Who must fix their subsiding terrace?

Q. I have an apartment on the Costa Del Sol in a complex run by a Community. My balcony/terrace is sinking and so is the one next door. The Committee of our Community advised us that it was our problem. They said we, the owners, were responsible for repairs, even though the terrace is outside the exterior wall of the structure. You have said in your EWN column that anything outside the exterior wall belongs to the Community. The flats were built in 2000 and I think this subsidence should not happen to such a new build.

We are ground floor but below the structure is a communal garage area so our back terrace is actually eight metres above street level. We don’t know what infill was used below it.

I have home insurance and perhaps we should put in a claim. A.C. (Costa del Sol)

A. Yes, your first call should be to your home insurance company. That is why you pay them. And, yes, I noted that anything outside the exterior walls of a building, such as terraces and gardens, is the property of the Community.

I also said that “exclusive use” of these elements is assigned to the individual owners. The Spanish courts have consistently ruled that ‘exclusive use’ means that each owner is responsible for his own terrace or balcony or garden, so repairs are on you, even if the basic ownership is the Community.

There is a clause in building contracts requiring the builder to have insurance to repair defects, but this insurance runs out after 10 years. So the only option left against the builder is a normal lawsuit for the defect. I agree subsidence after 15 years seems like an actionable defect, but this is tricky, possibly involving the architect or the geological study of the land, and the judge will have to decide.

Of course your first choice should be your insurance company. Put in a claim. If you are lucky and your policy covers the problem, they will pay up and then try to recover the amount from the original builder.

Be aware that insurance companies are always alert to find some-thing in their small print to escape paying.

Send your questions for David Searl through lawyers Ubeda-Retana and Associates in Fuengirola at Ask@lawtaxspain.com, or call 952 667 090.