SPANISH LAW IN THE UK

Spanish Law in plain language

THE PROPERTY PURCHASE CONTRACT IN SPANISH LAW III

September 16th, 2013

negociacion-6-thumbCONTRACT STAGE: CONSUMER PROTECTION AGAINST UNFAIR CLAUSES

By David Lorenzo-Spanish Lawyer UK

 

The contract itself is a source (or can be) for many problems, both for its content and the execution. We will combine the performance of the contract, to the problems arising after the execution, and in this section we will focus on the actual conflict emerged contractual clauses. In most cases, it will be contracts by general conditions, also called adhesion contracts.

It is necessary to buy the flat to a professional (real estate agency, developer or the builder). When you buy the flat, the contract may be negotiated between the parties, or it may be a “contract of adhesion”, also named of “general conditions”. In the latter case, the consumer’s real capacity to influence the content of the contract is negligible, since the contract is drafted and imposed by the professional, but consumers can discuss their terms (except any particular, such as the payment, or similar).

In adhesion contracts concluded with consumers, applies the content control to the general standard terms to avoid the existence of unfair terms.

They are unfair, as provided in art. 82.1. TRLCU, “all those stipulations not individually negotiated and all those practices did not expressly agreed that, contrary to the requirement of good faith cause, to the detriment of the consumer, a significant imbalance in the rights and obligations of the parties under the contract.

ABUSIVE CLAUSES REFERRED TO SECTION 89.3TRLCU (CONSUMER RIGHTS ACT):

The clause provided for in art. TRLCU 89.3 provides that in any case has considered abusive: “The consumer imposition of documentation and processing costs that relate to professional” .In particular, in the sale of homes:

a) The stipulation that the consumer has to bear the costs of preparing the certification that apply to the professional nature (new construction, condominiums, mortgages to finance their construction division and cancellation).

b) The provision requiring the consumer to be subrogated to the mortgage professional home or impose penalties in cases of non subrogation.

c) The provision imposing to the consumer tax payment in which the taxpayer is the professional.

d) The provision imposing  to the consumer the costs of establishing access to general supplies of housing, when it should be delivered in living conditions.

David Lorenzo-Spanish Lawyer UK

THE PROPERTY PURCHASE CONTRACT IN SPANISH LAW II

September 11th, 2013

By David Lorenzo Spanish Lawyer UK

PRE-CONTRACTUAL
In this phase, problems can arise from two fronts: on the one hand, advertising, offering or promoting the sale of homes, and secondly, the information that is provided.

1.-THE ADVERTISINGfinanciera-7-thumb
The judgments existing in this field mainly focus on problems arising from the mismatch between advertising and housing made ​​subsequently delivered

First, we must take into account that is the same as the publicity is given by the seller, the developer, or builder, provided it is known by the consumer, and not be rectified prior to hiring.

Also it should be noted that the content of advertising may be required even if there has not been reflected in the contractual clauses. According to the Supreme Court: “These are documents that contain advertising activity, intended to attract customers constituting a clear offer, such advertising must integrate contracts, otherwise would have expressly excluded the advertising content.”

All advertising is now contractual, because their content may be required by the consumer, provided that there has been rectified, although not expressly stated in the contract or document or voucher received.

The mismatch between supply (or advertisements) and housing delivered may refer to any element of the building, and therefore it may be common elements such as particular. Moreover, the claim of the lack of correspondence between advertising and labor supply can be delivered both by defects of information, such as existence of construction defects or flaws in the work delivered.
It should be noted that in case of disagreement between offer or advertisement to the property delivered, the consumer must prove the existence of such question and do their part (pay the price) or at least be willing to comply (eg, by judicial appropriation price), because taking a sharp stance, of failing until all differences are settled sometimes can lead to be considered defaulting party (depending mainly on the degree of organization of these differences between the advertised or offered and the thing given)

2.- INFORMATION TO BE PROVIDED TO CONSUMER

The information is a basic right of consumers, and is of particular importance in this area, so it has been specifically regulated, establishing both the information that developers or builders are required to make available to the public (site plans housing, description, materials used), such as the buyer must provide the consumer (compliance with planning regulations, statutes and rules of operation of the homeowners, or information about the payment of taxes).

The information obligation is fulfilled in two stages:

Essentially in the pre-contractual stage by promoter statements or brochures, and contractual phase by providing the necessary documentation.

In the contractual phase of the first purchase of a home, the developer must provide the consumer “Book Building”, which consists of the project with the changes approved, the record of reception of the work, the link of the agents in the building, and the instructions for use and maintenance of the building and its facilities, which the buyer is obliged to preserve and transmit.

If the developer facilitates faulty information, there is no correspondence between advertising and housing delivered, and will be in breach of its contractual obligations.

David Lorenzo-Spanish Lawyer UK