phone.

• Year one — the builder’s cover. The builder’s liability for finishing defects must be secured either by an insurance policy or by a retention of 5% of the build cost held back by the developer (promotor) — a fund that exists precisely to pay for first-year fixes.
• Years one to three — the developer’s habitability insurance. The developer must carry insurance covering habitability defects for three years.
• Years one to ten — the ten-year structural cover. Structural damage must be covered for ten years by material-damage insurance, surety insurance or a financial guarantee — the famous ten-year structural insurance (seguro decenal). For a structural problem, this policy — not the developer’s goodwill — is what ultimately pays.

The practical consequence: when you claim a serious defect, claim against the insurer as well as the developer. Ask the developer in writing for the details of the seguro decenal and any other policies covering the building — the policy data normally appears in the purchase documentation. If the developer has been dissolved or is insolvent (common enough years after delivery), the structural policy survives; owners and homeowners’ associations claim against the insurance company directly. A claim letter that goes only to a dead company achieves nothing; the same letter copied to the insurer starts a file that someone is contractually obliged to answer.

05Buying off-plan: your advance payments are guaranteed too

A different risk arrives before the building does: you pay instalments for a home that only exists on paper. Spanish law treats this seriously. Under the LOE’s first additional provision (the regime in force since 1 January 2016), every advance payment (cantidades anticipadas) a buyer makes for a home under construction must be guaranteed — either by surety insurance (seguro de caución) or by a joint bank guarantee (aval) issued by a credit institution. The guarantee covers the amounts you paid plus legal interest, and each buyer gets their own individual policy or guarantee.

The law adds a second safeguard: your instalments must be paid into a dedicated separate account (cuenta especial), kept apart from the developer’s other funds — the developer cannot legally mix your advance payments with its general cash flow.

What this means in practice, before you pay anything: ask for the guarantee document (the individual aval or insurance certificate in your name) and for the details of the special account, and pay only by transfer to that account. A developer that shrugs at these questions is telling you something. Keep every payment receipt and the guarantee papers together — they are literally the documents that get your money back.

If the build stalls or the delivery date passes with no home in sight, the guarantee is your exit: the route is a formal written demand to the developer, followed by a claim on the guarantor — the bank that issued the aval or the insurer behind the seguro de caución — for the amounts paid plus legal interest. Move in writing, keep the deadlines documented, and do not accept vague reassurances as a substitute for a new, signed delivery date.

06How to claim, step by step

A new-build claim is won on paper, in order. The sequence below is standard practice — each step creates the evidence the next one needs:

• 1. Document everything, with dates. Photos and video of every defect, dated; the acceptance date (acta de recepción); your snag list from handover; every email and visit since. For anything beyond cosmetic snags, commission an independent technical report from an architect or building surveyor — it classifies each defect into the right guarantee window and is the backbone of any serious claim.
• 2. Send a formal claim by certified letter (burofax) to the developer. List the defects, attach or reference the technical report, state which LOE guarantee covers each item, and demand repair within a stated period. The burofax gives you legal proof of content and delivery — a WhatsApp thread with the site manager does not.
• 3. Copy the insurer. For structural damage, notify the seguro decenal insurer directly and in parallel; for habitability and first-year defects, ask in writing which policy or retention covers them. Insurers run on files and deadlines — open the file yourself instead of waiting for the developer to do it.
• 4. Route common-element defects through the community. Defects in the structure, façade, roof, garage or shared installations belong to the homeowners’ association (comunidad de propietarios) — the community claims them for the whole building. Raise yours at the meeting and get it into the minutes; a community claim backed by one technical report is stronger and cheaper than twenty individual ones.
• 5. Use your consumer status. The developer sold you the home as a business, so general consumer-protection law applies alongside the LOE. That matters for how complaints must be handled and gives you an extra route — a complaint through consumer channels — that costs little and adds pressure.
• 6. Court, as the last step — but before the clock runs out. If the deadline in your burofax passes without repair, the claim goes to court, resting on the technical report and the paper trail you built in steps 1–3. Remember the two-year action period from the moment the damage appeared: if it is getting close, see a litigator before it expires — a claim filed in time with modest evidence beats a perfect file filed too late.