Understanding Construction Defects and Mortgage Responsibilities
Understanding Construction Defects and Responsibilities
In order to answer this question, we must refer to Arts. CC SS 1588 and the law on building 38/1999. I understand the flaws that make declaring the ruin of the house and their eviction as construction defects, or what some authors refer to as vices ruinógenos, which I believe does not mean the same thing. Therefore, I shall address ruin just as construction defects.
The Law 38/1999, which entered into force on May 5, 2000, applies to all homes built approximately at its entry into force. I understand that it does not matter if the home is purchased for the first time from the promoter or acquired in “second hand” from another buyer, as long as it was built after the delivery date when the scheme was in force for accountability.
The parties responsible for the construction of the building include the developer, architect, and builder. They are accountable to third-party purchasers and owners of buildings for damages caused by buildings constructed after the entry into force of Law 38/1999.
Ana could invoke the responsibility of the home builder for 10 years based on Article 17.1. In this case, the damage to the property acquired by Ana is included in Art. 3.1b) of Law 38/1999, as well as in the second additional provision, which contains the obligation to guarantee post-material damage caused by defects and construction flaws. Therefore, the clause in the contract signed cannot contravene the provisions of the law. Article 19 of the Act also establishes the responsibility of the developer.
I also deduce that Ana can always request liability for damages under Article 1903 CC, but always taking into account the provisions of Article 17 of Law 38/1999.
Legal Regime Governing Mortgages
In the legal regime governing mortgages, it is established that the mortgage is extinguished by the destruction of the building. However, the mortgage will remain on the soil, and if the building is rebuilt, the mortgage will tax returns. Given the practical course, if no property disappears, the mortgage is extinguished, as set out in Art 79.1 of the Mortgage Law. Caja Madrid could only ask for the mortgage loan land value, which is what remains. Therefore, Ana can ask first and second from any of her sureties, as they are all supportive and have no benefit of discussion, order, and division.
According to Article 1847 CC, the obligation is extinguished if Ana is also exhausted to that of her sureties.
Implications of Suretyship
In this case, since Ana did not know that Charles’s mother was his surety, she is unaware of Art 1823 CC. Therefore, the mother of Charles has made a completely valid payment of the debt on behalf of Ana. The mother of Charles succeeds to the position of Caja Madrid, and Ana can require 100% of the debt. If she does not pay, the effects of payment among the other debtors are collected under Arts. CC from 1844 to 1846. The mother of Charles, being solidarity among all guarantors, will include the share accruing to her to meet the debt. Usually, in contracts, this proportion is set to be borne by each party. I think there are two possible solutions:
- All sureties in solidarity with the legal position:
- Carlos ——– ——– mother Each parent = 33.33% respond with a debt.
- Another possibility is that Carlos is the principal guarantor and other co-guarantors, although supportive, are in various legal positions:
- Carlos is liable for half the debt (50%).
- Mother —- father. They will answer for the other half, each with a share of 25%.
Consequences of Contract Nullity
A contract is voidable due to vices affecting consent, as referred to in Article 1301 CC. The consequences of the nullity of the contract include inefficiency, which requires the exercise of avoidance action by the person entitled to it. Only those who have suffered vitiated consent or are incapable have standing to pursue this action. By application of bona fides, the CC excludes those who are unable to contract with Caja Madrid from exercising this action. There is a four-year period to pursue the perfection of the contract. The effects of this action are restitution under Section 1303 CC. However, one must also consider the favorable treatment for those hired without full legal capacity, as is the case with Ana, who is not obligated to repay only the enrichment with the things she received.
I believe Charles’s mother cannot claim the payment made to Caja Madrid and will have to wait for Maria to do so because she has no choice.