To put it in a nutshell, the Hidden defects are defects or imperfections in the object of sale at the time of purchase that cannot be seen with the naked eye, but which affect its quality, functionality or safety.

From this point onwards, in order to know if there is a hidden defect, it must fulfil certain characteristics:

  1. The defect must have existed prior to the sale.
  2. It must be “hidden”, i.e. not visible or recognisable to the naked eye.
  3. It must be of such a nature as to render the thing unfit for the use for which it is ordinarily intended.

Hidden defects are a relevant concept both in civil law and in purely commercial law, since they They protect consumers from defective products that do not meet minimum expectations of quality or functionality, but also protect entrepreneurs who buy from other traders in the course of their business.

In general terms, hidden defects are often found in sales contracts and leasing contracts., Some of the most common cases could be: cracks or dampness in a house that are not visible to the naked eye but become evident over time, a faulty car engine that is not recognised during the test drive but is later on, or internal faults in a household appliance due to an initially undetected defect, among others.

Where are hidden defects regulated?

In terms of regulation, is mainly found in the Civil Code, specifically in articles 1484 to 1499 of the Civil Code, which regulate hidden defects in the context of the sale of goods., In this sense, the seller is obliged to remedy these defects, even if he was unaware of them, provided, however, that the claim is made within the period established for this purpose. However, the seller will not be liable if, even when claiming in due time and form, the obvious defects are visible to the naked eye or if, even if they are not obvious, the buyer is an expert in the matter, who by reason of his trade or profession could have known them (or should have known them); by way of example, this could be the case of a mechanic who buys a second-hand car, although to assess this correctly, we would have to look at the specific case and the circumstances that have arisen.

Also, there are other regulations that also regulate hidden defects, on the one hand, the Royal Legislative Decree 1/2007, of 16 November, which approves the revised text of the General Law for the Defence of Consumers and Users and other complementary laws (TRLGDCU), which contains a series of general rules on the guarantee of consumer products, expressly in art. 114 et seq. of the aforementioned precept as well as in its First Transitional Provision on commercial guarantee, and, on the other hand, the Commercial Code in its section on commercial sales and exchanges regulated in articles 325 to 346 of the Commercial Code.. It is therefore a highly regulated area.

How can we reclaim them and what is the deadline for doing so?

Although the existence of hidden defects gives rise to different generic actions for nullity and annulment of the contract due to the absence of any of its essential elements, there are also more specific actions in our legal system so that the buyer can claim against the seller if the latter fails to fulfil his obligation to deliver the thing without defects or flaws and without the necessary aptitude to be used for the intended purpose. These actions are aimed at obtaining either the termination of the contract or the modification of its conditions, as well as compensation for damages:

  1. The clean-up action: This is the one in which the buyer requires the seller to adapt the good in accordance with the agreed conditions, as the seller is obliged to provide the buyer with peaceful possession and the apparent characteristics of the thing delivered.
  • Redhibitory action: The buyer rescinds the contract and obtains the return of the price paid together with the expenses incurred, and in the event that the seller was already aware of the existence of these hidden defects and did not inform the buyer of them at the time of formalising the sale, liability for fraud arises in which the seller must compensate the buyer for all damages that can be demonstrated. This action is aimed at the rescission of the contract between buyer and seller and seeks its total rescission.
  • The action “quanti minoris”: A proportional amount of the price paid is reduced, following an expert valuation; in this way, contractual fairness is re-established and the true value of the property acquired is brought into line, without the possibility of damages being available in this action.Principle of the form

The time limit for the buyer to bring an action against the seller in sales between private individuals is six months from the delivery of the thing sold.The time limit is, in any case, a limitation period, as provided for in Art. 1490 Cód. Civ. the action is not time-barred, but lapses after six months, This means that the claim cannot be interrupted, suspended or exercised after this time has elapsed, regardless of when the hidden defects are discovered. Therefore, it is recommended to act as soon as possible after discovering any defect and to inform the seller immediately, as the more time elapses, the more difficult it will be to prove that the defect existed prior to the time of purchase.

Even so, it is important to bear in mind that, If the buyer discovers the defect after the six-month period has elapsed, he is also protected by law in other ways:

  • You can exercise the action for nullity of the contract provided for in Art. 1301 CC., The limitation period is four years from the conclusion of the contract. This is, however, an exceptional measure.
  • You can choose between demanding performance of the contract or termination of the obligation, The non-performance of the contract, with compensation for damages and payment of interest, regulated in Art. 1124 CC, which establishes a period of 5 years from the time of the non-performance (Art. 1964 CC).

Exceptionally, when the specific case regulated in Art. 342 of the Commercial Code arises (as a general rule we are dealing with a sale of goods between traders), it will be an essential condition that the buyer makes a complaint to the seller, albeit out of court, within thirty days of delivery of the goods or merchandise.

In addition, it is important to bear in mind that, if the sale is between a consumer and a professional rather than between private individuals, it is possible to avail oneself of the procedure provided for in the TRLGDCU., In general terms, this is more beneficial; specifically, Articles 114 et seq. establish the option that, in the absence of conformity, the buyer may choose between the repair or replacement of the good, a proportionate reduction of the price or even the termination of the contract when the specific conditions for this are met. In these cases, the professional seller will be liable for the lack of conformity that exists at the time of delivery and for those that become apparent within three years of delivery (although there is the possibility of agreeing a shorter period, never less than one year, in the case of second-hand goods). The action to claim performance prescribes 5 years from the manifestation of the lack of conformity.

What are warranty periods? What is the difference between a limitation period and a warranty period?

Very often goods are sold “under warranty”. The difference between the limitation period and the warranty period in the context of the Consumer and User Act is important, as the two concepts are related, but serve different functions.

On the one hand, the warranty period is the period of time during which the seller is obliged to repair, replace or refund a product that proves to be defective.This period starts from the delivery of the good to the consumer, whereas, on the other hand, the limitation period is the period within which the consumer may exercise his legal right to claim for the defect that has occurred, This period is counted from the discovery of the defect, and not so much from the delivery of the good. If a claim is not made within this period, the right to claim is time-barred, although it can be interrupted by notifying the seller in writing.

What happens when we find hidden defects in the construction? What is the deadline for claiming them?

Hidden defects in construction are defects in the home, building or premises, which are not apparent when the work is delivered to the client, but which may be the result of errors in the execution phase of the work, deficiencies in the project or poor quality of the materials used. In these cases, actions for liability for damage to property resulting from hidden construction defects shall be time-barred within two years of the occurrence of such damage., without prejudice to the actions that may subsist to demand responsibilities for breach of contract, as regulated in article 18.1 of the Ley de Ordenación de la Edificación (LOE),

Likewise, the guarantee periods established in article 17.1 of the same law, which vary according to the type of defect and during which the so-called building agents are liable, must also be taken into account:

  • For ten years for material damage caused to the building by faults or defects affecting the foundations, supports, beams, floors, slabs, load-bearing walls or other structural elements, and which directly compromise the mechanical strength and stability of the building.
  • For three years, for material damage caused to the building due to vices or defects in the construction elements or installations that cause non-compliance with the habitability requirements. that the Ley de Ordenación de la Edificación itself establishes in Article 3(c)(1).
  • The builder shall also be liable for material damage due to faults or defects in workmanship. affecting elements of completion or finishing of the works within one year.

These guarantee periods apply regardless of whether the property is new or has been transferred to a second or subsequent purchaser, and start to run not from the purchase of the property but from the signing of the building acceptance certificate.

By way of example, and to understand it better, the first ten-year guarantee period obliges the agents involved in the building (i.e. architects, developer and builder) to respond to structural defects or faults, which are those that usually take the longest to manifest themselves; however, this ten-year guarantee does not mean that the owner-buyer has 10 years to bring a liability action for construction defects, but will have a period of 2 years from when the damage occurs or he becomes aware of it. Therefore, the ten-year period is the period during which the damage must manifest itself in order to be imputed to the construction agents and, once the damage has already manifested itself, the owner will have a period of 2 years either to make the claim or to interrupt the limitation period.

In the light of the above, we believe that the complexity of the issue is clear. Therefore, if you consider that you are in a similar situation where you have been wronged and need a hidden defects lawyer to find out how to proceed, please do not hesitate to contact us.