Water damage in a Spanish flat: who pays and how to claim

First: where is the water coming from

The stain shows up on the bedroom ceiling, or on the wall facing the courtyard. Before you argue with anyone, one question settles everything else: is the water coming from a common element of the building, or from a private installation?

Ley 49/1960 de Propiedad Horizontal, the Spanish law on shared buildings, splits the property in two. Elementos comunes are the structure, the roof, the facade, the courtyards and the main soil stacks, everything that serves several owners at once. Elementos privativos are the pipes, drains and appliances that serve one flat only, from the stopcock inwards.

The line is usually obvious: the stack running down the service shaft and collecting water from several floors is common, the branch that feeds your kitchen is yours. When it is not obvious, a plumber or a loss adjuster decides, not the owners' meeting.

Who is liable, case by case

The water comes from a common element. The comunidad de propietarios, the owners' association, is liable. Article 10.1.a) of the Ley de Propiedad Horizontal requires the works needed to maintain the building properly and to comply with the duty of conservation. That is a legal duty, not something the meeting can vote down: the meeting only decides how the cost is split and when it is paid.

The water comes from a neighbour's flat. The neighbour is liable. Article 9.1.b) requires every owner to keep their flat and their private installations in good condition so as not to harm other owners, and to pay for damage caused by their own carelessness. Where there is fault on top of that, article 1902 of the Código Civil, the general rule on non-contractual liability, comes into play.

The water comes from your own installation. You pay, and you also answer for whatever you soaked downstairs. It is the most awkward scenario, especially when the flat has been shut for months.

One point people forget: the fact that water came from a common element does not make the association liable for the whole loss. If your window was in poor condition, or you left a rotten sill untouched for years, the courts split the bill.

Insurance does most of the work

Almost no water damage case reaches a courtroom. It gets settled between three policies: yours, the association's and the neighbour's. Notify every insurer that might be involved, even if who pays what is still open.

Ley 50/1980 de Contrato de Seguro sets the clock.

• Seven days to notify. Article 16 requires you to report the loss to the insurer within seven days of learning about it, unless your policy gives you longer. Report it even if you do not yet know how bad it is.
• Forty days to the first payment. Article 18 requires the insurer to pay, within forty days of the notification, the minimum amount it may owe, while the rest is still being assessed.
• Two loss adjusters if you disagree. Article 38 lets each side appoint its own adjuster and, if the two disagree, have a third one appointed. The report can be challenged within thirty days by the insurer and within one hundred and eighty days by you.
• Interest if they drag their feet. Article 20 penalises the insurer's delay, and two years after the loss the annual interest cannot fall below 20%.

Keep everything from day one: dated photos, the claim number, your messages with the building manager, the invoice from the plumber who traced the leak.

Time limits: this is where claims die

This is where most money is lost, because the limit changes depending on who you are claiming from.

• Against a neighbour or a third party, under article 1902 of the Código Civil: one year, per article 1968.2.º. The clock does not start on the day the stain appears, but when the claim can actually be brought, meaning when you know the damage and you know who is answerable for it (article 1969).
• Against your owners' association, as an owner, for damage caused by failure to maintain common elements: five years, the general limit in article 1964. The Tribunal Supremo settled this in judgment 491/2018 of 14 September. The reasoning: maintaining common elements is a statutory duty, not a wrongful act, and the period for claiming the consequences of a breach cannot be separated from the period for demanding performance.
• If you are a tenant rather than an owner, it changes. Your claim against the association is purely non-contractual and drops back to one year.
• Against your own insurer: two years for property insurance, five for personal insurance, under article 23 of the Ley de Contrato de Seguro.

There is also a distinction that rescues claims that look time barred. Spanish case law separates permanent damage from continuing damage: while the leak is still active and the loss keeps growing, the period does not start. It starts only once the leak is stopped and the final result can be measured.

What to do, in order

1. Shut off what can be shut off, and photograph everything before you dry anything.
2. Notify your home insurer within seven days.
3. Write to the administrador de fincas, the building manager, by a method that leaves a record: email with a read receipt, or a burofax if there is already friction. Describe the damage and ask for the source to be traced.
4. Ask for the matter to go on the agenda of the next owners' meeting and to be recorded in the minutes. The acta proves the association knew, and from what date.
5. If nobody moves, commission a loss adjuster's report or a leak detection company. It costs a few hundred euros and it is what holds the claim up.
6. Send a burofax setting a firm deadline. On top of the pressure, it interrupts the limitation period.
7. Sue if you have to. It goes to juicio verbal or juicio ordinario depending on the amount.

When the flat is in Spain and you are not

This is where an Italian owner with a place on the coast runs into an extra problem.

The empty home policy. Many home policies taken out as a main residence carry occupancy clauses: if the property stays empty beyond a set number of consecutive days, and that number varies a lot between insurers, water damage cover is cut back or the insurer can terminate the contract. If the flat is a second home, tell the insurer and have it written into the policy. A loss discovered three months later, with the parquet lifting, is exactly the scenario those clauses were drafted for.

An address for service. Article 9.1.h) of the Ley de Propiedad Horizontal requires every owner to give the association's secretary an address in Spain for summonses and notifications. If you do not, notices left at the flat itself are valid, and you find out about everything late, including the meeting that approved the levy to fix the roof.

Representation at the meeting. Article 15.1 allows you to attend through a voluntary representative, and a document signed by the owner is enough to prove it. A power of attorney to the building manager, a trusted neighbour or your lawyer in Spain is worth more than three flights a year.

Where the case is heard. In Spain, not in Italy. The defendant, whether the association or the neighbour, is domiciled in Spain, and the damage happened in Spain. Regulation (EU) 1215/2012 points to the same place by both routes, the defendant's domicile and the place where the harmful event occurred. An Italian judgment about damp in Alicante is worth nothing.

When the association refuses to move it is almost always about money: replacing the stack means a special levy, and nobody likes a levy. Worth remembering, then, that the necessary works in article 10.1.a) do not depend on the meeting approving them. If the meeting votes against fixing the roof, that resolution does not turn the work into an optional extra.

If you have any doubts, Riondato & Partners is here to help

For over 45 years we have worked with Italian and Spanish clients on property and civil liability matters on both sides of the border, and we know how a water damage claim moves between an owners' association, two insurers and an owner who lives abroad. If you have damp in your home in Spain and you are not sure who to claim from or by when, get in touch and we will look at it with you.

Sources

• Ley 49/1960 of 21 July on horizontal property (consolidated text), BOE
• Ley 50/1980 of 8 October on insurance contracts (consolidated text), BOE
• Código Civil (consolidated text), BOE
• The limit for claiming damages from the association over common elements is that of art. 1964 CC (STS 491/2018), Iustel
• Damp damage, a tenant's claim against the association and the one-year limit, IDIBE
• Regulation (EU) 1215/2012 on jurisdiction in civil and commercial matters, EUR-Lex