Latent defects in a property: what the seller should know before signing

What it means to be liable for latent defects when selling a property

Before signing the sale and purchase agreement, you must be clear about one essential point: in the sale of a property, it is not only the physical condition that matters, but also the actual state of the property. The Civil Code establishes that the seller is liable for hidden defects that render the property unfit for the use for which it is intended or reduce that use so significantly that, had the buyer known of them, they would not have bought it or would have paid a lower price. In addition, the seller is not liable for obvious defects or those that were in plain sight, nor for those that were not if the buyer is an expert who, by virtue of their trade or profession, should easily have known about them. In the wording provided, this appears in article 1484 of the Civil Code BOE, art. 1484-1487.

For the seller, this has a very clear practical consequence: it is not enough to believe that the property is “sold as seen”. If there is a significant, hidden and pre-existing defect, liability may arise even if you did not notice it. And if you also knew about the problem and did not disclose it, the risk increases.

Useful steps before signing:

1. Inspect the property with a realistic eye, not just visually.

2. Gather invoices, reports or previous repairs that explain the condition of the installations, damp, roofs or structural elements.

3. Identify which defects are visible and which might be considered hidden.

4. If in doubt, record any known incident in writing before completing the sale.

When the seller is liable and when they are not

The key issue is not whether any damage exists, but whether that damage meets the conditions of article 1484. Not every sign of normal wear and tear, use-related deterioration or defect visible during a viewing can amount to a latent defect. For this type of liability to arise, the defect must be genuinely hidden and, moreover, sufficiently significant in relation to the property’s intended use.

Article 1474, also included in the sources provided, connects with this obligation by stating that, under the duty of warranty, the seller is liable for latent defects or hidden flaws in the thing sold BOE, art. 1474. Article 1485 adds that the seller is liable for the warranty against latent defects or hidden flaws even if they were unaware of them, except in the exceptional case provided for in that same provision. In other words, the seller’s ignorance does not always remove the legal problem.

It is worth distinguishing three scenarios:

- **Visible defect or one that is easily apparent**: this does not normally give the buyer the same protection.

- **Hidden defect not known to you**: liability under the duty of warranty may exist if the legal requirements are met.

- **Hidden defect known and not disclosed**: the risk for the seller is greater, because article 1486 allows the buyer to choose between withdrawing from the contract or seeking a reduction in the price, and, moreover, if the seller knew of the defect and did not disclose it, there may be compensation for losses if rescission is chosen.

Practical advice: if there is recurrent damp, a structural fault, an issue with the installations or a pending repair, do not rely on “the buyer will see it”. It is better to explain it in writing and leave a record in the contract or in the preparatory documentation.

What happens if you knew about the defect and did not disclose it

This is where the greatest risk for the seller lies. Article 1486 of the Civil Code, according to the text provided, states that the buyer may choose between withdrawing from the contract, with repayment of the expenses they paid, or obtaining a proportional reduction in the price, as assessed by experts. It also adds that, if the seller knew of the hidden defects and did not disclose them, the buyer will have the same option and, in addition, damages may be awarded if rescission is chosen BOE, art. 1486.

That is why, before signing, the most prudent recommendation is not to conceal things in order to “avoid problems”, but to organise the information. Transparency, properly documented, reduces the scope for conflict and prevents a later disagreement from becoming a more serious claim.

Recommended practical actions:

1. Draw up a list of known incidents: leaks, cracks, electrical faults, heating problems, damp, windows and doors, etc.

2. Distinguish between a repair carried out and a problem resolved; they are not the same.

3. If there are repairs pending, state this expressly.

4. Avoid broad statements such as “everything works perfectly” if you cannot support them.

Common mistake: thinking that simply handing over the property and the keys is enough to be free of responsibility. If the defect was hidden, significant and pre-existing, delivery alone does not eliminate a possible claim.

How to prepare before signing to reduce risks

The seller’s best protection is careful preparation. This is not about “covering yourself” with vague wording, but about selling with sufficient, consistent information. If the property has known issues, the sensible approach is to deal with them expressly before signing. If it does not, it is still advisable to keep a record showing that you have not concealed relevant information.

Follow this simple method:

1. **Review the documents**: title deed, land registry extract, bills, minutes or reports explaining the condition of the building or the property.

2. **Identify material defects**: damp, old installations, cracks, leaks, doors, windows, drainage or roof.

3. **Check what is visible and what is not**: what the buyer can see on a viewing is not assessed in the same way as a hidden defect.

4. **Disclose in writing** anything you know with precision.

5. **Do not promise repairs** that you are not going to undertake or that cannot be completed before signing.

If you need support in assessing how to present the property in a specific sale, you can request guidance at /valoracion-vivienda-madrid or contact the team at /contacto.

What should be made clear at signing and which exceptions are worth watching

At signing, the issue is not only the price. It also matters how the property’s condition is described, what statements you make and what warnings are included in the contract. If there is a known defect, the safest way to reduce conflict is to identify it, without exaggerating or downplaying it.

Bear in mind these exceptions and nuances:

- Not every defect gives rise to a latent defect claim.

- Visible defects are not treated in the same way.

- If the buyer is a professional or expert and should have known about the defect, the analysis changes.

- If the defect did not exist before the sale, we are not dealing with the same situation.

- If there is a different and valid specific agreement, it will need to be carefully analysed within the applicable legal framework.

It is also important to remember that this content is general guidance for property owners. If the property has a history of repairs, claims, leaks, construction defects or issues relating to the building community, the analysis must be carried out case by case. The legal position will depend on the nature of the defect, whether it was hidden or visible and what you knew at the time of sale.

In short: before signing, a prudent seller does not try to buy time by concealing problems, but instead reviews, documents and discloses. That is the most effective way to sell with less risk and greater legal certainty.