Construction defects in Mallorca: Warranty and liability of builder and architect

Whether it's cracks in the foundations, leaking roofs or a sloping pool edge: construction defects in Mallorca are not a marginal issue, but affect buyers of new-builds just as much as clients having a finca renovated. Unlike in Germany, in Spain it is primarily the Ley de Ordenación de la Edificación (LOE) from 1999 that regulates who is liable for how long for which defect – builder, architect and developer share responsibility, often supplemented by a legally required insurance policy. In this guide you'll learn which warranty periods apply, how liability is divided among those involved in construction, what the Decenal insurance covers, and how to proceed step by step in the event of a defect – including the special rules for older buildings from before 1999.

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The Ley de Ordenación de la Edificación (LOE): the basis of construction liability

Since 1999, the LOE has regulated the liability of everyone involved in construction in Spain – from the developer (promotor) to the builder (constructor) to the architect. The law protects not only the first buyer, but also every subsequent buyer of a property: anyone who buys a house that was originally commissioned by someone else still has their own liability claims against those involved in the construction – without any direct contract with the builder.

This is particularly relevant for turnkey new-build projects in resorts in Mallorca: the buyer usually only signs a purchase contract with the company that owns the land and markets the property – not with the actual builder. This is precisely the case the LOE addresses, because otherwise the buyer would have no legal recourse.

Note: Because in such constellations the buyer is not the builder's client, they also cannot themselves use the otherwise customary 5% retention of the construction sum as leverage. This makes it all the more important that the statutory Decenal insurance is in place.

The three LOE warranty periods: 1, 3 and 10 years

Depending on the type and severity of the defect, the LOE distinguishes between three different warranty periods. The more serious the defect is for the safety and usability of the building, the longer the period.

It is important here to distinguish between warranty period and limitation period for filing a claim: The warranty period describes the timeframe after completion of the building within which a defect must appear for it to still fall under statutory liability. If the defect occurs within this period, a separate, shorter period then begins from that point for actually bringing a claim.

Who is liable? Builder, architect, developer and insurer

Under Art. 17 LOE, several parties are liable alongside one another – and often jointly (jointly and severally), where the exact party responsible cannot be clearly identified.

A special case is architect liability: even if the builder carries out the actual construction work defectively, the architect remains liable if they breached their duty of supervision – for example, if an inadequately dimensioned foundation was not flagged despite recognisable warning signs. Case law has repeatedly confirmed joint liability of the architect and the developer where both errors contributed to the damage.

Decenal insurance: mandatory cover for ten years

Developers who sell properties to third parties are legally required to take out what is known as Decenal insurance (building warranty insurance). It covers structural damage that occurs within the first ten years after completion and serves as additional protection for the buyer – regardless of whether the developer, building contractor or architect is still solvent, or even still exists, at that point.

Note: Before buying a new-build or recently constructed property on Mallorca, always check whether a valid Decenal policy is in place. If it's missing, in the event of damage you'll have to rely on the direct liability of the parties involved in the construction – which can be considerably harder to enforce in a dispute.

You can find more details on the scope of cover and how to take out the policy in our guide Decenal insurance Spain.

Statute of limitations: how long can you sue, and against whom?

In addition to the LOE guarantee periods, there are various claim and limitation periods depending on the legal basis for your case and when the building was constructed.

Spain's Supreme Court (Tribunal Supremo) clarified in 2005 that the ten-year liability of the developer for older buildings does not automatically expire after ten years – what matters is that the defect first appears within these ten years after completion (Tribunal Supremo, ruling of 23.05.2005).

Note: many sources still cite an outdated figure here: The general limitation period for personal claims applicable to the subsequent time limit for legal action was, at that time, fifteen years under Art. 1964 Código Civil. The Ley 42/2015 of 5 October shortened this general period to five years; for older cases, the transitional provision Disposición transitoria quinta applies. Anyone assessing a claim today should therefore no longer assume fifteen years across the board — as a rule, the period is now five years. Calculating the exact deadline in an individual case should be left to a lawyer.

Buildings before 1999: special rules outside the LOE

For buildings constructed before the LOE came into force – far from rare on Mallorca given the large stock of older fincas and houses – the LOE does not apply directly. Instead, case law has developed a ten-year guarantee liability for the developer for damage that renders the building uninhabitable.

Originally, this ten-year guarantee was limited to the collapse of the building. However, case law has extended it – it now also applies to damage that partially prevents the use of the building, for example when a structural component was incorrectly dimensioned and can therefore not be used as intended. In such cases, those responsible must compensate the client for the damage incurred.

Delayed completion: when the deadline itself is the defect

Not every dispute revolves around structural substance – delayed completion is also a common issue. In many construction contracts, completion dates are only vaguely worded, and penalty clauses for missed deadlines are often absent altogether. Spanish case law, however, grants compensation in such cases if the delay is substantial.

In a widely cited case, a contractor had to work ten months longer than agreed on a holiday home – the client received compensation for missed weekends and public holidays (AP Barcelona, judgment of 12.02.04). The Balearic Court of Appeal (AP Baleares) followed this line in its own judgment of 31.05.2005.

Note: Even though case law is consumer-friendly, you should always agree an explicit penalty clause for missed deadlines in the construction contract – for example, weekly compensation from the agreed completion date. This will save you a lengthy legal dispute over the reasonableness of the delay.

How to proceed step by step in the event of a construction defect

1. Document the defect: Take photos, note the date it appeared, and record the affected structural elements precisely.
2. Commission an expert (perito): An independent technical report establishes the cause and severity of the defect – essential for any later dispute.
3. Send a written notice of defects: To the developer, contractor or architect, with a reasonable deadline for remedial work – ideally by registered mail or fax with proof of receipt.
4. Contact the decennial insurance: If a policy exists and the defect is structural, report the damage there in parallel.
5. Check deadlines carefully: Distinguish between the guarantee period (1/3/10 years) and the limitation period for legal action (2 years under LOE, otherwise 5 years under Art. 1964 CC), depending on the case.
6. Involve a lawyer: If the other party does not respond or disputes the defect, the usual course of action is to file a claim before the Spanish civil court.

You can find specialist legal support in the guide Lawyer for property purchase in Spain.

Most common mistakes with construction defects on Mallorca

• Reacting too late: Anyone who notices a defect and waits risks letting the short limitation period (in some cases only 2 years after it occurs) expire.
• No written notice of defects: Verbal complaints are difficult to prove later – always document in writing and with evidence.
• Missing expert report: Without an independent technical assessment, the evidence in court is significantly weaker.
• Confusing the guarantee period with the limitation period: A defect that appears, for example, in the 9th year still falls under the 10-year guarantee – but the claim must then be filed within the shorter subsequent deadline.
• No check of the decennial insurance before purchase: Especially with new builds, this is an avoidable risk that can be clarified with a simple enquiry to the notary or developer.
• No contractual penalty for construction delays: Without a clear clause, only the arduous route via case law on missed deadlines remains.

What comes next? The path from dispute to resolution

If the other party does not respond to the notice of defects within the set deadline or disputes the defect, court proceedings are usually the only option left. In this case, the proceedings rely heavily on the expert report obtained and the documented correspondence. In many cases, it is worth attempting an out-of-court settlement before filing a claim, as court proceedings in Spain can take several years. For structural defects covered by the decennial insurance, claims settlement is often faster through the insurer than through a lawsuit against the individual parties involved in the construction.

Checklist: Tackling construction defects on Mallorca correctly

• Defect documented with photos and date
• Independent expert (perito) commissioned
• Written notice of defects sent with a deadline
• Decennial insurance checked and, if applicable, informed
• Guarantee period (1/3/10 years) and limitation period determined
• Year of construction checked (before or after 1999 – is LOE applicable?)
• Contacted a construction law lawyer if no response is received
• For new builds, before purchase: agreed a penalty clause for missed deadlines

Conclusion

Construction defects in Mallorca are clearly regulated by law, but the subject matter is complex: the LOE staggers liability according to the type of defect into periods of 1, 3 and 10 years, several parties – building contractor, architect, developer and insurer – are jointly liable, and for older buildings from before 1999 separate rules developed by case law apply. Anyone who documents issues early, obtains an independent expert report and keeps an eye on the relevant deadline has good chances of enforcing their claims – whether against the Decenal insurance or directly against those involved in the construction.

Official sources

• Ley 38/1999, de 5 de noviembre, de Ordenación de la Edificación (LOE) – Boletín Oficial del Estado: https://www.boe.es/
• Tribunal Supremo – case law and rulings: https://www.poderjudicial.es/
• Colegio Oficial de Arquitectos de las Illes Balears (COAIB): https://www.coaib.es/
• Consell de Mallorca – Urbanismo y Ordenación del Territorio: https://www.conselldemallorca.cat/