Surveys

1. Which persons are approved in Spain at court as building surveyor or surveyor?

Ley 2-1974 de colegios profesionales : “…Anteproyecto de Ley de servicios y colegios profesionales. ... podrá exigirse colegiación obligatoria para el ejercicio de una profesión titulada

o ... del esquema de certificación de profesionales; el Registro de peritos judiciales; los .... sólo

se les permite ejercer aquellas actividades para las que están habilitados de ... “

According to Ley 2-1974 at court approved surveyors have to proof their qualification (corresponding studies) and have to be a member in a spanish professional chamber.

The particular chambers have lists with the qualified and approved surveyors available. Related to the building industry, this means that a court-appointed surveyor in Spain has to be registered at the Chamber of Architects or Technical Architects and has to be member on the list of surveyors of one of the chambers.

Private Structural Damage Surveys

Building Surveyor is not a protected profession in Spain, this means everyone may issue a survey.

But the recognition or evaluation of this survey by the judge will depend on whether above mentioned criteria are met. A Structural Damage Survey or Structural Survey which has been issued as a private Survey by someone who is not at least registered in a spanish Chamber of Architects, will always give the opposing lawyer the possibility to refuse the Survey because of non-fulfilment of the minimum requirements of Ley 2-1974.

 2. Differences of Proceedings for the preservation of evidence and Strutctural Damage Survey and related points

For a Preservation of Evidence Survey or Proceedings for the preservation of evidence, nothing else will be done, but preserve evidence without getting into the causes of structural damages or their evaluation.

A Preservation of Evidence Survey is usually necessary if during a construction project damage occurred, the constructor refused to remedy the damages and another constructor needs to be assigned to finish the construction project.

As long as it is uncertain, whether an agreement with the previous contractor can be achieved or not, it is sufficient for the principal to get the evidences preserved, without having to raise the additional costs for a Survey.

A Proceeding for the preservation of evidence can be executed by a notary without engagement of an expert or a Construction Surveyor, as it´s only necessary to take photos of the structural damages and to create an official preservation of evidence document.

But it´s much more helpful to get the documents for the Preservation of Evidence Survey done straight away by the Surveyor who is being favoured by the constructor to do a later Construction Survey or a Structural Damage Survey. Because only a construction expert will understand how and where the photos need to be done exactly, which will serve as basis for the Structural Damage Survey. It is very important that the photos demonstrate as accurate and clearly as possible the Structural Damages to be recorded and evaluated. Because later, when construction has advanced and damages have been removed, the damages won´t be detectable and demonstrable anymore.

If a building expert issues the documents for the Proceeding for the preservation of evidence, these documents only have to be ratified afterwards by a notary. This means the notary has to verify whether the filed documents are according to reality on the construction site, in order to convert them into an officially approved Proceeding for the preservation of evidence.

3. The common procedure of a construction process and the difference between a private and a court-appointed Survey.

This is a simplified description since each case and the participating persons are different.

3.1.  If an agreement could not be achieved, each one of the opposing sides retains a Surveyor (in this case a private Surveyor). Usually the spanish engage early with a lawyer and the lawyer of a spanish opponent will already be leading the negotiation during this phase.

Once both private Surveys are available, there will be the attempt to reach an agreement on this basis. At this point it is common in Spain that the counterparties do not communicate anymore with each other, instead all communication will be handled by the participating lawyers.

3.2.  If an agreement could still not be achieved, a lawsuit will be filed and the private Survey is an important document for the complaint. Both parties will call the private Surveyors as witness for the construction process, where they will be interviewed by the opposing and their own lawyer. The judge can also cross-question the private Surveyors and let them testify against each other.

The judge of the construction process can decide based on the trial, or even before when revising the court papers, whether or not a third, court-appointed Structural Surveyor should be heard who will issue a so-called court opinion. The independent court-appointed Surveyor will be chosen by drawing in rotation from the list of the Chamber of Architects. Once the judge has according to him sufficient data to decide the verdict, he will decide in a separate, administrative act in his office the verdict.

It can take several weeks until the verdict is been written and will be delivered to the parties involved. Only then the parties will know the verdict.

4.   Tips on winning a construction legal procedure before Spain courts.

4.1. Who ever wants to win a legal procedure has to be prepared to manage it himself.  The lawyer will make note of what you are saying and give legal advice, often he does not do more...

4.2. Judges are not construction experts.  Surveys should ideally be visual, easy to understand and be very difficult to negate.

4.3. Opposing Surveyors can consciously state technically inaccurate testimony (the judge does not always have expert knowledge). Your own survey has to be able to negate the possibly false statements of the opponents survey and support your own statement as far as possible.

4.4. Preconceive that sometimes, if possible, it will be lied before the court.

4.5. If you do not have a really excellent lawyer, it´s important to fully brief him before the court date and it will be necessary to agree in advance the questions he should be raising.

5. Some urban legends, which are not true or for which there are legal solutions:

5.1. A building constructor who is registered at the construction office as main constructor, can not be signed off against his will.

5.2. A technical architect or architect who is the registered architect for the construction site, can not be signed off and replaced against his will.

5.3. You can / may not employ workman from Germany.

5.4. If you do not contract architect X and constructor Y, the construction permit will not be obtained or be withdrawn.

5.5. If you do not pay constructor X, because he made errors, you will be put on a blacklist and nobody won´t work for you anymore.

6. Services offered:

6.1. Supervise and solve problems of any kinds in connection with building law, licensing law, or disputes during the construction process.

6.2. Assessment and redevelopment of structural damage, construction management and organisation of damage reconstruction, legalisation of buildings.

6.3. I collaborate with several lawyers, also spanish lawyers and can select the one most suitable for your case.

6.4. Supervision of the lawyers for the cases I got assigned for the Surveys.

6.5. Representing the Surveys issued by me at court.

7. Billing of services:

7.1. Surveys and problem solving in the construction area: usually hourly billing, but depending on the circumstances also possible on a success basis.

7.2. Problem solving in the area building law, licensing law, legalisation of buildings: after previous examination of the case: preferably on a success basis or alternatively on an hourly rate.