Interdict of new construction: everything you need to know

Lectura 4 min
interdicto-de-obra-nueva

There are many homeowners who are encouraged to carry out a structural change in their home in order to adapt it to their needs and tastes. It should be noted that a license is required for this type of work. One of the main reasons for which this type of modifications are carried out, besides the enjoyment of the owners, is for the sale of the same one, which increases its value when being reformed. 

However, if this work does not comply with the necessary licenses and permits, it is possible that one of the adjoining neighbors may file what is known as an injunction for new construction.

Still don’t know what this means? Then read on, as it is essential to know this information if you are looking to buy a new home and renovate it

What is the interdict of new construction?

The interdict of new construction is a law contained in the Civil Code that decrees the suspension of a modification whenever it directly harms a property, its right of possession or any other real right of a person.

Literally, this rule is contained in article 446 of the Civil Code where it is stated: “Every possessor has the right to be respected in his possession and, if he is disturbed in it, he must be protected or restored in such possession by the means established by the laws of procedure”.

Who can paralyse a construction project through an injunction for new construction?

Despite the fact that any person who meets the requirements that will be shown below is entitled to file a claim for an interdict of new construction, the only person capable of paralysing this modification is the judge himself, as long as he admits this request. This paralysation will be temporary until the sentence is determined.

claim-for-an-interdict-of-new-construction

What are the requirements for a new construction injunction?

In order to be able to carry out a claim for an injunction of new construction there are some basic aspects that must be fulfilled. These are:

  • That the person carrying out such lawsuit is the owner of the property affected by the work that is requested to be paralyzed.
  • That the action that is directed directly against the builder is made in a legal and not material sense.
  • The work to be paralyzed must have modified some aspect of the adjoining property.
  • That the performance of the work in question directly impairs the possessory situation, or at least disturbs the owners’ enjoyment of the same.
  • That the work has not yet been completed when the lawsuit is to be brought.

How is the procedure for an interdict of new construction?

If the above-mentioned requirements for a new construction injunction are fulfilled, the next step is the procedure itself, which is divided into two main phases:

  1. First phase: the first thing that is done when the request to stop a building work by an interdict of new construction is initiated is the pause of this work, carried out by the judge who has admitted the claim of the interdict. At this moment, the work will be stopped by the owner of the property, regardless of its state. At this point, the work will be stopped by the owner of the property, regardless of the state of the property. This can be carried out by any person who fulfills the aforementioned requirements for an interdict of new construction. What must be done next is the corresponding trial in order to decree whether the work must be suspended in perpetuity or whether it can be restarted and completed until its completion.
  1. Second phase: it is known as contradictory phase and in this one the interested parties go to what is known as verbal trial to verify which of the two actors of the claim in question is in possession of the reason. For this, the analysis carried out in order to verify if the state of the work has been able to harm the complaining owner is used as evidence.

Finally, the trial will end with a judgment, although it is likely that there will be what is known as a subsequent declaratory judgment, so that the person who was carrying out the work can continue with it.

Is it possible to file a new construction injunction in a condominium?

The truth is that it is possible to file a new construction injunction to request the suspension of a modification that is being carried out within a community of owners.

In this sense, the work must have started in one of the common elements of the community building, which is directly disturbing any of the owners. Now, as a basic requirement to be able to file the lawsuit, it is necessary that there is no explicit permission from the community itself to carry out this work.

It is also essential, when buying a house, to analyze if the quality standards are met, since there is what is known as new home warranty.

So, whether it is a work that you want to carry out on a property that you already own or if you buy a new home, you always have to pay attention to the regulations to avoid legal problems.  

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