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Guarantees when purchasing a property in a new development

When clients buy a property from the developer, they benefit from a new home totally adapted to their needs, however, sometimes as times goes by defects may appear as a result of the settling of the building structure.

Responsabilities and guarantees by the developer and all agents

In order for buyers to be protected against future defects, the Spanish law 38/1999 regarding Building Ordinance dated 5th November details responsibilities and guarantees that have to be borne by the developer and all agents that intervene in the construction process.

Notwithstanding the responsibilities agreed in the contract, all private people and companies involved in the building works are responsible before the owners for the damages and during the periods of time stated below:

10-year guarantee

For damages resulting from vices or defects affecting the structural safety of the building, i.e. foundations, supports, beams, floor slabs, load-bearing walls or other structural elements that directly compromise the mechanical strength and stability of the building.

3-year guarantee

For vices or defects affecting the habitability, i.e. humidity, cracks, bad odors, noise (due to bad acoustic insulation) or air filtration.

1-year guarantee

For damages resulting from deficient workmanship, which are the so-called “finishing defects”, i.e. loose tiles, doors that do not close properly, leakings, parquet defects, blinds or paintwork.

It is important to bear in mind two periods, the ones stated above, (regarding when the defects become tangible) and another period of two years in which all damages shall be claimed. For example, if a client buys a property and 8 months after completion, they notice that parquet is loose and doors cannot close properly, they can claim the developer as this finish defect show up within the first year of guarantee but has to be claimed within two years from the date the damage became apparent.

This civil responsibility will be joint whenever the cause of the material damage cannot be individualized or the degree of each agent in the damage caused cannot be specified.
At any event, the developer will be jointly and severally liable with the other agents that intervene in the construction for the material damages in the building caused by construction faults or defects.

How are these guaranties externalized?

Either private people or companies promoting housing construction, they have to guarantee from the moment they get the building license all the amounts they get from the buyers and their interests. In order to do so, they shall sign an insurance policy for the said amount so that in case the development cannot be finished or even started the amounts are properly reimbursed to the buyers.

Separately, all the amounts received by the developer as deposit or previous payments shall be transferred to a special and separate account opened to that end.

Once the first occupation license is issued by the town hall and the and the delivery of the dwelling to the purchaser has been accredited by the developer, the guarantees granted by the insurance company or guarantor will be cancelled.

Agents In the purchase of a new development

Firstly, it is valuable to identify all the agents that will have a role in the purchase of a new development:


It can be any natural or legal person who decides, promotes, programmes, and finances a building project. It is the seller of the properties.


Who manufactures the building. Developer and builder can sometimes be the same entity.

Sales company for the developer

Is in charge of marketing and selling the homes in the project.

Buyer’s agent

Provides buyers to the developer through cooperation agreements.


Represents the buyer in the transaction, including the services to be evidenced by a breakdown of expenses, with the task of transferring ownership to the buyer.

Community of owners

A financial association consisting of the owners of the individual units/flats in the project. At the annual meeting, the association decides on the budget and other matters related to the association.

Administrator of the community of owners

Appointed by the association to run the business, including preparing the budget, handling accounting and tax returns, procuring operating suppliers and representing the association to the developer. Note that the association’s liability does NOT extend to any individual action by the buyer against the builder for damages to the owner’s individual apartment. However, the administrator can appropriately raise the issue of snagging list etc with the builder as they do have dialogue otherwise is my personal opinion.

The builder is required by law to establish a community of owners and thus instruct an administrator to propose an initial budget. Note however that it is the association at the annual meeting that determines the election of the administrator. The powers of the President are set out in law and in the Association’s statutes.

President and Vice-President

Elected by the Association to represent and sign for the Association on certain matters and to have ongoing dialogue with the Administrator. Can be compared to the board of directors of a Swedish housing association.


A person hired by the buyer to carry out an inspection of the property. The surveyor must send a copy of the report to the builder/sales company and one to their agent.

If you are interested in purchasing a property in a new development in Marbella, do not hesitate to contact us. Our firm specialises in the real estate field, and we will guide you through the whole purchasing process ensuring the purchase is 100% safe.

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Gemma Fuentes Romero