Geotechnical Survey & Infilled Land

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AndaluzCampo
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Geotechnical Survey & Infilled Land

Postby AndaluzCampo » Sat Aug 29, 2009 7:32 pm

Having been told by the estate agent that our builder/developer lets his land settle before building, we bought a house which stands on partially infilled land, with a steep sloping 'cut out' hill behind the house and a steep slope in front. Only later did we discover from our neighbours on the campo development that the builder cut out the hillside platform and started to build the house only 2 or 3 months later.
We have had an ongoing problem with the hillside behind the house collapsing in avalanches - every time there is heavy rain. The 3 meter retaining wall behind the house with a fence on top, erected by the builder, is now proving totally inadequate as the crumbling hillside has piled up and coming over the top of the retaining wall (which is about 1.5 meters from the house).
The builder/developer is accepting no liability whatsoever for the crumbling hillside or the inadequate wall or any damage or danger to house and inhabitants.
We have engaged an architect who asked if a geotechnicall survey was carried out. As far as we know this definitely wasn't done. Is it a legal requirement to have a geological survey carried out by the builder or his architect or for them to take any responsibility for the wall, or the cut out? Or is it just one of those many things that builders here don't have any responsibility for?

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Re: Geotechnical Survey & Infilled Land

Postby Jool » Sat Aug 29, 2009 8:17 pm

If building from scratch all builders should have a geo tech survey done in order to acquire the build licence and then Architect should design foundations and composition of cement to meet these soil structure requirements, to build on infill would not meet any legal or safe building requirements. Do you have a 10 year guarantee? The builder is responsible for the geo tech survey, the architect for the checking the foundations are built to allow for results of geo tech survey and builder is responsible for meeting architects requirements. At the end of the day the Architect has to sign the build off to say it meets legal and building requirements and is as per project ....-I suspect they will try and pass the buck between themselves so a lot depends on the wording of your build contract......

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hillybilly
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Re: Geotechnical Survey & Infilled Land

Postby hillybilly » Sat Aug 29, 2009 8:36 pm

A geotechnical survey is obligatory for all new builds under the Codigo de la Edificicion (CTE DB SE-C). In the past, many builders/developers have "got round" this requirement by auto-promoción as a vivienda unifamiliar. On what contractual basis was your house built? These days a geotechnical survey has to form part of the proyecto.
However, regardless of the letter of the law or whether a "builder/developer lets his land settle before building", no Architect worth his salt should undertake the design of foundations without the benefit of an on-site geotechnical survey. If you try to design foundations without this information it would be like sticking a finger in the air. The ground can take years to settle and most settlement will only take place once the land is loaded i.e. after construction.
However...retaining walls and suchlike are, unfortunately, all too often built with no design at all. Whose land is the hillside? Is there historic evidence of landslips?
I was involved in a similar case earlier this year. The owner claimed under his insurance and left it to the various parties to fight it out amongst themselves as to who was to blame and who would pay.

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Re: Geotechnical Survey & Infilled Land

Postby AndaluzCampo » Mon Aug 31, 2009 4:31 pm

Thanks Jool and hillybilly for your replies.
We have a 10 year build guarantee, apparently on the house only.
The house was built in 2006, licence granted April 2006. We bought early 2007.
We bought from an estate agent as a completely finished new build with almost 5,000 square meters of land. It was described as a luxury house on a small development in the countryside.
We don't know what 'auto promocion' is, but it is described in the escritura as 'a vivienda unifamiliar' .
The land was owned by the builder/developers family and was divided up, and ours now forms part of what is described in the escritura as a finca, rustica of suerte de riego.
With regards to the architect 'signing off' the build, would this paperwork be part of the 'completion pack' that our abogado would have obtained, and is it different from the 'licence de primera occupacion' from the ayuntamiento. Does the ayuntamiento have any role in inspection?
Does it sound like our builder has got round the legal need to have had a geo-tech survey carried out?
We own the 15 meter high hillside behind us, which is collapsing with every rain fall (apart from a small 2-meter irrigated strip with fruit tree running along the top (which the developer owns) and the communal road to the properties).
We did try our insurance company, Liberty Seguros, as one of the first steps. Their assessors did come out to inspect, however later informed us that the damage of this nature, caused by softening of ground, and quoted paragraphs, was excluded from cover.

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Re: Geotechnical Survey & Infilled Land

Postby Jool » Mon Aug 31, 2009 5:10 pm

When you say you tried Liberty Seguros do you mean that they are your normal house insurers or the insurance company who provided the 10 year build guarantee? If not then contact the 10 year guarantee insurers.

You should have a copy of all the paperwork your solicitor demanded prior to completion...do you have that? You need a copy of the fin de obra signed off by the Architect for your records.......

This sounds like a familiar cobbled together scenario.....what does your nota simple say?

The town hall has nothing to do with structural inspections only with comlpiance with planning as opposed to building law where licence prim occupacion is concerned.

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Re: Geotechnical Survey & Infilled Land

Postby hillybilly » Mon Aug 31, 2009 5:38 pm

AndaluzCampo wrote:Thanks Jool and hillybilly for your replies.
We have a 10 year build guarantee, apparently on the house only.
The house was built in 2006, licence granted April 2006. We bought early 2007.....
We don't know what 'auto promocion' is, but it is described in the escritura as 'a vivienda unifamiliar'
If your house has a 10 yr build guarantee and it was built in 2006 I would be very surprised if there was no geotechnical survey. In the past, builders who owned plots of land and wanted to build on them used to auto-promote i.e. say that the house wass a one-off build for their own personal use, and in doing so were able to get round the requirement for decennial insurance (and hence a geotechnical survey).

However, on reading your original post again it seems the real problem is with the hillside behind. (I assume there are no problems with the house itself?). So, the retaining wall should have been designed to retain the land behind (and drain). From what you say, it doesn't sound as if the wall has actually failed in any way and so could be deemed to be doing the job for which it was built. What you seem to be suffering are "out-of-the-ordinary" landslips (of which there were many last winter). There was probably never any provision or intention in the original building works to actually stabilise the hillside, either because this would have been too expensive or because it was deemed unlikely to slide or was simply not considered at all. If you have a search back through old posts you will find a few that deal with slope stabilisation. Until damage is actually caused to the house (and maybe the retaining wall (depending on the terms of your buildings insurance of course), your insurers won't be interested and neither will the underwriters of the decennial insurance until a structural failure occurs.

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Re: Geotechnical Survey & Infilled Land

Postby AndaluzCampo » Mon Aug 31, 2009 9:13 pm

The problem with the crumbling, tumbling hillside did not just occur with this year's heavy rainfall, it happened every single time it rained since we bought the house. 6 months into our first year, large rocks came tumbling and crashing down onto the retaining wall and piled up and bulged through the wire fence on top of the retaining wall. We brought in our estate agent and builder, who said we could put some plants up and pay him to build a wall at the side (where the rocks had landed by the front door).
We didn't get the extra side wall built, and this year, with the heavy rains, the whole corner of the rocky hillside (where the builder cut out to make space for the house) completely collapsed in an avalanche outside our front door. And the new wall would have collapsed with it!
The threat now is that the retaining wall is filled to the brim with avalanched rocks and soil from above. It cannot hold back any more spillage - this now has no where to go but over the wall. Experts have said that to dig out the area behind the wall will cause the hillside to continue to collapse and the communal road above could start to end up in our house!
The problem with 'waiting on a disaster to happen' for 'insurance purposes' is that - with regard to house insurance, any damage caused by 'landslides', damage by rainfall, softening of ground etc, is, we are told, excluded from cover.
With regard to the 10-year house build insurance, it is only the house, in terms of the construction that is covered. Apparantely, not any damage caused by our 'garden' hillside behind us.
The retaining wall doesn't seem to be part of the architect's project. It is now full to the brim, holding back hundreds of tons of fallen soil and rock, with no drainage facilities whatsoever. In addition, another builder has pointed out that the developer built the road above sloping out and down, with channels every half meter for rain water to pour down our hillside. The builder states that this little bit of water would not affect us in any way! Help!

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Re: Geotechnical Survey & Infilled Land

Postby hillybilly » Mon Aug 31, 2009 10:10 pm

You need to find out who designed the retaining wall and carried out an assessment of the hillside it retains.
Unless you can get either the Architect or the builder to accept any form of responsibility e.g. that their designs/works (buildings, walls, roads) have caused/exacerbated the landslips (which, pardon the pun, will be an uphill struggle) then your only option is to have slope stabilisation and drainage works carried out yourself.
You can't move the house, you can't remove the hillside and you can't prevent the natural inclination of water and earth to want to move downhill. Next time, don't buy a property at the bottom of a hillside :wink:

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Re: Geotechnical Survey & Infilled Land

Postby AndaluzCampo » Tue Sep 01, 2009 3:22 pm

Thanks again for your replies. I am following up the paperwork.
Does it seem likely that the insurers for the 10 year build guarantee would underwrite a property which is build on partial infilled land, without asking for a copy of the geotechnical report, or at least asking whether one was carried out?
And, would a guarantee without one be worthless?
Regarding the retaining wall, wouldn't the insurance company want to know if one was built/required and as you mentioned, what specification was used and why, for what purpose?
(from what we can make out the builder says he built it according to what his architect told him to do, and the architect appears to be saying that no wall was ever in the 'project')
Regarding communal roads on private developments in the campo, (since the water from here appears to be compounding problems) does anyone know who 'owns' them and or is responsible for any works/repairs/alterations to them?

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Re: Geotechnical Survey & Infilled Land

Postby hillybilly » Thu Sep 03, 2009 5:25 pm

It is (and has been since May 2000) obligatory (according to the letter of the law) to have completed an "estudio geotécnico" on any new build requiring decennial insurance. The questionnaires that have to be completed to contract such insurance all have a section requesting such info. Of course, there have been (and no doubt always will be) ways to get around this requirement maybe by e.g. submitting a site investigation report from AN Other site or "having contacts"...
With regards to the retaining wall, somebody at some point must have decided one was required in that spot and somebody must have decided on its design...
Have you actually had sight of the decennial insurance policy that your property has?

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Re: Geotechnical Survey & Infilled Land

Postby AndaluzCampo » Tue Sep 08, 2009 7:05 am

Thanks hillybilly
I am waiting to hear from the abogado who dealt with our house purchase, regarding Fin de Obra and 10 yr Build Guarantee Insurers. The 10 year cover was one aspect of several that I specifically asked about at the purchase stage. I was assured that we had cover for this. So we'll see ...

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Re: Geotechnical Survey & Infilled Land

Postby AndaluzCampo » Fri Sep 11, 2009 3:38 pm

Geotechnical Surveys - we have been advised by an Architect that they did not need to be carried out by law untill 2007. (our house project was completed in 2005).
Maybe the law in 2000 stating that a Geotechnical Survey was required is only applicable with reference to obtaining 10 year build insurance? (Hillybilly and Jool may be interested in this).

10 year build insurance. It appears that we may not have this after all. What we thought we had might infact turn out to be a '10 year build guarantee' provided by the builder, but not underwritten by any insurance company. Presumably this got round the need for a geotech survey. But it's not very reassuring!

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Re: Geotechnical Survey & Infilled Land

Postby hillybilly » Fri Sep 11, 2009 5:47 pm

Correct. As I said above:
hillybilly wrote:It is (and has been since May 2000) obligatory (according to the letter of the law) to have completed an "estudio geotécnico" on any new build requiring decennial insurance.
You said your house had this cover.
It has also been the law for the same amount of time for the Promotor to provide decenal insurance (underwritten) at no charge to the purchaser. The only way builders used to "get round" this was, as I said before, by autopromoción i.e. the house was for their own personal use. It should have been pointed out to you at time of purchase (by builder/estate agent/lawyer/surveyor) that the house did not have the benefit of decenal insurance because it affects its value. In fact I think there maybe something in law about a house built under the autopromoción umbrella not being able to be sold on for 10 years...could be wrong!

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Re: Geotechnical Survey & Infilled Land

Postby El Cid » Fri Sep 11, 2009 6:01 pm

hillybilly wrote: In fact I think there maybe something in law about a house built under the autopromoción umbrella not being able to be sold on for 10 years...could be wrong!
That's quite right Hilly.

We built our house as promoter/developer. We had all the surveys/concrete tests done but did no go ahead with the actual insurance as we were advised that, as we had all the paperwork (very expensive), we could always get the insurance at a future date.

It quite clearly says on the escritura that we cannot sell the property unless the purchaser waives his rights to the 10 year insurance (or we retrospectively provide it).

Sid

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Re: Geotechnical Survey & Infilled Land

Postby hillybilly » Sat Sep 12, 2009 8:12 am

Thanks for confirming that Sid!

So, AndaluzCampo, you've now got 2 problems.
AndaluzCampo wrote:10 year build insurance. It appears that we may not have this after all. What we thought we had might infact turn out to be a '10 year build guarantee' provided by the builder, but not underwritten by any insurance company.
And you've ended up in this situation despite
AndaluzCampo wrote:I am waiting to hear from the abogado who dealt with our house purchase, regarding Fin de Obra and 10 yr Build Guarantee Insurers. The 10 year cover was one aspect of several that I specifically asked about at the purchase stage. I was assured that we had cover for this.
Were you asked, as Sid has mentioned above, to waive your right to the decenal insurance when you signed for the house? It sounds as if your lawyer has not done their job, surprise, surprise. You mentioned that your house was part of a small development and so it was clearly not autopromoción, it was always destined for sale to the public and so the builder has broken the law by not providing the 10yr insurance.

With regards to the wall/hillside situation, it's now September, winter rains are looming so you need to do something now to prevent possible damage occurring to your property. If the space behind the retaining wall is already full to the brim then any further debris that comes down will go over the top and into your house. IMHO you have no option but to remove the boulders etc at least to safeguard your house for this winter. Then you need to stabilise the slope and I'm afraid that this is something that you are going to have to undertake/pay for yourself.

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Re: Geotechnical Survey & Infilled Land

Postby AndaluzCampo » Mon Sep 28, 2009 3:17 pm

Decennial Insurance - We did not waive our rights to this verbally; quite the contrary we specifically asked if we had it at the time of purchase. There is nothing, as far as we know, on our Escritura to say that we have waived our rights to this. Our abogado who did the purchasing has requested the Registered New Build Declaration Title Deed, apparently an obligation by the builder, where details are contained of the Fin de Obra and the Decennial Insurance. You have stated that this insurance on new builds has been required by law since 2000.
However, do you know whether the promotor could in fact be the insurance provider himself, ie his own company at his own risk?

We have commissioned an architect's report. The pathologies make for miserable reading and the solutions more so, in that the estimated costs for the works for making the area safe for the property and the inhabitants, are in the region of 35,000 euros.

Do you know anything about the successes or otherwise of abogados taking the case to court (2 separate abogado companies have said that the fault is that of the builders).

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Re: Geotechnical Survey & Infilled Land

Postby hillybilly » Mon Sep 28, 2009 4:31 pm

AndaluzCampo wrote:do you know whether the promotor could in fact be the insurance provider himself, ie his own company at his own risk?
No. The law states that the insurance policy must be taken out with an insurance company who specialises in decenal insurance. These insurance companies are themselves regulated to ensure adequate risk assessment etc. The law was brought in to protect purchasers in the event of builders going bust etc. as well as to formalise the chain of responsibility in the construction process.
Your lawyer (plus the notary) should have ensured that all the paperwork you mention above was in place BEFORE the final signing. Why is your lawyer only now asking for this? Did you attend the notary or did you give your lawyer POA? Was the purchase contract etc translated for you? (if you needed it to be?). Was your lawyer independent of the builder?
Re taking builders to court, yes it can be successful but can take many years to achieve a successful outcome. All the parties to the contract will try to blame the other and everyone has the right to appeal.

Edit. p.s.
AndaluzCampo wrote:2 separate abogado companies have said that the fault is that of the builders).
Out of interest, what are they saying that "the fault" is?
Last edited by hillybilly on Mon Sep 28, 2009 9:34 pm, edited 1 time in total.

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Re: Geotechnical Survey & Infilled Land

Postby Lavanda » Mon Sep 28, 2009 7:37 pm

Like Sid, we are the promotors of our house build. Our builder is insuring the house against structural defects and other things for the first year. After that it's up to us. We, too, could only sell during the next ten years to a buyer willing to take on a house without the 10 year guarantee. Luckily our house has very deep concrete foundations and structure and is built on stable ground with only a small slope behind. Even so, the rains (and we have hardly had any yet) wash down the soil ...

Have you thought of a specialist to do that steel netting often seen on motorway cuts to keep back your hill? It might be better to do something preventative soon (stating the obvious). Good luck!

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Re: Geotechnical Survey & Infilled Land

Postby AndaluzCampo » Tue Sep 29, 2009 12:40 pm

Decennial Insurance - The Abogado is only now 'requesting it' from the Registry because I have asked to see it! I have also asked if there is a copy of the 'fin de obra' and whether they have any records of a geotechnical report being carried out.
The whole situation has erupted because we've had so much trouble with the land behind us, and the promotor (who calls himself the builder) not being co-operative, in fact exaserbating matters by continuing to drain heavy rain water down over the hill on to the problem area.
We were at the notary with our abogado who we believe was from a professional and independent company. He translated documents verbally into english. Also present was the estate agent and the promotor and his abogado.
We asked about a 10 year guarantee at the beginning of the purchasing stage, as this was important to us, being our only home (not now having one in UK). We were told yes, as it was required by law.
The fault - is that the promotor cut out the area of the hillside in order to build the house and sold it all as a complete package.
Yes part of the solution is steel mesh, but it's such a large and hugely steep area with a now inadequately small
steel reinforced wall at the bottom, at the back of the house, holding back hundreds of tons of the collapsed hillside. (This is also the wall which the architect 'knows nothing about').

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Re: Geotechnical Survey & Infilled Land

Postby hillybilly » Tue Sep 29, 2009 9:45 pm

Well, it's a tangled mess!
You may have a case against the builder for not providing the decenal insurance as required by law.
You may have a case against the lawyer for not ensuring the above was in place.
The decenal insurance issue is, however, not relevant to the hillside problem, so is a bit of a red herring, albeit an important one!
You may have a case against the architect for inadequate risk assessment of the site/hillside.
You still need to find out who carried out the risk assessment of the hillside (if it wasn't the architect) and designed the retaining wall.
All I would say is that if it does "get legal" make sure that you have a competent, trustworthy and independent professional team (architect/engineer and lawyer) on your side to present the "right" case, not one that could be thrown out of court. IMHO the cutting out of the hillside to provide the building site platform isn't the problem...it's what was done (or not done) to the hillside afterwards to safeguard your property...so it needs to be proved without doubt that what is now happening to the hillside could have been foreseen and should have been designed against.
None of this will be sorted out in the short term and in the meantime you need to safeguard your house. If it were me I'd be putting the builder/promoter on written notice that you consider them responsible and that you expect them to undertake whatever works are necessary to safeguard your property at their expense and that if they don't, you will have no option but to undertake the works yourself by engaging another team and that you will be charging them for any costs you incur. To hedge my bets I'd also be putting the remainder of the original build and legal team (i.e. the project architect and your lawyer) on written notice regarding their own failures of duty.
Keep us posted!


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