The building expert report and the judicial expert architect
Many are the doubts of a expert technician that invade us when claiming any circumstance caused by acts related to the building or construction that passes through a expert report before a purchase-sale, inheritances, relationships between the agents involved in the building process, damage caused to the properties during warranty periods … etc.
That is when we should consider …What are our rights and obligations? What are the claim and warranty terms that I have? What to do if my home is delivered to me with damage? Who are responsible for the state in which it is Do you give me my home? How can I get advice to make a claim?
To write the article, we first asked those who have experience with "hidden defects" and problems in housing construction. In this case, Dpcon, who are experts in claiming construction defects, have given us useful tips that we should review to adequately justify the expert opinion (At the end there is a very good video).
Second, many other questions are answered in the extensive legislation that exists and affects the expert reports in building. We want to remember that those everyday issues that we carry out when carrying out any real estate operation, aspects related to architecture or especially related to construction or works directly, are covered by the Law.
Models of expert reports and classes
The most frequently used documents are:
- Certificates. This document, which is normally short, is required before innumerable administrative procedures so that a certain organization - administration has proof of a certain and concrete fact, under the responsibility of the signing technician. (The example would be the energy certificate of a home)
- Technical reports. The action of any technician will consist exclusively of making a detailed and objective technical description of the matter under examination, refraining from commenting or any judgment or drawing any type of conclusion. (The example would be the evaluation reports of the IEE buildings)
- Opinions. It is usually commissioned by an authority in order to obtain clear criteria to be able to decide on the subject in question. It is therefore a document similar to the Report in which the technician, after observing the elements under study, will proceed to analyze and judge them, establishing hypotheses, until obtaining personal technical conclusions.
The expert opinion goes beyond the descriptive fact. The technician issues an opinion (written, founded and justified).
- Appraisals. The Opinion or the Expertise are actually synonymous, although there is a tendency to refer to this document as Expertise when the Opinion report is requested by a judge, in view of a lawsuit.
Processing process
We believe that to understand the process we should first see the following scheme where it is specified step by step by way of example what are the actions that we should take to draft the expert opinions or expert reports. Within a process there are two types of expert reports by means of:
- That report prepared by the experts appointed by the parties to the conflict. It must be provided with the claim or with the answer.
- That report issued by experts appointed by the court or tribunal, which in turn may be:
- -. Requested by the parties, having to express the object of the expertise or the points on which it must base its report.
- -. Agreed by the court or tribunal to appoint a judicial expert when it deems it useful, pertinent or necessary.
Always, professionalized advice is necessary, because in the event that a claim results in a judicial claim, it will be necessary to have a resounding defense before a court, which will be endorsed by a professional expert who will make the expert report that will defend the evidence in the process.
To do this, they must have a clear and well-defined methodology, sufficient legal training, be aware of both the judicial and procedural dynamics, the applicable regulations in each case, the existing jurisprudence and ensure a resounding defense before a court and without any type of corporatism before the professionals involved as building agents.
The judicial expert in the building
The judicial expert or forensic expert is a professional endowed with specialized and recognized knowledge, through their higher studies, who provides information or founded opinion to the courts of law on the litigious points that are the subject of their opinion.
There are two types of experts, those appointed by the court and those proposed by one or both parties (and then accepted by the judge), both exert the same influence in the trial.
Legislation of application on the judicial expert architect
In Spain, the expert must have his knowledge certified, so it is necessary to provide an official title or knowledge of the official state title of Architect or Technical Architect in the case of Building. The main implementing legislation is:
- Law 38/1999, of November 5, Construction Planning
- Technical Building Code (Direct to the portal due to the constant changes it undergoes)
- Order of January 28, 1972, which regulates the Final Certificate of the Building Works Directorate
- Civil Code
- Civil prosecution law
- Criminal Procedure Law
The Condition of the judicial expert according to the Law of L.E.C. (Civil Procedure) typifies in its article 340.1:
1. Experts must possess the official title that corresponds to the subject matter of the opinion and its nature.
And in the Criminal Procedure Law in its article 457 it contemplates that the Judicial Experts may or may not be holders.
"Experts are those who have an official title in the nature of the expertise required by the court."
The expert provides the judge with the expert opinion or well-founded opinion of a person specialized in certain branches of knowledge that the judge is not obliged to master, in order to provide arguments or reasons for the formation of his conviction.
The expertise may be provided based on the mere knowledge of the expert, or the application of such knowledge in the evaluation of a certain test.
One of the less studied responsibilities, at least in an integrated way to the judicial process, is undoubtedly that of the expert, and he is perhaps the most important subject in the investigation stage and of the probative value of the course of a given procedure.
Types and expert reports in building
Although in the field of construction we can find many casuistry and, therefore, a great variety of reports, within the most common we can identify the different types of expert reports in:
- Expert reports for non-compliance with measures or surfaces.
- Expert Reports of Communities of Neighbors.
- Expert reports on the current state of works.
- Expert reports of construction pathologies or construction defects.
- Expert reports for humidity.
- Expert Reports for contradictory in the Certifications of Work.
- Expert reports for breach of contract qualities.
- Expert reports for damages or hidden defects.
- Appraisal or economic valuation reports.
- Expert Reports to determine a Fair Price.
- Expert Reports of Valued Relationship.
- Expert or Forensic Reports for Accidents caused: floods, structural damage, demolition, accidents, fires, collapses, explosions, foundation settlements, vandalism.
- Urban Expert Reports: Claims for participation fees in Compensation Boards, expropriations, occupations, cadastral claims.
- Expert reports for invasion or determination of medians.
- Expert reports for determining the surfaces of plots, farms, housing tools.
- Expert reports determining the age of the building.
- Expert reports for breaches of urban deadlines.
- Expert reports on the determination of inheritance, estate, liens, divorces …
- Contradictory expert reports against insurers.
- Technical-Legal Advice.
- Opinions and Certifications of all Expert Reports.
- Ratification and defense in trials of all Expert Reports.
With so many obstacles that can arise from a work and as a reminder. We attach the following image of the most common pathologies (Hidden defects) that appear in houses and buildings. We find it interesting and valuable to see at a glance where we will have the most widespread problems:
Terms and guarantees of responsibilities
On the subject of responsibilities on site, as long as nothing or no accident happens, everything is fine, but when something happens if the position and responsibility of each technician has not been clearly specified, it can turn into a huge headache. A schematic model to begin to understand would be: (Clicking on the image opens a new window to see it better)
Due to the importance of the previous scheme and the quality of the document, it can be accessed from the Report "Critical analysis of responsibilities of the different agents involved and Integration of Occupational Risk Prevention in the Building Process" … Acessla report HERE.
In the case of claims related to the building process and once the problem that has been caused with the home has been exposed to the consultants, we must take into account the deadlines and guarantees provided by Law to make a claim.
The Building Planning Law (LOE) that entered into force on May 6, 2006, regulates the obligations and responsibilities of the natural or legal persons involved in the construction of a property in order to protect the interests of home buyers.
It is established in said Law, in its article 17, three guarantee periods depending on the damage caused. The calculation of the guarantee period will start from the date of receipt of the work without reservations or from the correction of these. This is an expiration period (not a prescription) that does not allow interruption or suspension. Thus it is established:
1 Year Completion Defects:
Damages that affect the finishing elements and finishes of the works (pitted tiling, tile mismatch, broken or chipped tiles, lack of mechanisms, lack of polishing or polishing, lack of paint, carpentry closures, lumps on the walls, chips, door collapses, construction dirt, carpentry or glass scratches, etc …)
3 Years Defects or vices that affect habitability:
They are those defects or constructive defects and those of the facilities that cause the breach of the habitability requirements established by law.
They can be such as those related to hygiene, health, noise, environmental protection, sealing, energy saving, thermal insulation and functional aspects; (Such as dampness on roofs, sound transmission, window closures, excess thermal differences, condensation dampness, clogged collectors and unprovoked drains, damage to unhandled electrical installations, water leaks, breakage of cisterns and other mechanisms, air conditioning defects, television and telephone signal pick-up defects, puddles, etc …).
10 Years Defects that affect the mechanical resistance and stability of the building:
During the first ten years, the guarantee affects defects that affect the foundations, supports, beams, floors, load-bearing walls or structural elements and that compromise the mechanical resistance and stability of the building.
These are the most difficult damages to determine, since in most cases laboratory or geotechnical tests are required to determine the extent of the damage.
We must not forget that not all cracks are indications of structural damage, most of them are caused by thermal expansion, uneven behavior between different materials, retractions, mechanical instability other than structural movements etc … Only a specialist technician or expert can detect and determine the nature of the fissures or cracks.
The LOE in its article 18 provides that the actions to demand responsibility for defects or defects in the building prescribe two years from the date the damage occurs, so obviously the damage has to occur within the warranty period and subsequently the The injured party has the aforementioned period to file a claim.
However, it is advisable to inform the developer and builder immediately and in writing (if possible by Buro-fax) of the defects detected.
We must know that in the case of complaints about deficiencies, all agents involved in the construction of the home or building have obligations to the owners and third party purchasers of properties or part of them.
The main agents of the building that the LOE lists are: the Promoter, the Designer (architect), the Builder, the Director of Work and Director of Execution (architect and technical architect), the entities and the quality control laboratories, the Product suppliers and even owners and users, who must keep the building in good condition through proper use and maintenance established in the technical documentation (Building Book) that they will be obliged to receive.
As a guarantee of the payment of the compensation that corresponds in each case, the promoter has to take out a ten-year property damage or surety insurance and another for three.
How to write an expert report
Each example of expert report that we have seen at the beginning of the article is written in a certain way and must follow more or less specific guidelines:
- Certificates.
- Technical reports.
- Opinions.
- Expertise.
In most cases it is based on UNE 197001 - General criteria for the preparation of reports and expert opinions. And it will be priced based on the technician's work and many other factors.
How to explain what would be the wording for each party within an article is not feasible before the different types of judicial processes. We attach an excellent document of preparation of reports and expert opinions from the CAAT Valencia consult from HERE. (That we can also see different models and expert reference templates for each section)
From the following video is a real example of an expert report of pathologies, explaining the counter-reports and sentence.
Expert report templates and examples
To complement the article and since we already have some standard models in the previous document, we wanted to add a few Expert report templates in PDF and in DOC (Word) to be able to download them for free (They belong to the Official College of Technical Architects of Lanzarote - They are direct downloads. Note: The following downloads have been eliminated from the College, we are sorry not to be able to provide the information that was very useful. and not being free, from Ficherotecnia.com you can buy example templates).
- CERTIFICATE Model format.
- REPORT Model format.
- DESCRIPTIVE CERTIFICATE Model work under construction format.
- DESCRIPTIVE CERTIFICATE Model finished work format.
- EXPERT REPORT General model format.
- TEMPLATE COAAT General model format.
It is difficult to find models that we can use for free. So if anyone knows of a repository or place where we can access different templates, please add a comment and we will improve this section.
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