Buying a home is one of the most important decisions in anyone's life, and it's often one of their most significant investments. And sometimes, when you buy and want to renovate, you find unpleasant surprises, such as aluminosis.
Aluminosis or aluminous cement is one of the hidden defects by definition in our legal system. The idea is that they are not detectable with the naked eye. In order to claim, hidden defects must significantly affect the functionality, safety, or value of the property. Aluminosis is one of the most serious hidden defects that can appear in homes. This defect is caused by the use of aluminous cement in construction, very popular in the 50s and 60s, due to its speed of drying. This material, over time and exposure to moisture, reacts chemically, causing the decomposition of the concrete and a progressive loss of structural strength. In fact, according to the Supreme Court, the simple presence of aluminous cement in the structure of the building is already considered a hidden defect, even if it has not yet developed the pathology of aluminosis, due to the risk it poses.
This type of defect is not easily detected by a common buyer, since aluminosis often does not manifest itself until after several years, which generates great problems for owners who discover the defect after the purchase.
Legal framework: Catalan and Spanish Civil Code. Remedies and deadlines.
If you have acquired a property and discover that it has aluminosis, both Catalan and Spanish legislation establish a clear framework of protection for buyers. Both regulations say that the buyer has the right to claim against the seller for hidden defects if, after the purchase, he discovers a defect that makes the property not conform to what was agreed or decreases its value. Specifically, 621-37 of the CCCat, offers several possibilities, at the buyer's choice, including:
- Terminate the contract: The buyer can choose to terminate the purchase contract, which will involve the return of the property and the refund of the price paid.
- Reduce the price: Another option is to request a proportional reduction in the price based on the cost of repairing the hidden defect, which is also called "actio cuanti minoris".
To decide what is best for you, you have to take into account aspects such as the existence of mortgage charges or the start of renovation works. In this sense, returning a flat with a mortgage charge can lead to the early termination of the mortgage loan, which can be very detrimental to the buyer. Or if the renovation works are very advanced, it may no longer be worth returning the property in exchange for the price.
One of the important differences between the Catalan and Spanish regimes is the deadline. While in Catalonia it can be claimed within 3 years of purchase, the Spanish Civil Code sets a claim period of only six months. It is therefore very important to determine the applicable legislation in order to know whether action should be taken more or less quickly. In any case, it is crucial not to wait too long, as the right to claim expires after the deadline has elapsed.
What steps to take if you discover a hidden vice such as aluminosis?
If after the purchase of your home you discover that you have aluminosis, it is essential to take the following steps to protect your rights and claim:
- STEP 1: Confirm that the defect actually exists. In the event of the presence of aluminous cement, it will not always be visible, so you will need the help of a construction expert who can carry out a detailed technical inspection. An expert report is essential to confirm the presence of the hidden defect and assess the seriousness of the damage to the structure of the property.
- STEP 2: Consult the documentation relating to the Minutes of the Community of Owners, Technical Inspection Report, or others that you have at your disposal to confirm that it does not appear in the documentation provided before or during the sale.
- STEP 3: Confirm with a lawyer that, in the reservation contract, deposit or in the deed of sale, the waiver of any claim for hidden defects, lack of conformity, or you have declared to know "the existing defects" in the property, has not been agreed. You may have had it in front of you, and you haven't seen it.
- STEP 4: Check that you are within the deadline to claim (3 years in Catalonia, 6 months in the rest of Spain).
- STEP 5: Contact your trusted lawyer to file the lawsuit. It is likely that they will first advise you to make an out-of-court claim, and if you do not receive a response, they will recommend that you file a claim to request the return of the property in exchange for a refund of the price or a reduction in the amount paid while retaining ownership of the property. If you opt for the latter, together with the lawsuit you must provide an expert report on the value of the property at the time of purchase if the presence of aluminous cement had been known.
By what percentage can the purchase price be reduced due to the presence of aluminosis?
Case law usually sets the reduction of the purchase price due to the existence of hidden defects between 10%-20%, even reaching 30% of the value of the home, depending on the severity of the defect and the cost of repair. But it is important to note that, if an action for hidden defects is brought, what is requested is not compensation for damages that can be equated to the value of reparation of the defect, but a rebalancing of the price. In this sense, it may be that the repair of aluminosis has a certain cost, but that its impact on the market value of the property is much greater. Because in the end, no one or almost no one wants to buy a flat built with aluminous cement.
Conclusion
If you have bought a home and discover that it has aluminous cement, or has already developed the pathology of aluminosis, all is not lost. Both state and regional regulations give you several options to assert your rights, such as terminating the contract or asking for a price reduction. With a three-year deadline in Catalonia and 6 months in Spain to file a claim, it's important to act quickly and make sure you have all the necessary documentation to support your case. Having the help of a specialized law firm is key to protecting your interests and obtaining fair compensation for the hidden defects that affect your home. Do not hesitate to advise you to ensure that your rights are respected and that you can obtain the best solution in your case.
Por Nadia Milesi - Litigatión Department Lawyer
