Who is responsible?

Information and questions about the Law in Spain and Andalucia.
aidan
Andalucia.com Amigo
Posts: 104
Joined: Wed Jun 09, 2004 7:58 pm
Location: Beckenham Kent/ Alcaidesa

Who is responsible?

Postby aidan » Thu Aug 20, 2009 10:46 am

Hi, My pool has shifted slightly, it seems more than settlement as there is a diagonal hairline crack at 45degrees from the deep end.
I have been advised there is no doubt the Aparajador has to take responsibility and we should claim on his insurance, but of course he has visited and said it is the builders fault, he said that his calculations were correct.
Can anyone give me any advice?
Thanks.

Jool
Andalucia Guru
Posts: 4915
Joined: Fri May 18, 2007 5:56 am
Location: Coastal Almeria

Re: Who is responsible?

Postby Jool » Thu Aug 20, 2009 10:51 am

Who provided the guarantee and insurance for the pool?

User avatar
hillybilly
Andalucia Guru
Posts: 2939
Joined: Thu Oct 07, 2004 12:53 am
Location: Estepa, Sevilla

Re: Who is responsible?

Postby hillybilly » Thu Aug 20, 2009 8:19 pm

What was the chain of responsibility on the job? Did you contract a pool builder, who then employed the aparejador? Or did you employ both directly?

The usual procedure would be to advise (in writing of course) the pool builder (who I assume guaranteed the pool?) that the pool is showing defects and putting them on notice of your expectation that they will investigate the problem and carry out such repairs as are necessary to render the pool fit for purpose, at no expense to you. (This is of course also assuming that you yourselves have not done anything to cause the problem yourselves eg dig down below the pool, flood the area etc etc).

The builder will of course deny any responsibility and will blame the designer but it should be between the builder and the designer to fight out over who is to blame and who is to pay.

If you employed the designer direct then the procedure could be as above but in reverse.

If you employed both builder and designer direct then best to blame both at this stage :wink:

If you have no guarantee or a general lack of paperwork then you will have a problem getting anyone to take notice.

As an aside, aparejadores don't usually assume responsibility for design, that should be the duty of an architect. Are you sure the aparejador designed the pool and was qualified to do so?

julian
Andalucia Guru
Posts: 5976
Joined: Fri Jul 02, 2004 8:38 pm
Location: marbella

Re: Who is responsible?

Postby julian » Thu Aug 20, 2009 8:31 pm

the guarantee I have from the pool builder clearly states that they are not responsible for any damage caused by earth movement.

aidan
Andalucia.com Amigo
Posts: 104
Joined: Wed Jun 09, 2004 7:58 pm
Location: Beckenham Kent/ Alcaidesa

Re: Who is responsible?

Postby aidan » Thu Aug 20, 2009 8:37 pm

Thanks. I am not sure who guaranteed the pool. Any guarantee from the builder would not be honoured as he is Bankrupt and running from the authorities. My architect designed the pool, the aparajadore did the calculations and the builder built the pool, using a seperate firm to tile it.
I am speaking with my lawyer and lets see what he comes back with.
The pool is built on land fill not far from a retaining wall so I guess the earth may have moved under such pressure.

julian
Andalucia Guru
Posts: 5976
Joined: Fri Jul 02, 2004 8:38 pm
Location: marbella

Re: Who is responsible?

Postby julian » Thu Aug 20, 2009 8:41 pm

if it is on landfill the earth may have moved as it settled after the winters heavy rain.
how old is the pool??

katy
Andalucia Guru
Posts: 11319
Joined: Thu Jun 24, 2004 3:45 pm

Re: Who is responsible?

Postby katy » Thu Aug 20, 2009 9:47 pm

whatever goes wrong in Spain you are *beep* as no-one will ever be responsible except yourself.

User avatar
hillybilly
Andalucia Guru
Posts: 2939
Joined: Thu Oct 07, 2004 12:53 am
Location: Estepa, Sevilla

Re: Who is responsible?

Postby hillybilly » Thu Aug 20, 2009 9:56 pm

aidan wrote:The pool is built on land fill not far from a retaining wall so I guess the earth may have moved under such pressure.

All pool builds should involve a proper site investigation to determine the ground conditions so that the pool's foundations can be designed. This would be especially important if it was known that the ground was filled and, I'm guessing, with an underlying slope to the natural ground. Was a site investigation carried out? If not, why not? And if not, on what basis did the architect/aparejador design the pool's foundations? Impossible to do correctly without this info!
Even if the aparejador did the calculations, ultimately it is the Architect who carries the can because part of his responsibility is to check the calcs.

julian
Andalucia Guru
Posts: 5976
Joined: Fri Jul 02, 2004 8:38 pm
Location: marbella

Re: Who is responsible?

Postby julian » Thu Aug 20, 2009 10:13 pm

oops..I never had a site investigation..proper or otherwise :oops:

still, after 7 years with no problems I hope the pool is pretty much in the place it is going to stay in now...having watched it being built I think it is so strong that it is holding the whole house in place !!!

I tend to trust a proper specialist pool builder to know how to build a pool more than architects etc

aidan
Andalucia.com Amigo
Posts: 104
Joined: Wed Jun 09, 2004 7:58 pm
Location: Beckenham Kent/ Alcaidesa

Re: Who is responsible?

Postby aidan » Thu Aug 20, 2009 10:30 pm

I just take it for granted that I am about to get shafted again.
I paid all these jakals top dollar to do their job because I did not know the ropes and wanted to be 100pct compliant.
II paid extra for a Geological survey early on for the villa not sure about the pool. The architect may have checked the calculations but what happens if the builder did not follow his instructions I thought the aparajadore was responsible to check the work was carried out to the letter.
I pray this time my lawyer will be able to get a result as he was unable to in suing the bankrupt builder.
Will keep you posted, thanks for the comments.

User avatar
hillybilly
Andalucia Guru
Posts: 2939
Joined: Thu Oct 07, 2004 12:53 am
Location: Estepa, Sevilla

Re: Who is responsible?

Postby hillybilly » Fri Aug 21, 2009 7:59 am

The Architect's stamp and signature should be all over the pool documents, drawings, calcs, proyecto. An aparejador is not authorised to do this. Their usual job is the checking of work on site so yes, they are supposed to check that the builder has built the pool in accordance with the design. There should be records ie work in progress photos at the very least.
If you had a site investigation on the plot the house was built on then it's possible that they extrapolated the geological info from this. It's not recommended tho because ground conditions can vary widely within a few metres. Particularly not recommendable if the underlying land was sloping.
If both the Architect and the aparejador maintain that there is nothing wrong with their design, then the problem will lie with the construction i.e. workmanship or materials. In which case the builder and the aparejador are at fault.
In cases like this you just have to start the ball rolling with a claim against someone and let them fight it out amongst themselves. They will probably come up with a 3 way split of blame/recompense.
Edit: sorry just remembered that you said the builder is no longer trading so it's now going to be up to the design/supervision team to prove that they fulfilled all their obligations and that any problem that has now come to light was beyond their control/remit. Did you specifically instruct the architect/aparejador to supervise the site works on a regular basis?

fljordan
Andalucia.com Amigo
Posts: 62
Joined: Wed May 07, 2008 8:04 am

Re: Who is responsible?

Postby fljordan » Fri Aug 21, 2009 9:10 am

hillybilly wrote:An aparejador is not authorised to do this

Section 2 of 'Ley 12/1986, de 1 de abril, sobre regulación de las atribuciones profesionales de los Arquitectos e Ingenieros Técnicos' (On Architects and 'aparejadores') provides the functions of 'aparejadores which include to design projects of minor works such as construction of swimming pools without any intervention of an architect.
In addition a Town Hall only requires aparejador to obtain planning permission for swimming pools. It is not necessary an 'arquitecto'

aidan
Andalucia.com Amigo
Posts: 104
Joined: Wed Jun 09, 2004 7:58 pm
Location: Beckenham Kent/ Alcaidesa

Re: Who is responsible?

Postby aidan » Fri Aug 21, 2009 12:09 pm

The pool has had a rainy season and a dry season. It was built on a sloping plot close to a retaining wall.
Aparajadore denying any resonsibility, in hands of Lawyer now. Position can be seen in these photos and you may spot the difference in levels between deep and shallow end 1 tile in 10 metres but worse is 1 tile between to sides of shallow end 5 metres.



http://picasaweb.google.co.uk/aidanagne ... amera0809#

User avatar
murbisa
Resident
Posts: 773
Joined: Sat May 24, 2008 11:43 pm
Location: Cartama & Cardiff

Re: Who is responsible?

Postby murbisa » Fri Aug 21, 2009 1:50 pm

Our pool had similar problems. Ground moved as our land is on 2 levels. We have since built a high retaining wall to make sure it doesn't happen again.
We had an American firm out who wanted 10,000 euros to line the pool!! I was not prepared to put a liner in the pool nor pay that sort of money, so they repaired the crack but did say they wouldn't guarantee it.
It cracked again and we got a structural engineer out who repaired it properly and for a lot less than the liner would have cost. Never had a problem since. That was about 5 years ago. Our pool isn't level either - dips on one corner. I always say builder was drunk when he built it :lol:

Our house was 2 years old when we bought it so couldn't blame anybody, although it was owned by a builder who originally built it for himself. He has a good reputation as a builder and I must say we have no damp, no mildew etc. One of the dryest houses I have ever lived in.

User avatar
DavidSearl
Andalucia.com Amigo
Posts: 191
Joined: Thu Aug 13, 2009 5:47 pm
Location: Mijas

Re: Who is responsible?

Postby DavidSearl » Fri Aug 21, 2009 3:08 pm

FROM DAVID SEARL

I have nothing to add to this one. It would be interesting, aidan, to hear what tack your lawyer takes. Again, respectful congratulations to fljordan for his cogent post citing the law.

Best Regards, David Searl
You and the Law in Spain

User avatar
hillybilly
Andalucia Guru
Posts: 2939
Joined: Thu Oct 07, 2004 12:53 am
Location: Estepa, Sevilla

Re: Who is responsible?

Postby hillybilly » Fri Aug 21, 2009 6:10 pm

fljordan wrote:
hillybilly wrote:An aparejador is not authorised to do this

Section 2 of 'Ley 12/1986, de 1 de abril, sobre regulación de las atribuciones profesionales de los Arquitectos e Ingenieros Técnicos' (On Architects and 'aparejadores') provides the functions of 'aparejadores which include to design projects of minor works such as construction of swimming pools without any intervention of an architect.
In addition a Town Hall only requires aparejador to obtain planning permission for swimming pools. It is not necessary an 'arquitecto'

Thanks! That's v useful to know!

AndaluzCampo
Andalucia.com Amigo
Posts: 139
Joined: Thu Oct 09, 2008 5:50 pm

Re: Who is responsible?

Postby AndaluzCampo » Tue Sep 08, 2009 7:38 am

I read your post with interest and wish you all the best trying to get so-called 'professionals' to take responsibility for their actions!
We bought a brand new house with pool, and infomed our abogado that, as it was our only home, we wanted to be absolutely sure all the paperwork was in place and everything was legal.
He replied that there was no licence for the pool, and we witheld money at the settlement stage until the licence came through, which we were told had. In the end it was a 'licencia de obras' for an alberca, dated 3 months after we moved in!
Though the house has a pool and this was clearly shown, in what looks like architects drawings the builder used as publicity material, it doesn't look there will be a 'legal' guarantee on our pool either!
Is it comforting to know you're not alone?

julian
Andalucia Guru
Posts: 5976
Joined: Fri Jul 02, 2004 8:38 pm
Location: marbella

Re: Who is responsible?

Postby julian » Tue Sep 08, 2009 7:57 am

andaluz cmpo..what you say doesn´t mean that your pool would not have a legal guarantee from the builder of the pool, but the builder would only guarantee the pool, not the state of the land underneath it.


Return to “You & the Law in Spain”

Who is online

Users browsing this forum: Google Adsense [Bot], Mrs Ancient and 4 guests