Builder Damage to Neighboring Property: A Legal Guide to Liability in Ecuador

The Foundation of Liability: Ecuadorian Civil Code

In Ecuador, civil liability for property damage (responsabilidad extracontractual) is precisely defined by the Civil Code (Código Civil).

• Article 2214 establishes that anyone who commits a crime or act of negligence (delito o cuasidelito) that causes harm to another is obligated to provide compensation.
• This principle extends to construction. If a builder's actions cause damage through negligence, recklessness, or incompetence, they are liable.

Builder's Direct Liability vs. Owner's Vicarious Liability

• Builder's Direct Liability: The construction professional is primarily responsible for their own actions and must exercise a professional duty of care to prevent harm to third parties.
• Your Liability as the Property Owner (dueño de la obra): You can be held legally responsible for your builder's actions under two key doctrines:
  1. Liability for Dependents (Art. 2229, Código Civil): You are liable for the actions of those under your care or employ. This can extend to contractors if you exert significant control over the work.
  2. Negligent Selection or Supervision (Culpa in Eligendo / Culpa in Vigilando): You can be liable if you were negligent in selecting your builder or in supervising the project.

Proactive Defense: Before the First Shovel Hits the Dirt

The Construction Contract: Your Legal Shield

A construction contract, drafted or reviewed by an Ecuadorian attorney, must contain:

1. Explicit Indemnification Clause (Cláusula de Indemnidad): This legally obligates the builder to defend, indemnify, and hold you harmless from any third-party claims.
2. Mandatory Insurance Requirements: The contract must compel the builder to secure and maintain a Póliza de Responsabilidad Civil Extracontractual (Extra-Contractual Civil Liability Policy) for the project's duration.
   • Expert Tip: Demand a certificado de vigencia de la póliza (certificate of insurance) naming you as an interested party before any work commences.
3. Adherence to Municipal Ordinances: The contract must specify the builder's responsibility for complying with all regulations from the local Municipal GAD, including building codes, work hours, and debris management.

Hyper-Specific Detail #1: The Acta de Vecindad

A crucial risk mitigation tool is the Acta de Vecindad (Neighborliness Act). This is a formal, notarized document created before construction begins, signed by you, your builder, and the adjacent neighbor.

• It documents the exact pre-existing condition of the neighbor's property with high-resolution photos and videos.
• This Acta serves as impartial evidence to validate or dismiss future claims of damage caused by construction.

When a Neighbor Takes Action: The Legal Process

An aggrieved neighbor has several legal and administrative tools.

Hyper-Specific Detail #2: The Role of the Comisaría Municipal de Construcciones

The neighbor's first step is often a complaint to the municipal Comisaría de Construcciones (Municipal Construction Commissariat).

• This body can inspect the site and issue sanctions.
• They have the authority to order the suspension of the entire construction project (clausura de la obra) until the issue is rectified.

Hyper-Specific Detail #3: The Denuncia de Obra Nueva

If a neighbor believes your new construction will imminently harm their property rights, they can file a Denuncia de Obra Nueva (Complaint of New Work).

• Governed by the COGEP (General Organic Code of Processes).
• The primary objective is to obtain a judicial order to immediately halt construction (an injunction).

The Definitive Title Risk: Beyond Simple Damages

A construction dispute can directly impact your property title.

⚠️ Title Risk Warning: The Prohibición de Enajenar

If a neighbor sues for significant damages, their attorney can petition the judge to place a precautionary measure (medida cautelar) on your property.

• The most common measure is a Prohibición de Enajenar (Prohibition to Alienate/Sell).
• This is a lien registered in the local Registro de Propiedad (Property Registry).
• It legally prevents you from selling, transferring, mortgaging, or otherwise encumbering your property until the lawsuit is resolved.

An Attorney's Checklist for Mitigating Construction Liability

Before construction begins, ensure these steps are complete:

1. Builder Vetting: Verify the builder’s RUC (tax ID), professional credentials, and IESS (Ecuadorian Social Security Institute) standing.
2. Contractual Fortification: Have an attorney draft a construction contract with robust indemnification and insurance clauses.
3. Insurance Verification: Obtain and review the builder’s Póliza de Responsabilidad Civil Extracontractual, confirming adequate coverage.
4. Create an Acta de Vecindad: Formally document the state of neighboring properties before work begins.
5. Permit Compliance: Verify the municipal building permit (permiso de construcción) is issued and displayed on-site.
6. Boundary Certainty: Commission an updated levantamiento topográfico (topographical survey) to ensure construction is within your property lines.