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Also to be taken into account are the Urban Planning Law of the region where the real estate is located and the relevant town council's building ordinances. There are four main permits required in Spain to carry out construction works and operate the resulting building. These permits are granted by the local authorities.
The purpose of this permit is to verify that the projected works comply with the applicable urban planning regulations. It is required for any type of construction, including the refurbishment or fitting-out of existing buildings, and for demolition works. In order to obtain a works permit it is necessary to submit details of the proposed works signed by an architect who is licensed by the relevant professional association.
The grant of any works permit involves the payment of the relevant taxes and, in some cases, the provision of an appropriate guarantee, generally given by a bank, to ensure that the authorised building works are actually carried out. The purpose of this permit is to confirm that the project complies with the health and safety standards laid down in the urban planning regulations.
The permitted use for the building and the activities to be carried out there will depend on the uses permitted in the applicable urban planning regulations.
If the activity is classified as disruptive, unhealthy, harmful or dangerous, the permit will lay down some requirements that must be fulfilled by the holder of the permit. In order to verify that it complies with all relevant requirements, a 'Permit to Open' Actividad de Puesta en Marcha is required.
It is always advisable to obtain the activity permit at the same time as the works permit, since the latter does not, in itself, authorise a specific use to be carried on in the building. This permit confirms that the construction has been built in accordance with the technical specifications contained in the relevant works permit. It is usually granted following an inspection of the building by the relevant local authority's technical experts. This permit confirms that the technical specifications laid down in the activity permit have been properly complied with and, as a result, that the building can be used for the purpose described in the activity permit.
Companies are obliged to provide their employees with information and training on health and safety issues, and carrying out periodical medical checks on them. In addition, there are various statutory regulations setting out specific obligations relating to the supervision and maintenance of a safe working environment, noise in the workplace, measures relating to pregnant employees, etc. The most important regulations on health and safety issues in the construction industry are the following:.
Finally, it is also worth noting that an infraction of the obligations contained in these regulations may give rise to the imposition of severe sanctions of an administrative nature.
Likewise, companies and their managers may be found liable under administrative, civil or even criminal law regimes. Legislation on air quality, such as the Air Quality Act controls emissions of environmentally harmful gases, smoke and other airborne pollutants.
Water quality is protected by water related Acts and Regulations which control issues such as pollution, surface water, groundwater and discharge to sewers. A wide range of duty of care legislation controls the generation, transportation and disposal of waste ensuring that the waste is handled and disposed of safely. The Environmental Impact Act regulates the procedure for the analysis and correction of the effects of a construction project which is likely to have a significant effect on the environment by virtue of factors such as its nature, size or location.
Such projects may require an environmental impact assessment before planning permission is granted. In recognition of the need for sustainable development, minimum energy requirements for new and refurbished buildings are contained in the Spanish Technical Construction Code and the Energy Efficiency Act.
Depending on the nature of the development, the developer will enter into specific agreements with the utility companies. The location of the project will also determine which reports and authorisations from different authorities are required eg from the roads department, rail network authority, coastal authority etc within the licensing process. Apart from the obligation on the contractor to fulfil the technical requirements set out in the Spanish Building Act, the Spanish Technical Construction Code, the Energy Efficiency Act and other technical regulations, there are only few legal provisions implied specifically into construction contracts.
One of these provisions implied by the Civil Code is the right for the developer to terminate the contract early without cause, being obliged only to pay costs to the contractor. An additional specific provision implied into construction contracts is that subcontractors are entitled to claim against the developer, even if no contractual relationship exists between them, for any debt owed by the contractor to the subcontractor and up to the amount owed by the developer to the contractor.
International forms of agreement, such as FIDIC contracts, are still rarely used in Spain, and then mainly in projects where they are a requirement when international financing is involved. The Spanish Building Act lists the main parties involved in a construction project, who will also be the parties to the various contracts involved, as follows:.
The party carrying out the project and procuring the work typically, a landowner or professional developer. The contractor engaged by the developer to carry out and complete part or all of the works. This contractor will usually, in turn, engage sub-contractors to carry out and complete specific parts of the works. One main contractor or various contractors may be involved in the works depending on the development and the contract procurement method used.
Responsible for the implementation of the project and very important from a practical point of view and in relation to the construction agreement, as the completion of any part of the works must be certified by the works manager. These technicians assess whether the works comply with technical regulations.
They must be involved in the construction process for the relevant building to obtain decennial insurance a year insurance policy giving cover against defects arising in the works. Traditionally, the building contractor is responsible for the construction of the works, but not for the design. In more modern turnkey oriented contracts, the building contractor may also take on responsibility for design.
The contractor usually assumes the risk of damage or destruction of the works until delivery of the completed building to the developer. Since May , buyers of newly built property have benefited from a legal year warranty, under which developers are liable in the event of a collapse or serious structural defects. The term of the warranty runs from the date on which the building is completed. Force majeure is construed strictly including usually only fire caused by lightning, floods, and strikes which affect other companies besides the contractor and is relevant mainly in relation to possible delays to the works, which may not then give rise to penalties on the contractors and will involve additional time being given to the contractor to complete the works.
Spain has a long and successful tradition of implementing public private partnerships PPPs , in particular in the form of public works concessions, which are suitable in situations where third party users pay a fee for the use of a public facility eg toll motorways. Although a lack of funding is holding back the PPP market, the Spanish government continues to support PPP as a way of spending on infrastructure and stimulating the economy.
Regional governments are also active in the PPP market, in particular through Private Finance Initiatives in the healthcare sector. Depending on the how the construction contract is structured, it may be possible to provide for a fixed price which is not dependent on the final costs incurred by the contractor. In such fixed price contracts, the only grounds for varying the price are variations to the works instructed by the developer other factors, as fluctuations in the price of materials are absorbed by the contractor.
Contracts in this form are usually more expensive. The only insurance which is legally required is a decennial insurance policy providing cover against structural defects to be obtained in respect of residential property by the developer after completion of the works. Consultants involved in the works, in particular architects and designers, usually take out professional indemnity insurance.
Payments under a construction contract are normally made against the certification of partially completed works by the works manager, which usually happens monthly. In fixed price contracts, the works to be delivered and payments to be made are normally set out in a payment schedule. An inspection of the works in order to authorise a payment does not normally imply either acceptance or delivery of the works. Commonly, payments are reduced by 5 percent, with that amount being placed in a deposit account aimed at guaranteeing the quality of the works.
Payments to professional consultants may be calculated in accordance with the recommended practice of the relevant professional society eg the Society of Architects , and are normally made on delivery of the documentation or on a periodical basis. Construction contracts always require the works to be completed by a specified date. Contracts often include a specific penalty for delay, usually a certain amount per day of delay. These penalties replace claims for losses or damage unless otherwise agreed by the parties.
The application of such penalties is always construed restrictively under Spanish law and the amount may be always limited by the relevant judge. The payment of such penalties is normally secured by a completion guarantee delivered by the contractor when the construction contract is entered into. Contractual mechanisms for dealing with variations to the works vary depending on why the variation is requested:.
The developer may request reasonable changes to the works at any time. After such a request, the contractor gives an estimate of the additional time and money involved in the variation and the developer is normally free to hire another contractor at a reduced price to carry out the works.
In such cases it is very important to agree with the general contractor in advance any coordination fee to which it may be entitled should new contractors become involved in the works. Where variations are necessary because of the building contractor's error, delay or default, the contractor is not usually entitled to any additional time or money under the contract.
He is also liable for any delays caused to the project by these variations, or where the variation means that the work has not been carried out in accordance with the contract.
If the general contractor assumes responsibility for design, the obligation to adapt the works in the event of a change in the law is imposed on the contractor. Liability for this obligation is, in any case, usually capped. The Spanish Building Act provides for a process known as handover of the works, which must happen within 30 days of the issue by the works manager of a certificate of completion certificado de final de obra.
Handover of the works transfers the risk of damage to the works to the developer. Normally there will be a provisional handover, even if there are some minor defects still outstanding a punch list that the contractor undertakes to make good within the guarantee period normally lasting for one year. Once the guarantee period has elapsed, a final handover takes place. The legal periods of guarantee start to run from the date of these minutes.
In these partial handover minutes, the developer accepts the building, but points out the defects detected, and the contractor is obliged to repair them within a short period of time the length of which may vary depending on the extent of the defects. Once the period for repairing the defects has elapsed a new inspection takes place in order to make sure that the defects have been properly made good, and the handover minutes are then signed.
The construction contract will normally include the conditions precedent which must be fulfilled before the handover can take place. In Spain, the general rule is that claims in respect of a breach of contract must be brought within five years of the date of the breach. Despite this the Spanish Building Act, lays down specific time periods during which a claim may be brought against the party involved in the construction depending on the type of the defect affecting the building.
Every party involved in the construction process is liable for its part in the project. Additionally, the developer is jointly and severally liable to end users in relation with the development. These legal liabilities to end users may not be excluded.
This liability is without prejudice to any contractual liability of the developer to the end user. Every party involved in the development is liable for its part in the project. This liability exists objectively and arises where any defect becomes apparent.
Evidence that the work was carried out diligently is no defence. Only force majeure can exclude the liability. If it is not possible to determine which party is responsible for the defect, all parties are liable. This liability may not be excluded. Purchasers of a building, both the initial purchaser or any subsequent ones, are protected by the principle of objective liability for construction defects which is imposed on all parties involved in the construction process and in particular on the developer as the guarantor of this liability.
This protection is afforded to owners, but not to tenants or funders, who may only claim in respect of non contractual liability. The seller is liable, for up to six months following the handover of the property, for ensuring that the purchaser receives legal and peaceful possession of the property and that there are no hidden defects. The parties can waive this liability contractually, but the waiver is ineffective if the seller acted in a dishonest manner.
In Spain proceedings are commenced by issuing a claim form accompanied by all the original documentation on which the plaintiff bases its claim. Civil claims in Spain are brought in the Court of First Instance and commercial claims related to bankruptcy proceedings, unfair competition, industrial properties, and corporate matters such as challenging the decisions of a shareholders' meeting are brought in the Commercial Court.
In Spain the parties have a day period for the appeal to be filed.
Ley de ordenación de la edificación
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