We have aluminosis. What should we do?
Wednesday, November 20, 2024
Nadia Milesi
Buying a home is one of the most important decisions in anyone’s life, and it is usually one of their most significant investments. And sometimes, when someone buys and wants to renovate, they come across unpleasant surprises, such as aluminosis.
Aluminosis, or aluminous cement, is by definition one of the hidden defects in our legal system. These are defects that cannot be detected at first sight. To be claimed, 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 arises from the use of aluminous cement in construction, which was very popular in the 1950s and 1960s due to its fast drying time. Over time and with exposure to moisture, this material undergoes a chemical reaction that causes the concrete to decompose and progressively lose structural strength. In fact, according to the Supreme Court, the mere presence of aluminous cement in the building’s structure is already considered a hidden defect, even if the pathology of aluminosis has not yet developed, due to the risk it poses.
This type of defect is not easily detectable by an ordinary buyer, since aluminosis often does not manifest until several years later, creating major problems for property owners who discover the defect after the purchase.
Legal framework: Catalan and Spanish Civil Code. Remedies and deadlines.
If you have purchased a property and discover that it has aluminosis, both Catalan and Spanish legislation establish a clear framework of protection for buyers. Both regulations state that the buyer has the right to claim against the seller for hidden defects if, after the purchase, a defect is discovered that renders the property non-compliant with what was agreed or diminishes its value. Specifically, Article 621-37 of the Catalan Civil Code (CCCat) offers several options, at the buyer’s choice, including:
- Terminate the contract: The buyer may choose to rescind the sales contract, which would involve returning the property and receiving a refund of the price paid.
- Price reduction: Another option is to request a proportional reduction of the price based on the cost of repairing the hidden defect, which is also known as actio quanti minoris.
To decide which option is more convenient, factors such as the existence of mortgage charges or the start of renovation works must be taken into account. In this regard, returning a property with a mortgage charge may lead to the early termination of the mortgage loan, which can be very detrimental to the buyer. Likewise, if renovation works are already well advanced, it may no longer be worthwhile to return the property in exchange for the purchase price.
One of the key differences between the Catalan and Spanish systems is the time limit. While in Catalonia a claim can be filed within three years following the purchase, the Spanish Civil Code sets a claim period of only six months. For this reason, it is very important to determine the applicable legislation in order to know whether to act more or less quickly. In any case, it is crucial not to wait too long, since the right to claim expires once the deadline has passed.
What steps should you take if you discover a hidden defect such as aluminosis?
If after purchasing your home you discover that it has aluminosis, it is essential to follow the steps below to protect your rights and file a claim:
STEP 1
Confirm that the defect truly exists. In the case 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 to assess the severity of the damage to the property’s structure.
STEP 2
Check the documentation related to the Homeowners’ Association minutes, Technical Inspection Report, or any other documents available to confirm that the defect was not recorded in the documentation provided before or during the purchase.
STEP 3
Confirm with a lawyer that neither the reservation contract, the deposit agreement, nor the deed of sale includes a waiver of any claim for hidden defects or lack of conformity, or a declaration that you were aware of “the existing defects” in the property. It is possible that such a clause was present, and you may not have noticed it.
STEP 4
Check that you are still within the time limit to file a claim (3 years in Catalonia, 6 months in the rest of Spain).
STEP 5
Contact your trusted lawyer to file a legal claim. It is likely that they will first advise you to make an out-of-court claim, and if no response is received, recommend filing a lawsuit to request either the return of the property in exchange for a refund of the price or a reduction of the amount paid while keeping ownership of the property. If you choose the latter, you will need to provide an expert report along with the claim regarding the value of the property at the time of purchase had the presence of aluminous cement been known.
By how much can the purchase price be reduced due to the presence of aluminosis?
Case law usually sets the reduction of the purchase price for the existence of hidden defects between 10% and 20%, and in some cases up to 30% of the property’s value, depending on the severity of the defect and the cost of repair. However, it is important to emphasize that when bringing an action for hidden defects, what is sought is not compensation for damages equivalent to the cost of repair, but rather a rebalancing of the price. In this sense, the repair of aluminosis may have a specific cost, but its impact on the market value of the property may be much greater. In the end, hardly anyone wants to buy a flat built with aluminous cement.
The right steps
If you have purchased a property and discover that it contains aluminous cement or has already developed aluminosis, all is not lost. Both state and regional regulations grant you several options to assert your rights, such as terminating the contract or requesting a price reduction. With a period of three years in Catalonia and six months in Spain to file a claim, it is important to act quickly and ensure you have all the necessary documentation to support your case. Having the support of a law firm specialized in this area is key to protecting your interests and obtaining fair compensation for the hidden defects affecting your home. Do not hesitate to seek legal advice to ensure your rights are respected and to achieve the best possible solution in your case.
