In legal proceedings brought by the purchaser of a newly built home against the developer-seller for construction defects, the developer may seek to join other construction professionals to the proceedings, such as the contractor, the project architect, the site architect, or the technical architect responsible for supervising the execution of the works. Where the purchaser has not brought a direct claim against those professionals, an important question arises: can the purchaser be ordered to pay their legal costs?
In claims concerning defects in newly built residential properties, it is common for the developer-seller, once sued, to seek to transfer or share liability with other parties involved in the works through the procedural mechanism known as third-party joinder (“intervención provocada”). This mechanism, governed by Article 14 of the Spanish Civil Procedure Act and the Seventh Additional Provision of Law 38/1999 of 5 November, on Building Regulation (Ley de Ordenación de la Edificación – LOE), allows those professionals to be joined to the proceedings in order to defend their technical work.
Fortunately for consumers, both Spanish legislation and case law have established a protective approach for claimants. The decisive factor is the concept of “party status”. A third party joined to proceedings at the request of the defendant does not automatically become a defendant directly connected to the purchaser unless the purchaser expressly amends the claim to include that party.
Accordingly, where the purchaser chooses to pursue the claim solely against the developer-seller—on the basis of the developer’s clear contractual liability—and does not sue the contractor, architect, or technical architect, no procedural relationship arises that would justify ordering the purchaser to pay the legal costs incurred by those professionals.
The allocation of legal costs is particularly significant in these circumstances. If the court finds that the joinder of the technical professionals was unjustified, or if the developer is unsuccessful in the proceedings, the developer will generally be required to bear the legal costs generated by the professionals whose participation it requested, including the fees of their lawyers, court representatives (procuradores) and, where applicable, expert witnesses. Since the purchaser has asserted no claim against those professionals, the purchaser should not be required to bear those costs, even where the principal claim is only partially successful.
Ultimately, at first instance, consumers bringing claims for defects in newly built homes are protected against procedural strategies designed to complicate the litigation or shift financial risks onto them without their consent. The underlying principle is straightforward: the party who seeks the involvement of third parties for its own benefit should bear the financial consequences of that decision.
At Plana Ventura Garcés, we advise clients both on the preparation of construction defect claims and on developing the most effective litigation strategy to protect purchasers’ interests while minimising unnecessary financial risks throughout the proceedings. We also assist with the drafting and review of real estate contracts, helping clients anticipate potential contingencies and strengthen their legal position should litigation ultimately become necessary.
