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