Hidden defects in a home you bought in Spain: deadline and how to claim

A hidden defect (vicio oculto) in a home is a flaw that was already there when you bought it, could not be seen and is serious enough that, had you known, you would not have bought it or would have paid less. This guide is for anyone buying a home in Madrid, resale or new: what the law allows you to claim, within what deadline and what to check before signing so you never need to.

The definition is in article 1484 of the Civil Code: the seller is liable for hidden defects that make the home unfit for its use, or reduce that use so much that the buyer would not have bought it or would have paid less. They are not liable for obvious or visible defects, nor for hidden ones if the buyer is an expert who, by profession, should easily have spotted them. And they are liable even if they did not know about them (art. 1485 of the Civil Code).

If you are about to buy, also read what to check when buying a home.

Article 1490 of the Civil Code says these actions «shall be extinguished six months after delivery of the thing sold». Six months from delivery, not from when the defect appears.

Whether the six months of article 1490 is a strict time limit (caducidad) or a limitation period (prescripción) is something case law has not settled in a single way, and we do not take sides here. The difference matters: a limitation period is interrupted, among other ways, by an out-of-court claim by the creditor (art. 1973 of the Civil Code), whereas a strict time limit is not. Since the courts do not interpret it consistently, the prudent course is to treat the article 1490 deadline as a limit that cannot be stretched.

If the defect is so serious that the home is useless for the purpose it was bought for, it has sometimes been claimed as breach of contract (arts. 1101 and 1124 of the Civil Code), with the five-year period that article 1964.2 of the Civil Code gives personal actions without a special deadline. Whether a case fits that route depends on how the court assesses it.

If the home is new, the Building Act (Ley 38/1999, de Ordenación de la Edificación, LOE) also applies. Its article 17.1 makes those involved in the construction liable for material damage appearing in the building within these periods: ten years, for defects in structural elements that directly compromise the building's strength and stability; three years, for defects in building elements or installations that fail habitability requirements; and one year, the builder, for workmanship defects in finishes.

The article 17.1 LOE periods run from acceptance of the works, not from your purchase, and set the window within which the damage must appear. Once it appears, the action is time-barred after two years (art. 18.1 LOE). The developer is jointly liable with the other agents towards buyers (art. 17.3 LOE), without prejudice to the seller's liability under articles 1484 et seq. of the Civil Code (art. 17.9 LOE).

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