INTERVENING AGENTS IN THE BUILDING PROCESS
The Spanish Organic Law of Building (LOE – LEY ORGANICA DE LA EDIFICACIÓN)
1.- Agents intervening in Promotion
Owner and User
The owner is the owner of the work or principals, while the user is the one who -not being the owner- holds either a real right over the third-party building (for example, usufruct right, surface right, etc.), or a personal right of use (for example right of lease, transfer of use, etc.).
Although it is logical that these two figures be referred to as final receivers of the building, their inclusion among the building agents is not considered entirely correct, since the liability regime provided for in the LOE should not be applicable to them, since that their obligations are none other than to keep the building in good condition and its proper use. At the end of the day, they are the ones affected by the damage and, therefore, the ones who exercise the appropriate actions demanding responsibilities when seeing their rights injured.
Obligations of duty of conservation, use and maintenance
The obligations of the owner and those of the user are distinguished , whether or not the owner is.
The obligations of the owners and the communities of owners are:
– Keep the building in good condition through proper use and maintenance;
– Receive, preserve and transmit the documentation of the executed work and the insurance and guarantees that it has.
Thus, according to the Technical Building Code :
- The building and its facilities must be used properly in accordance with the instructions for use, refraining from making use incompatible with the intended use. Owners and users must inform those responsible for maintenance of any anomaly observed in the normal operation of the building.
- The building must be kept in good condition through proper maintenance . This involves performing the following actions:
– carry out the maintenance plan for the building, entrusting a competent technician with the scheduled operations for the maintenance of the building and its facilities;
– carry out the inspections established by regulation and keep the corresponding documentation; AND
– document throughout the useful life of the building all the interventions, whether they are repair, reform or rehabilitation carried out on it, consigning them in the building book.
Users , whether or not they are owners, are obliged to use the buildings or part of them properly , in accordance with the instructions for use and maintenance contained in the documentation of the executed work. The obligations of the users reach up to the proportion agreed in the corresponding contract. In the absence of this, or when there is no clause related to the aforementioned proportion, it corresponds to one or the other in a system of equal distribution of charges and benefits, depending on the nature or not of minor repairs that have such duties, motivated by the daily use of facilities and services.
Therefore, both owners and users are obliged to make adequate and correct use of the building and to maintain said building in good condition.
The owners are also obliged to preserve the building.
Part of the doctrine understands that the obligation to properly use the building in accordance with the instructions for use and maintenance must include the obligation of conservation, since the correct use and maintenance are instrumental obligations of the conservation. The LOE itself refers to the Technical Code of Building (CTE) as a regulatory framework in which to find the basic quality requirements of the buildings and their facilities, which allow compliance with the basic requirements and, consequently, it can be understood that it is there where the boundaries of the obligation to use, maintain and preserve the building are established .
Real estate and Urbanisation complexes
In the case of real estate complexes, this obligation of use and conservation refers to the exclusive elements and also to the common elements. Thus, in the event of modification of architectural elements, facilities or services of the private element, it must be carried out in an appropriate manner to avoid the impairment or alteration of the security of the building, its general structure, its configuration or external state or the damage to the rights of another. owner.
The obligations of each owner, among others, are to respect the common elements and general facilities of the community, whether they are for general or private use of any of the owners, making proper use of them and avoiding, at all times, causing damage or damage.
Regarding the maintenance in good state of conservation of the flat or premises and its private facilities , the scope or measure of this obligation must be understood, to the extent that it does not cause any damage to the community or to the other owners. The law imposes the obligation to compensate the damages that are caused to the community or to the other owners due to their own negligence, either in the private element, in the common elements of the real estate complex or the building subject to the horizontal property regime, or due to negligence of the people for whom he must answer.
In addition to the particular obligation of use, maintenance and conservation of each one of the owners, the community of owners has the duty to carry out the necessary works for the adequate maintenance and conservation of the property and its services, so that it meets the proper conditions. structural, sealing, habitability and safety.
Limits of the obligation of conservation
The duty of conservation has the following limits:
- When the demolition of the building is appropriate. This limit of the duty of conservation does not prevent the imposition of works or repairs of a recognized urgency and provisional and exceptional nature in order to attend to the safety and even health of the building as long as it is inhabited or standing.
- Apart from the previous case, the conservation duty reaches up to half the value of a new construction , equivalent to the original in relation to the constructive characteristics and the useful surface. This quantitative limit of the legal duty of conservation is linked to the concept of economic ruin .
If the duty to maintain buildings in safe, healthy and public adornment conditions is part of the normal content of the right to property , this duty has its limit or moment of cessation in the situation of ruin, because when demolition is appropriate it is extinguished, for incompatibility, the duty of conservation, which is not an obstacle to the imposition of works or repairs of recognized urgency and of a provisional and exceptional nature, in order to attend to the safety and even health of the building as long as it is inhabited or standing.
Breach of the conservation duty
In cases of unjustified non-execution of the works ordered within the period conferred for this purpose, it will be carried out subsidiary by the competent Public Administration or the application of any other formulas of administrative reaction, at its option. In such cases, the maximum limit of the conservation duty may be raised, if so provided by regional legislation, up to 75% of the replacement cost of the corresponding construction or building.
It is, therefore, the regional regulations that are responsible for specifying the measures in the event of non-compliance with the conservation, use and maintenance obligations referred to above. The typical administrative reaction is constituted by the execution orders for the performance of those maintenance and conservation works that are necessary and that it considers appropriate to guarantee the good state of conservation and maintenance of the buildings.
Failure to comply with an order for the execution of works issued by the Administration for the conservation of a building, may lead to the execution by the Administration of the conservation works ordered, with repercussions on the payment of the same to the owner of the property. Likewise, the acting Administration will send to the Property Registry a certification of the corresponding act or acts for its proof by marginal note of the last registration of the domain.
Failure to comply also entails the corresponding administrative sanctions .
Documentation, insurance and guarantees of the building
The owners have the obligation to receive, keep and transmit the documentation of the executed work and the insurance and guarantees that it has.
Broadly speaking, this documentation could be grouped into the following blocks :
- Documentation in relation to the authorship of the works : A list of all the companies and professionals that have intervened in the construction must be delivered in order to identify the building agents.
- Technical documentation :
– buildings plans;
– Instructions for use and maintenance;
– list of materials used in the works;
– Significant orders for the maintenance and upkeep of the building included in the book of orders, assistance and incidents;
– Documents that are legally required or that have been required by the project management, with which the quality of the construction processes, materials, installations or any other element or part of the work is accredited.
- Legal documentation : The owners must be given a copy of the legally required authorizations for the construction of the house and the urban planning certificate or certificate accrediting the urban planning circumstances of the property, with reference to compliance with the reparcelling or compensatory operations, as well as of the license or equivalent act for the use or occupation of the home (license or occupancy certificate), common areas and accessory services .
Registration information and other circumstances regarding the legal status of the property must be delivered or provided to the owner : registration data, charges, statutes and operating rules, if any, of the community of owners, information on service contracts and community and housing supplies.
In case of subrogation of the purchaser of the building in any credit operation with real guarantee on the property of which it is not a party, the information must be especially detailed and clear regarding the notary authorizing the deed, its date, registration data in the Land Registry and mortgage liability corresponding to the dwelling in question, with an expression of maturities and amounts.
In relation to the guarantees of the building and its elements (one year and ten years’ insurance) , like those provided for in any other applicable regulations, the owner must receive information about the identity of the guarantor and the owner of the guarantee, the rights that correspond to said owner and the term of duration.
Notwithstanding the foregoing, urban planning regulations regulate the mandatory content that the title must contain by virtue of which the alienation of land and buildings is formalized:
- The urban situation of the land, when they are not suitable for private use or building, have buildings outside of planning or are intended for the construction of housing subject to some public protection regime that allows appraisal of its maximum sale price, rental or other forms of access to housing.
- The legal duties and obligations pending compliance, when the land is subject to an urbanization or endowment action.
The infringement of this obligation, empowers the purchaser to terminate the contract within a period of 4 years and demand compensation as appropriate under civil law.
The delivery of the aforementioned documentation is made, once the work is finished, to the developer by the construction manager, who is responsible for delivering it to the owners and end users of the building.
If the ownership of a building or part of it is acquired, all the documentation related to the building or the acquired part must be delivered to the person acquiring the property , while, in the case of lease , the person who uses the building must receive instructions for use and maintenance.
A promoter is considered to be any person, natural or legal, public or private, who, individually or collectively, decides, promotes, programs and finances , with their own resources or those of others, the building works for themselves or for their subsequent sale, delivery or assignment to third parties under any title.
Promotion work entails, therefore, a permanent organization by which a person takes the initiative in a building work and is responsible for the coordination of its phases.
Its activity consists of designing the operation, organizing it and coordinating it from a legal, technical, administrative and financial point of view. Therefore, to understand this figure, its economic function as an intermediary must be taken into account, that is, as an agent that manages the transformation of capital into building works.
The promoter is the one who carries out the functions of deciding, promoting, programming and financing building works. In principle, the concept of promoter should not include agents or managers of foreign businesses who intervene, solely and exclusively, in the interest of the person or persons who commission their action. The promoter is the principal of those. However, the aforementioned agents fall within the concept of promoter and respond as such if it is verified that their intention is to use the figure of the mandate to avoid the responsibility of the promoter.
The Technical Building Code (CTE), in a simpler way than the LOE, defines the figure of the promoter as “the building agent who decides, promotes, programs and finances the building works”
A promoter can be:
- Any natural or legal person . Unlike the rest of the construction agents, no academic or professional qualification or accreditation of competence is legally required to be a promoter. Likewise, it should be noted that unless the person of the developer and the builder coincide, the former does not intervene in the execution of the building.
- Public or private . It encompasses both civil, commercial or industrial companies, as well as corporations, associations or foundations. It is thus determined, unlike what was stated by the Supreme Court in numerous rulings prior to the entry into force of the LOE, that the profit motive is irrelevant in the face of having or not being considered a promoter. In this sense, the LOE equates in its statement of reasons the figures of promoter, manager of cooperatives or communities of owners, or other analogous figures that appear with increasing frequency in the economic management of buildings. Likewise, the responsibility of the promoter is expressly extended to natural or legal persons who, pursuant to the contract or their decision-making intervention in the promotion, act as such promoters in the form of promoter or manager of cooperatives or communities of owners or other analogous figures
- Individually or collectively . Both the person who individually carries out the functions of the same, and when there are more than one people who carry out said functions, are considered promoters. This is the case when several companies of the same group undertake the promotion of a project, some of which are in charge of financing the project and others of its organization, coordination, programming and management of the execution. The casuistry in this regard is innumerable.
- With own or third-party resources . The promoter can carry out his functions of deciding, promoting, programming and financing building works both with his own resources and those of others. He resorts to outside means when, for example, he goes to financial means, to banking entities, using the interposition of a community of owners. In this sense, and for the purposes of the responsibility incurred by the promoter, it must be taken into account who is the person who effectively performs the functions of promoter when natural or legal persons appear who are dedicated to the management, technical advice of owners and management.
Obligations of the Promoter:
The following are obligations of the promoter:
- Possess ownership of a right over the lot that empowers them to build on it. It is not necessary to be the owner of the plot on which it is intended to be built. What is relevant is that the promoter has the power to build on the site , which would suffice with having a power of attorney granted by the owner of the land.
- Provide the documentation and prior information necessary for the drafting of the project, as well as authorize the works manager for subsequent modifications to it .
- Manage and obtain the required licenses and administrative authorizations , as well as sign the act of reception of the work . The promoter is the person in charge of managing the obtaining of all the licenses, permits and authorizations necessary for the execution of the building. In this sense, it should be noted that the promoter will be responsible, together with the contractor, if the works begin without the required licenses. In practice, if the breach of this duty supposes the delay of the works, unless something else has been agreed between the parties, the non-compliant subject may be forced to compensate the rest of the agents involved in the work. All this, without prejudice to the right that said agents may have, where appropriate, to terminate their corresponding contracts if their contractual interest is frustrated .
- Sign the insurance and guarantees of One and Ten Years responsibility.
- The promoter of property under construction must guarantee, from the time the construction license is obtained, the return of the amounts delivered (including the corresponding taxes) plus legal interest, in the event that the agreed terms for the start of construction or delivery of housing .
- Deliver to the purchaser, where appropriate, the documentation of the executed work , or any other document required by the competent Administration. The documentation of the executed work is composed of:
– the project, with the incorporation, where appropriate, of the duly approved modifications;
– the receipt certificate;
– The identifying relationship of the agents that have intervened during the building process; Y
– Instructions for use and maintenance of the building and its facilities.
All this documentation constitutes the book of the building.
Self promotion – Autopromotor
From a legal point of view, there are no differences between the developer who performs his functions in order to dispose of what has been built, and the one who builds, at least initially, for his own use and enjoyment.
A self -promoter is considered to be a person who, not being a professional , schedules and hires the necessary professionals in order to build a building for their own use and enjoyment, assuming the risks arising from the development of the building on their own land.
The legal treatment of the promoter and the self -promoter is the same. All the provisions related to the promoter are fully applicable to the self -promoter and, specifically, those referring to the liability and guarantee regime.
Consequently, the self -promoter is obliged to provide the required guarantees to the Promoter in any case, except as indicated in the Ten-Year Insurance guarantee obligation, and not only for the case in which it intends to dispose of the property or when it actually proceeds to dispose of it.
The control over the constitution of the aforementioned guarantees is carried out, not at the time of sale, but at the time of deed and registration of the declaration of the new work at the land registry office.
One of the practical problems that could arise if the aforementioned guarantees are not constituted at the time of declaring the new work, postponing said constitution at the time of the alienation of the building, would be that if, in order to acquire the property, the buyer (or the entity that finances), requests a mortgage loan, the financial entity will request documentary evidence of the completion of the work for which declaration is necessary the accreditation that the corresponding ten-year insurance has been subscribed. Given that for an insurance company to issue ten-year liability insurance on a construction, it should have been subject to a specific quality control from the start, it will be impossible in practice to declare the new work and the completion of the work and , therefore, it will be impossible to obtain the credit.
Notwithstanding the foregoing, possible solutions to the practical problem of an insurance company issuing ten-year liability insurance on a construction that has not been subject to the corresponding quality control, may be:
– establish the obligation to carry out a quality control of the building without this implying the subscription of the corresponding insurance immediately (OCT); either
– That the obligation to sign the corresponding insurance falls on the builder, since it can be expressly agreed with the builder, who is the policyholder of the insurance on behalf of the former.
Single family home for own use
This assumption is excluded from the requirement to contract decennial liability insurance for material damage .
Notwithstanding the foregoing , in the event of transfer “inter vivos” within a period of 10 years , the self -promoter is obliged to subscribe to the corresponding insurance for the remaining time to complete the 10 years. In relation to this obligation of the self -promoter , it is possible to agree otherwise .
Despite the possibility of not taking out ten-year liability insurance when a single family home is self -developed for its own use, it should not be forgotten that if it is disposed of before the 10-year term from the completion of the works has expired, it can be very difficult In practice, an insurance company issues liability insurance for the remaining time to complete the 10 years, on a construction that may not have been subject to quality control from its inception.
Community of owners in construction
In the cases in which a community of owners performs the functions of promoter, there is no legal person to whom the consideration of promoter can be granted. In theory, communities of owners do not have professional dedication within the construction sector, unlike housing cooperatives.
Given possible doubts about who has the status of promoter in certain situations that occur in practice, it is necessary to point out that:
- The promoter is the professional manager who, receiving the commission from the community members, makes the relevant and fundamental decisions regarding the ordering of the construction and the building process.
All community members have the status of promoter :
– when there is no professional manager; either
– When being one of the community members who develops the decision-making intervention in the promotion, this does not have real estate development as a professional dedication or its habitual activity is not carried out within the construction market.
In these two cases, all community members are responsible for the obligations derived from the decision-making intervention of the community in the promotion. The condominium owners are responsible for the obligations assumed by the community of owners based on their participation fee. The responsibility towards the injured parties is, therefore, joint and not joint and several ( CC art.393 ). Notwithstanding the foregoing, in the event that it is one of the community members who develops the decision-making intervention in the promotion and this has as professional activity real estate development or any other directly related to the real estate market, this will be the only person considered promoter for the purposes of the LOE.
Cooperatives in construction
Housing cooperatives are associations of people whose purpose is a common socio-economic interest or need , that is, to provide their members with homes or premises and buildings, as well as to conserve or administer them, being able to acquire, parcel out and develop land for this purpose. and carry out those works, works and services that are necessary, and even directly and personally contribute the work of its partners.
The cooperative is one of the forms that, in principle, is presented as less expensive to proceed with the construction and acquisition of a home, since the figure of the promoter is left out of the construction process and, therefore, the cooperative members they save their business profit (around 25% of the value of the home), managing to adapt prices to the possibilities of demand and adapting the forms of payment to the possibilities and needs of the cooperative members as long as said adaptation is compatible with the financing of the work. On the other hand, the cooperative partner is responsible, even financially, as a member of the cooperative society, for the homes and premises that are not awarded at the end of the promotion.
Regarding contracting , housing cooperatives can:
- Directly hire all the professionals involved in the construction process, from the technician in charge of projecting the building to the contractors who carry out the works. In this case, no contract is signed with any promoter, with the partners assuming the promotion and, therefore, the ones who must monitor the works, assuming any extra costs or delays in delivery.
- Hire a management company, that is, an entity specialized in setting up housing cooperatives and managing them, charging a fee based on the price of the housing. In this case, it is the management entity that is responsible to the cooperative itself for its actions in relation to its interests and, likewise , and on an individual basis, to members and third parties.
However, legally, the condition of promoter is granted not only to those who carry out the functions of the promoter collectively, but also to those who, pursuant to the contract or their decision-making intervention in the promotion, act as such promoters in the form of promoter or manager of cooperatives .
In this sense, and in the face of possible doubts about who has the status of promoter in certain situations that occur in practice, it should be noted that they have the status of promoter:
- The professional construction manager to whom the governing council grants sufficient powers to make the relevant decisions regarding the planning of the construction.
- In the event that no power is granted or power is granted, this does not include the power to decide on fundamental acts in the building process, the cooperative . The responsibility of the governing council of the cooperative and its members against the cooperative due to vices or defects in the dwellings, requires a guilty action on the part of the directors.
Control over compliance with the guarantees is not contemplated at the time of registering the termination of the cooperative in the Registry of Cooperative Societies. In this sense, it must be taken into account that the statutes of the cooperatives must establish as a minimum term of duration of the society , the time necessary for the houses to be awarded individually to the partners, and subsist for at least another 5 more years. from the granting of the certificate or habitability license.
Real Estate Agents and intermediaries
This figure is not contemplated in the LOE as such. However, from an economic point of view, it is an interesting figure in real estate purchase and sale contracts because its competition has a direct impact on the price adjustment.
They are not real estate developers. Its activity does not focus so much on construction as on the sale of buildings. Intermediaries are agents or professionals who provide advice on the search for and purchase of homes and other types of buildings. In most cases, they take care of all the necessary procedures until the actual acquisition of a specific building.
The fundamental advantage provided by intermediaries is none other than saving time for people who are interested in purchasing a home or some other type of building. They provide information on the price of real estate, facilitate offers that are adjusted to the needs and possibilities of the future purchaser, mediate between the seller and the buyer and advise on the search for financing.
The services of this type of real estate brokerage generate a commission that is usually borne by the person who sells the property, but which can sometimes also be paid by the person who acquires the property (double commission).
The types of intermediary are the following:
- Real estate agents.
- Property managers .
- Real estate companies .
The intermediation services (advice, information, management, etc.) provided by the three types of intermediaries are very similar. The basic difference between real estate agents and other real estate brokers is that they have civil liability insurance, while the rest do not always have it.
2.- Agents intervening in Construction process
The builder or contractor is the agent of the building that assumes, contractually before the promoter, the commitment to execute with human and material resources, own or external, the works or part of them subject to the project and the contract.
The main obligation of the builder is to provide a useful result to the promoter, to achieve the executed work; however, the contractor assumes various obligations and responsibilities :
– In the contractual field, it bears the risk and cost of the loss or destruction of the work until its delivery, except for delays in reception (CC art.1544 , 1588 s. and 1596 ; LOE art.17 );
– in the workplace (can incur guilt in choosing and in monitoring );
– in relation to the materials (whether supplied or placed by the builder himself);
– in relation to the capital, its financing, etc.
Inspired by the principle of risk and chance of the contractor, the works contract is also known as a company contract , alluding to the different obligations and responsibilities assumed by the contractor under the contract and the fact that the contractor must provide the means human and material resources necessary to obtain the promised result.
The builder is required to have the qualifications or professional training that qualifies for compliance with the conditions required to act as a builder.
As the qualification or professional training referred to is not specified and there is no specific qualification whose purpose is to train contractors, the legal provision relating to the qualifying qualification of the builder is empty of content, remaining a mere declaration of good intentions .
Since there is no official title to be a contractor, currently any person, natural or legal, with the legal capacity to be bound and with sufficient professional (and economic) capacity to fulfill the work contract can be a contractor.
However, where appropriate, the contractor must abide by the obligations established by the autonomous communities for the exercise of the construction profession, since they are the only ones competent to dictate regulations in relation to the exercise of non-certified professions in the field of the construction.
Yes, there are some official qualifications, professional training, related to various material activities of construction (for example execution and work plans, masonry, etc.). In this sense, there are certificates of professionalism that confirm the competence and experience acquired by some construction technicians.
In addition to the requirement related to qualification or qualifying professional training to be a builder, the following obligations apply:
- The execution of the work subject to the project, to the applicable legislation and to the instructions of the construction manager and the director of the execution of the work, in order to achieve the quality required in the project.
The execution of the work by the contractor must comply with the following parameters :
– to the order received from the principal or promoter;
– to the project drawn up by the designer;
– to the lex artis of the builder, which is part of the contract ( CC art.1258 ), that is, that he must observe the usual rules and good practices specific to his profession;
– to the applicable legislation, especially that relating to construction products, quality control, health and safety, occupational risk prevention, etc., and must have the required authorizations, permits and licences, etc. ;
– To the instructions of the promoter, generally channeled through the project management, that is, the project manager and the project execution manager.
As has been analyzed before, the contractor does not comply with carrying out an activity with due diligence, it is necessary to achieve the result established in the contract. For this reason, the risk of the loss of the thing is at your own expense until the delivery of the work.
The contractor cannot limit himself to executing the technical instructions since his status as an expert makes him capable of assessing the feasibility of the instructions and orders received, as well as the suitability of the construction materials if they are supplied by the client. He bears the obligation to warn the principal when the instructions or orders are incorrect or unfeasible and is, therefore, within his right not to carry out or execute the orders when, in his opinion, they are incorrect or unfeasible.
The contractor must obey the instructions of the promoter , however, there is no room for him to claim and hide behind the fact that he does what the technicians order him to do in case of trying to avoid his possible responsibility in relation to the works .
- The designation of the construction manager who assumes the technical representation of the builder in the work and who, due to his qualifications or experience, must have adequate training in accordance with the characteristics and complexity of the work.
The site manager is not required to have an academic degree . It is usually, in general, a technical architect or person with great experience in the world of construction.
In order to be able to give orders to his subordinates, it is necessary for the construction manager to know the construction that is to be carried out and to be able to order the human and material resources necessary to carry out and execute the work in accordance with what has been agreed upon by the contractor and the principal in the contract.
- The allocation of human and material resources that the importance of the work requires. The builder must assign to the work the human and material resources necessary to achieve the result as contractually agreed.
The builder does not usually carry out its activity directly, but rather acts through its business structure. Therefore, the total or partial subcontracting of the works is possible, as long as the requirements set out in L 32/2006 are met , which regulates the figure of the subcontractor in the construction sector, unless said power has been expressly excluded in the contract, or unless the principal awards or commissions all the works to the contractor based on his personal conditions.
- The formalization of the subcontracting of certain parts or facilities of the work within the limits established in the contract and in Law 32/2006 .
Subcontracting is included among the obligations of the contractor, however, it is not so much an obligation as a power of the contractor.
The contractor is directly responsible , before the owner of the work, for the work that the subcontractors carry out. In turn, if the work was adjusted on a higher basis, the subcontractor can bring a subrogation and subsidiary action against the same owner of the work to claim what the contractor owes.
- The signing of the layout or commencement certificate and the certificate of reception of the work. The layout act must be signed by the contractor and by the project management, that is, the construction manager and the director of the execution of the work.
The setting out must be carried out by the builder as part of the execution of the work. The layout act must state whether or not the start of the work proceeds and, if applicable, the layout act serves as the formal start of the work.
Likewise, it is an obligation of the contractor to sign the act of reception of the work , which must be signed, at least, by the contractor and by the promoter ( LOE art.6 ). If reservations are recorded in the acceptance certificate , once these reservations are corrected, the contractor must sign the rectification certificate ( LOE art.6.2.d ).
- Provide the construction manager with the necessary data for the execution of the documentation of the executed work . The contractor must deliver to the construction manager the information and documentation necessary for the preparation by him of the documentation related to the executed work ( LOE art.12. 3.f ).
- The subscription of the guarantees provided for in the law, especially the ten-year insurance , and the insurance of material damages , surety or financial guarantee that the builder must subscribe in guarantee of the material damages due to vices or defects in execution that affect elements of termination or completion of works and that must be compensated during a period of one year from the completion of the works and their delivery to the promoter.
Subscription to said insurance may be replaced by a withholding by the promoter of 5% of the amount of the material execution of the work throughout the guarantee period. It must be understood, although nothing is said in the LOE, that the contractor could also substitute the subscription of the aforementioned insurance for the delivery to the promoter of a bank guarantee guaranteeing at least 5% of the amount of the material execution of the work for a period of one year, through which material damage caused to the building due to vices or defects in its execution that affected finishing or finishing elements during the aforementioned year would be compensated.
The promoter may expressly agree with the contractor that the latter be the policyholder on behalf of the former with respect to material damage insurance or surety insurance to guarantee compensation for damages caused by defects or defects in construction elements or facilities for 3 years . that cause non-compliance with habitability requirements; Y
– material damage insurance or surety insurance to guarantee for 10 years compensation for material damage caused to the building by vices or defects that originate in or affect the foundation, supports, beams, floors, walls of load or other structural elements, and that directly compromise the mechanical strength and stability of the building.
The subcontractor is the natural or legal person who contractually assumes before the contractor or other commissioning subcontractor the commitment to carry out certain parts or units of work , subject to the project by which its execution is governed. The variants of this figure can be those of the first subcontractor (subcontractor whose client is the contractor), second subcontractor (subcontractor whose client is the first subcontractor), and so on.
Law 32/2006 regulates subcontracting in the construction sector and aims to improve working conditions in the sector, in general, and the health and safety conditions of its workers , in particular. This Law supposes a radical change in relation to the pre-existing model, since it addresses for the first time, and in a strictly sectoral way, a regulation of the legal regime of subcontracting that, recognizing its importance for the construction sector and specialization for the increase in productivity, establishes a series of guarantees aimed at preventing the lack of control in this form of productive organization from causing objective situations of risk for the safety and health of workers, in a country like Spain, which continues to register an accident rate labor very notorious for its numbers and seriousness.
This rule, which is strictly sectoral, is applicable to contracts entered into, under subcontracting, for the execution of the following works carried out in construction works :
– Earth movements;
– assembly and disassembly of prefabricated elements;
– fittings or installations;
– conservation and painting and cleaning works;
Requirements for contractor and subcontractor
A series of requirements are established for contractors and subcontractors, in order to avoid the participation of companies without a minimum organizational structure that allows guaranteeing that they are in a position to meet their obligations to protect the health and safety of workers. .
In order for a company to be able to intervene in the subcontracting process in the construction sector, as a contractor or subcontractor, it must meet the following requirements:
- Have their own production organization , have the necessary material and personal resources, and use them to carry out the contracted activity.
- Assume the risks, obligations and responsibilities inherent to the development of the business activity.
- Directly exercise the powers of organization and management over the work carried out by their workers on the construction site and, in the case of self-employed workers, carry out the work with autonomy and their own responsibility and outside the scope of organization and management of the company that works for them. have hired.
In addition to the above requirements, companies that intend to be contracted or subcontracted for work on a construction site must:
- Prove that they have human resources , at their managerial and productive level, that they have the necessary training in occupational risk prevention, as well as a preventive organization appropriate to L 31/1995 , on occupational risk prevention.
- Be registered in the Register of Accredited Companies . This registration is made ex officio by the competent labor authority, on the basis of the employer’s declaration referred to in the following paragraph.
Contractor or subcontractor companies must certify compliance with the above requirements by means of a declaration signed by their legal representative formulated before the Register of Accredited Companies. The registration is made ex officio by the competent labor authority, on the basis of said declaration.
In addition, companies whose activity consists of being contracted or subcontracted habitually to carry out work on construction sites must have, in the terms determined by regulation, a number of workers contracted on an indefinite basis that is not less than 10% during the first 18 months of validity of this rule, nor 20% during the months from the 19th to the 36th, nor 30% from the 37th month, inclusive. For these purposes, in the associated work cooperatives, the worker partners are computed in a similar way to the employed workers, in the terms determined by regulation.
The excess in the subcontracting chains, especially in the construction sector, operates progressively undermining business margins and the quality of the services provided to the point that, in the last links of the chain, such margins are practically non-existent, favoring submerged work, just in the final element that has to answer for the safety and health conditions of the workers who carry out the works. For this reason, the indicated excesses of subcontracting can facilitate the appearance of practices that are incompatible with health and safety at work.
Subcontracting , as a form of productive organization, cannot be limited , except under the conditions and in the cases provided for in L 32/2006 . Thus, the subcontracting regime in the construction sector in general is as follows:
- The promoter may contract directly with as many contractors as it deems appropriate, whether they are individuals or legal entities.
- The contractor may contract with subcontractor companies or self-employed workers to carry out the work that has been contracted with the promoter.
- The first and second subcontractors can subcontract the execution of the works that, respectively, they have contracted.
- The third party subcontractor may not subcontract the work it has contracted to another subcontractor or self-employed person.
- The self-employed worker may not subcontract the work entrusted to him or to other subcontracting companies or other self-employed workers.
- Likewise, subcontractors cannot subcontract either , whose productive organization put into use in the work consists, fundamentally, in the contribution of labor, understood as that which for the performance of the contracted activity does not use more own work equipment than manual tools, including portable power tools, even if they have the support of other work teams other than those indicated, provided that they belong to other companies, contractors or subcontractors of the work.
Notwithstanding the foregoing, when in duly justified fortuitous cases , due to demands for specialization of the work, technical complications of production or circumstances of force majeure that the agents involved in the work may experience, it is necessary, in the opinion of the project management, the contracting of some part of the work with third parties, exceptionally the subcontracting established in an additional level can be extended, provided that the project management states its prior approval and the cause or causes motivating it in the book subcontracting ( L 32/2006 art.7 ).
Exceptional extension of subcontracting does not apply in the cases contemplated in letters e) and f) above, unless the motivating circumstance is force majeure.
The contractor must inform the health and safety coordinator and the representatives of the workers of the different companies included in the scope of execution of his contract that are listed in the subcontracting book, the exceptional subcontracting.
Likewise, the contractor must inform the competent labor authority of the indicated exceptional subcontracting by submitting, within 5 business days following its approval, a report indicating the circumstances of its need and a copy of the entry made in the subcontracting book.
Register of Accredited Companies – (L 32/2006 art.5 and 6 )
For the purposes of the provisions in relation to the subcontracting regime, the creation of the Register of Accredited Companies is foreseen, depending on the competent labor authority, understood as the one corresponding to the territory of the autonomous community where the company’s registered office is located. contractor or subcontractor.
Registration in the Register of Accredited Companies is valid for the entire national territory, and its data is publicly accessible, with the exception of those relating to personal privacy.
By regulation, the content, form and effects of the registration in said registry will be established, as well as the coordination systems of the different registries dependent on the regional labor authorities.
Contractor and subcontractor obligations
The following obligations are established:
- Duty of vigilance and responsibilities derived from non-compliance. Contractor and subcontractor companies involved in construction works included in the scope of application of L 32/2006 must monitor compliance with the provisions of the same by the subcontractor companies and self-employed workers with whom they contract; in particular, as regards:
– the obligations of accreditation and registration ( L 32/2006 art.4.2 ); Y
– the subcontracting system ( L 32/2006 art.5 ).
The subcontracting companies must communicate or transfer to the contractor, through their respective commissioning companies if they are different from the former, any information or documentation that affects the above.
Without prejudice to other responsibilities established in the social legislation, the breach of the required accreditation and registration obligations or of the subcontracting regime, determines the joint and several liability of the subcontractor that has contracted incurring said breaches and of the corresponding contractor with respect to labor obligations and of Social Security derived from the execution of the agreed contract that correspond to the subcontractor responsible for the breach in the scope of execution of its contract, whatever the activity of said companies.
In any case, the responsibility established in the Workers’ Statute art.43 is required (ET) when the assumptions provided for in it occur.
- Have the documentation of the subcontracting . Each contractor must have a subcontracting book in all construction works included in the scope of application of L 32/2006 .
- Duty to inform the workers’ representatives . The representatives of the workers of the different companies that intervene in the execution of the work must be informed of the hiring and subcontracting that are made in it.
- Accredit the preventive training of workers . Companies must ensure that all workers who provide services on construction sites have the necessary and appropriate training for their job or function in terms of occupational risk prevention, so that they are aware of the risks and the measures to prevent them.
1) By means of a state-wide sectoral collective agreement, systems or procedures for the representation of workers may be established through union representatives or on a bipartite basis between business organizations and unions, in order to promote compliance with occupational risk prevention regulations in the construction works of the corresponding territory. You can also establish training programs and specific contents of a sectoral nature and for the work of each specialty.
2) The specific training accreditation system may consist of the issuance of a professional card for each worker, unique and valid throughout the sector.
3) The subcontractor does not have the status of building agent in accordance with the LOE regime, which defines the liability of building agents against construction defects , the builder being responsible for the activity of the subcontractors, as they are linked contractually, limiting the action of the subcontractor to following the instructions of its contractor .
4) Violations of the provisions of L 32/2006 are sanctioned in accordance with RDLeg 5/2000 of the consolidated text of the Law on violations and sanctions in the social order
Temporary union of companies – (L 18/1982)
Given the technical and commercial complexity, as well as the legislative one, that the real estate market and the building process have acquired, new participants or subjects have appeared and are appearing who develop a provision of services that comes to contribute in one way or another to guarantee a more efficient and quality construction.
Within this large group, the following stand out:
– integrated project management or project manager ; AND
– the collaboration of companies and/or entrepreneurs in the construction sector with joint ventures and joint ventures .
The temporary unions of companies (hereinafter, UTE) suppose a system of collaboration between companies and/or entrepreneurs for a certain time, determined or indeterminate, for the development or execution of a work, service or supply and with a determined fiscal regime.
The UTE arise from a collaboration contract signed between companies and/or businessmen and formalized in a public deed that gives rise to an organization that lacks legal personality . For this reason, the members of the UTE are jointly and severally liable to third parties for acts and operations carried out for the common benefit.
In order for the tax regime established in L 18/1982 to be applicable , the UTE must have the following characteristics:
- Its members must be individuals or legal entities residing in Spain or abroad. The business income of individuals who form part of a joint venture is determined by direct estimation for personal income tax purposes.
- Its object must be to exclusively develop or execute a specific work, service or supply inside or outside of Spain, being able to develop or execute complementary and accessory works and services of the original object.
- Its duration must be the same as that of the work, service or supply that constitutes its object with a maximum of 25 years, unless the execution or exploitation is of public works or services, in which case the maximum duration will be 50 years. years.
- They must be managed by a single manager with sufficient powers granted by each and every one of the members of the UTE to exercise the rights and contract the corresponding obligations on behalf of the UTE.
- They must be constituted by means of a public deed that contains the statutes or agreements that govern their operation, including, among others, the proportion or method to determine the participation of the different members in the distribution of the results of the UTE and the time allocation criterion. results or income and expenses. The public deed must be registered in a special registry of an administrative nature at the Ministry of Finance. Prior to registration , a document must be addressed to the General Directorate of Taxes in which the members of the UTE request acceptance of the special tax regime and the registration of the deed. Said document must be submitted together with a copy of the deed of incorporation of the UTE, a photocopy of model 036 or 037 requesting the CIF of the UTE and a photocopy of model 845 (for municipal fee) or 846 (for provincial fee). .
L 18/1982 uses the term ” entrepreneurs ” , however, it must be understood that natural persons can form part of a UTE, provided that they are in a direct estimation regime.
The tax regime applicable to these entities varies depending on whether or not the requirements indicated in L 18/1982 are met:
- If the requirements are not met: these entities are not IS taxpayers , paying taxes in accordance with the income allocation system ( LIS art.6 ).
- If the requirements are met, the tax regime depends on whether or not the UTE is registered in the special registry : the UTE not registered in the special registry is taxed according to the general IS regime, while the registered one is subject to the tax regime special established for these entities.
Special tax regime
The following tax regime is applied to the UTEs registered in the special registry:
1) They do not pay IS for the part of the tax base attributable to members resident in Spanish territory. In the event that the UTE opts for the installment payment modality , the calculation base does not include the part of the tax base attributable to the members that must bear the imputation of the tax base. In no case is the refund of the excess of installment payments in relation to that same part.
2) Its members residing in Spanish territory or non-residents with a permanent establishment therein are imputed:
- The net financial expenses that, in application of the limitation to the deductibility of financial expenses, have not been deducted by the UTE in the tax period. The net financial expenses charged to the partners are not deductible by the entity.
- For tax periods beginning on or after 1-1-2015 , the capitalization reserve that has not been applied by the UTE itself in the tax period. The reserve that is imputed to the partners of the UTE cannot be applied by the latter, unless the partner is an IRPF taxpayer.
- The positive or negative tax bases , obtained by the UTE. The negative tax bases attributed to the partners cannot be offset by the UTE. For tax periods beginning on or after 1-1-2015, the positive tax bases are reduced or increased, as the case may be, in the leveling reserve.
- The bases of the deductions and bonuses in the quota to which the entity is entitled. These bases of deduction or bonus are integrated in the liquidation of the partners, reducing the quota according to the IS or IRPF regulations.
- Withholdings and payments on account corresponding to the UTE.
3) Dividends and shares in profits corresponding to non-resident members in Spanish territory are taxed as such, in accordance with the regulations established in RDLeg 5/2004 (non-resident income), and the agreements to avoid double taxation signed by Spain. .
Dividends and profit sharing corresponding to partners who must bear the allocation of the tax base and come from tax periods during which the UTE was in this regime, are not taxed for this tax or personal income tax.
4) In the event of the transfer of shares in the capital, own funds or results of a joint venture under the special tax regime, the acquisition value is increased by the amount of the social benefits that, without effective distribution, have been attributed to the partners . as income from its shares in the period of time between the acquisition and the transfer.
5) For tax periods beginning on or after 1-1-2015 , the value of the acquisition of shares in UTEs is reduced by the amount of social losses that have been attributed to the partners.
This tax regime does not apply in those tax periods in which activities other than those appropriate to their purpose are carried out or they own, directly or indirectly, shares in companies that are their partners, or direct or control, directly or indirectly, the activities of its partners or third parties.
The UTEs and their participants resident in Spain are not obliged to make withholdings at source, on account of the IS or the IRPF, with respect to the yields subject to withholding that are reciprocally satisfied as a direct consequence of the activity of the union in its relations with its members. With respect to the other income that they satisfy, there is an obligation to make the corresponding withholding or payment on account as payment on account of IS or IRPF.
The member companies of a UTE that operate abroad can benefit from the income from abroad to the exemption method ( LIS art.45 ). The entities that participate in works, services or supplies that are carried out or provided abroad, by means of collaboration formulas analogous to the UTE, may avail themselves of the exemption regarding income from abroad. Entities must request the exemption from the Ministry of Economy and Finance, providing information similar to that required for temporary unions of companies incorporated in Spanish territory. The option for exemption determines its application until the termination of the UTE. The negative income obtained by the UTE is charged to the tax base of the member entities. In this case, when in successive years the joint venture obtains positive income, the member companies will include in their tax base, on a positive basis, the negative income previously allocated, up to the limit of the amount of said positive income. The foregoing does not apply in those tax periods in which the taxpayer carries out activities other than those in which its corporate purpose should consist.
The Tax Administration considers similar to the Spanish UTE the ” joint ventures » (when they do not give rise to a new company) and consortiums with other foreign companies, which do not have legal personality and whose purpose is the execution of a similar work, supply or service.
Once the corporate purpose for which it was established has been fulfilled, the UTE is extinguished. The termination is formalized in a public deed , which must be communicated to the Ministry of Finance, which removes it from the special registry.
If the liquidation results in a delivery of goods to the companies that make up the UTE whose market values are higher than the accounting values, the difference between both values must be included in the tax base of the UTE corresponding to the tax period in which the transfer occurs. extinction, so that it is imputed to the members, who will increase the fiscal value of their participation in the UTE by the amount of the capital gains from the dissolution of the UTE that has been imputed to them.
At the level of the members of the UTE being liquidated, income is produced for the difference between the market value of the liquidation fee received and the tax value of the participation in the UTE imputed to them, including the income generated in the liquidation of the UTE, which is attributed to its members.
Joint venture formula supposes the collaboration between several companies through a contractual agreement or through, in addition to the aforementioned contractual agreement, the constitution by several companies of a common subsidiary company in order to carry out an activity concrete. This last case is usually the most characteristic. The aforementioned subsidiary is usually either a public limited company or a limited liability company, constituted and owned in the same percentage by all the companies involved.
All the formalities provided for in the Spanish regulations for each of them must be followed for the constitution and operation of the aforementioned common subsidiary company. Commercial companies have, in principle, a stable character and a certain vocation for permanence, but even so they can have a temporary character, establishing for it a certain duration or completion milestone.
As it is a specific collaboration formula of the partners, it is necessary to establish a very clear agreement on the purpose and form of the company and organization that is created in the bylaws and in a shareholders’ agreement, properly regulating the governing bodies and the quorum . voting minimums in said bodies (meeting of partners or shareholders and administrative body) to adopt agreements, even being able to establish some agreements that require the concurrence of all partners.
As identifying features of each of the two types of companies mentioned, the following should be highlighted:
- Limited company (SA): It must have a minimum capital of 60,101 euros divided into shares and the partners are not personally liable for company debts, with only the company’s assets being responsible for the fulfillment of said debts.
- Limited liability company (SL): It must have a minimum capital of 3,005 euros divided into shares that cannot be freely transferred to persons other than the partners or their relatives or companies in the same group. In this case, the partners are also not personally liable for company debts. The limited liability company has a relatively more flexible regime than the public limited company, leaving more autonomy to the will of the parties.
Differences between UTE and « joint venture »
The alternative of creating a joint venture for the development of a real estate project, despite its organizational and operational advantages and the special tax regime that provides greater flexibility to collaboration between the companies that join, has the disadvantage that its members They are jointly and severally liable to third parties for acts and operations carried out for the common benefit. Another disadvantage is the form of its management body through a single manager that commits the UTE and, consequently, its partners . All partners must agree on the person of the manager who can commit his actions to it.
This inconvenience does not arise, however, in the case of the common subsidiary company resulting from the joint venture (limited liability company or corporation) since the partners are not personally liable for the company’s corporate debts. On the other hand, this alternative entails the creation of a company with all the corresponding procedures and costs and the non-application of the special tax regime of the UTE.
On the other hand, the temporary nature of the UTE can also be applied to the limited liability company, establishing a duration limited to the execution of the work or the provision of the service.
3.- Technical direction
Designer of the project – (LOE art.10 )
The designer is defined as the qualified and competent technician who, by order of the developer and subject to the corresponding technical and urban regulations, is responsible for capturing the concept of the building in a series of plans and documents in accordance with a graphic code of scope general.
The designer can undertake the development of the project by himself or can agree with the promoter the hiring of partial collaborations of other technicians who can:
– write partial drafts of the project; either
– write parts that complete the project.
The contracting of partial collaborations must be carried out in coordination with the designer who is the author of the main project, avoiding duplication in the documentation and in the fees to be received by the authors of the different works indicated ( LOE art.4.2 ).
When the project is developed or completed through partial projects or other technical documents, each designer assumes ownership of their project.
The designer must be in possession of the academic and professional qualification of architect, technical architect, engineer or technical engineer, as appropriate, and meet the conditions required for the exercise of the profession.
For the performance of these professions in question, possession of the academic degree corresponding to each of the aforementioned technicians is required. In this sense, the comments made in No. 1695 , regarding the director of execution of the work, in relation to the qualifying academic and professional qualifications, the conditions required for the exercise of the profession and professional intrusion.
If the person designated as technical drafter of the project is a legal person, this person must, in turn, designate the technical person who is going to be the designer who must have the qualifying professional qualification. The designer in this case can be either a worker hired by the legal entity, or one of the partners that forms part of it.
The construction manager is the building agent who, as part of the project management, directs the development of the work in its technical, aesthetic, urban and environmental aspects, in accordance with the project that defines it, with the building license and other mandatory authorizations and conditions of the contract, in order to ensure its suitability for the proposed purpose.
This is the competent qualified technician who, together with the director of execution of the work, forms the optional management of the works.
The construction manager can carry out, in addition to the functions that are proper to him (senior management of the works), those of the director of execution of the work. Both the functions of one and the other are perfectly differentiated and identifiable.
The construction manager can be the person who drafted the project of the work that is intended to be executed or a different person. When it is a professional other than the one who drafted the project, they have the obligation to review the project, since they assume the risk and responsibilities derived from the omissions, deficiencies and imperfections of said project ( LOE art.17.7.2º ). However, the construction manager has the right of repetition against the designer.
More than one director is contracted jointly for the direction of the work, they are jointly and severally liable without prejudice to the distribution that corresponds between them ( LOE art.17. 7.3º ).
The works of the partial projects can be directed by other technicians under the coordination of the construction manager.
If the person designated to carry out the functions of project manager is a legal person , this person must in turn designate the technician who is going to be the project manager and who must have the qualifying professional qualification.
1) A project defect does not exempt the technician who directs the work from responsibility, since his status as a technician obliges him to examine the project and determine its suitability for the specific circumstances of the work, without prejudice to the responsibility of the designer for the defects incurred. Therefore, it must be understood that the director of the work, tacitly, ratifies and approves what was calculated and designed by the technical designer and, consequently, if there are errors, the responsibility arising from such acts is joint and several. both technicians.
2) The architect director of a work is required a degree of diligence that derives from the specialty of his knowledge and the technical and professional guarantee that his intervention in the work implies, including among his duties the study of the peculiar conditions of the land on which it will be built. This established jurisprudential doctrine is included in the LOE.
To perform the functions of construction manager, it is required to be in possession of the qualifying academic and professional qualifications and to meet the conditions required for the exercise of the profession.
Architects, technical architects, engineers and technical engineers can perform the functions of construction manager. These professionals must, in order to carry out their profession, be in possession of the corresponding title .
The homologation in Spain of degrees issued by states that are not part of the European Union is carried out in accordance with the bilateral conventions and agreements that, if applicable, Spain may have signed in relation to the recognition of studies and degrees. Likewise, the aforementioned degrees can be homologated in Spain, provided that the requirements and the procedure for the homologation and declaration of equivalence to a degree and official university academic level and for the validation of foreign higher education studies are met, and the procedure to determine the correspondence to the levels of the Spanish framework of qualifications for higher education of the official titles of architect, engineer, graduate, technical architect, technical engineer and diploma ( RD 967/2014 ).
Homologation and recognition in Spain of degrees issued in a Member State of the European Union is carried out according to the type of degree.
Regarding the conditions for the exercise of the profession , for the performance of the functions of construction manager it is necessary to be registered and, consequently, the observance of the obligations determined by the statutes by the professional associations.
The following are the duties of the project manager:
- Have the academic and professional qualification of architect, technical architect, engineer or technical engineer, as appropriate, and meet the conditions required for the exercise of the profession ( no. 1684 ). In general, the direction of the execution of the work can be carried out by people with the title of architect, technical architect, engineer or technical engineer.
As is the case with the designer, in relation to the construction manager, the LOE does not offer a preference in which it is determined which professionals are responsible for the direction of which works, limiting itself to listing the technicians who could be enabled, except for the case of the buildings of group a) of LOE art.2.1 , in which the competence of the direction of the works is attributed exclusively to the architects.
- Verify the setting out and the adequacy of the foundation and the projected structure to the geotechnical characteristics of the land. It is the obligation of the construction manager to verify on the ground the geometric feasibility of the project that is intended to be executed, as well as the availability of the land necessary for its execution.
Stakeout is understood as the act of drawing a natural size on the ground or the work, a geometric figure of variable composition and with its own technical meaning, which has previously been designed on a plan or its description is recorded in another document with sufficient data to its correct interpretation and transfer ( RD 314/1979 point 3.1.1 ).
In relation to the second part of the obligation described, it is necessary to prepare a geotechnical study so that the construction manager can verify the adequacy of the foundation and the projected structure. However, the LOE does not indicate the geotechnical study among the mandatory documents that must be part of the project.
The setting out involves marking or determining on the ground what is reflected in the plan by the designer, and is limited to the geometric verification on the plot of the projected building and the declaration by the builder of being in a position to start the contracted works, with what that the project management, in agreement with the promoter, authorizes the immediate start of the works .
- Resolve contingencies that occur on the site and record in the order and assistance book the precise instructions for the correct interpretation of the project. The construction manager must ensure that the works are executed according to the project, for which he has to monitor and ensure the development of the works and resolve any contingencies that may occur during said development. You must make as many checks as necessary so that, effectively, the works conform to the projected, giving the contractor the necessary instructions to do so. In this sense, the contractor must be provided with the plans and data necessary for the correct interpretation of the project.
The construction manager is in charge of interpreting the project , both from a technical, economic and aesthetic point of view, as well as adopting the necessary measures to complete the development of the project, establishing the adaptations, complementary details and modifications that may be required in order to achieve the total completion of the work, according to the project.
The construction manager must record the orders given in the order and assistance book, as well as the orders related to quality control, and submit it completed at the end of the works.
- Prepare, at the request of the promoter or with his agreement, possible modifications of the project , which are required by the progress of the works, provided that they adapt to the regulatory provisions contemplated and observed in the drafting of the project. Legally, the construction manager is only obliged to carry out modifications to the project when these are required by the progress of the work. However, contractually it is possible to extend the ius variandi of the promoter to as many modifications as he decides to introduce in the project during the course of the works or even limit said power to introduce modifications that involve variations in the contract price, either upwards or downwards. , by a certain percentage.
Neither the LOE nor the Civil Code recognize a right of the promoter to introduce modifications to the project. The construction manager is only obliged to execute modifications to the project aimed at correcting it in what is incorrect or unfeasible. The infeasibility can be determined by technical, legal, urban reasons, etc.
In the event that the possibility of introducing variations to the project is foreseen, the way of regulating and calculating the adjustments to the price and the term due to these variations must be specifically regulated in the work execution contract.
The architect director of the work has to correct the project that is executed when it incurs errors . If the author of the project and the director of the work are the same superior architect, it is only the execution of what was projected. But if it is different, the second becomes the qualifier and corrector of the first, because the criterion is that the project is the intention and the execution is reality .
- e) Sign the layout or commencement of work minutes and the final work certificate, as well as prepare the partial certifications and the final liquidation of the executed work units, with the visas that may be mandatory.
The certificate of layout or commencement of works or stripping of ropes must be signed by the project management, the contractor and the promoter.
Subscription by the construction manager of the final certificate of the work is a necessary requirement to be able to register the declaration of new construction (or prove the completion when the new work under construction was declared) and obtain the first occupation license.
- f) Prepare and sign the documentation of the executed work to deliver it to the promoter, with the visas that may be mandatory. Given that practice proves that in the works there are always variations (major or minor) in the project from the beginning of its execution until the end of the work, it is the obligation of the construction manager to prepare and sign the documentation of the work that has actually been executed. Such documentation is known as the building’s as – built documentation .
The construction manager must deliver said documentation of the executed work to the promoter, who in turn must deliver it to the future purchasers of the constructed building.
g) The obligations of the director of execution of work , in those cases in which the director of the work and the director of execution of the work are the same professional.
Execution Director – Works Director
The director of execution of the work is defined as the building agent who, as part of the project management, assumes the technical function of directing the material execution of the work and of qualitatively and quantitatively controlling the construction and the quality of the building. .
Two figures are thus differentiated within the facultative direction:
– the construction manager; AND
– The director of execution of work.
Both figures are compatible and, at the same time, their functions are perfectly differentiable.
The essential functions of the works execution director are to direct, order and inspect the execution and development of the works. However, the functions of the director of execution of the work are always subject to those of the director of work.
The figure of the director of execution of work is the one that has traditionally been developed in the world of construction by the quantity surveyor or technical architect . This agent does not have any power in order to prepare or draft the project or its modification.
The director of works develops the mediate direction of the execution of the works, while the director of execution of the works exercises what would be the immediate direction . It is directly and immediately in the works and in the building process and comes to supply the contractor’s technical and preparation deficiencies on site.
If the person appointed to carry out the functions of director of execution of the work is a legal entity , this person must in turn designate the technician who is going to be the director of execution of the work, who must have the qualifying professional qualification.
The director of execution of work, in his capacity as technician, must be up to date and know the technological standards of the building , and warn the director of work of its non-compliance, checking that the construction conforms to its lex artis
To carry out the functions of director of execution of work, it is required to be in possession of the qualifying academic and professional qualifications and meet the conditions required for the exercise of the profession. This requirement is independent of whether or not the buildings that are intended to be designed and managed are subject to the LOE.
Thus, architects, technical architects, engineers and technical engineers can perform the functions of project execution director.
The director of execution of work has the following obligations:
- Verify the reception of construction products on site , ordering the performance of precise tests and trials . Among the obligations that fall to the director of execution of works is that of carrying out the verifications of the materials used in the material execution of the works (mixtures, tests and verifications, proportions and dosage of the materials, analysis, correct placement of the aforementioned materials, related documentation, etc.).
- Direct the material execution of the works, checking the layout, the materials, the correct execution and arrangement of the construction elements and the installations, in accordance with the project and with the instructions of the construction manager.
- Record the appropriate instructions in the order and assistance book and in the quality control book. The director of execution of the work must record in the book of orders and assistance the precise orders and instructions that are given in the work for the correct interpretation and execution of the project.
Regarding quality control, nothing is said in the LOE about the obligations of the project management in this regard. It is the regional legislation that establishes the obligation to monitor and verify the observance of the degree of quality and the quality control program corresponding to the building on the project management (construction director and director of execution of works).
- Sign the minutes of layout or start of work and the final certificate of work, as well as prepare and sign the partial certifications and the final liquidation of the executed work units.
- Collaborate in the elaboration of the documentation of the executed work . The director of the optional execution must collaborate with the other agents of the building in the preparation of the documentation of the executed work, providing the results of the control carried out.