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The Purchase and Sale of Flat Housing and the Contractual Nature of Advertising
Currently, the purchase of off-plan homes is a widespread practice, however, it is not uncommon for some buyer to take the odd surprise, when verifying that the property delivered by the Promoter does not meet the characteristics, surface area, space , or orientation agreed on the day of purchase.
Given that, at the time of formalizing the sale and, therefore, of formalizing the consent, the buyer has not been able to visit the property (since it is still non-existent), contracts are usually accompanied by advertising offers, technical plans, annexed projects, etc., that show the characteristics of the property once its construction is completed (orientation, surface, room, structural elements, facilities ... etc.), this information being what buyers assume and expect to find at the time of delivery.
In this sense, the jurisprudence over the last few years has been determining that all advertising made and / or attached to "future" sales contracts, as well as the technical plans that are an integral part of them, are binding on the parties. and, therefore, any non-consensual or agreed deviation of said content must be considered as a contractual breach, with the legal consequences that follow.
Examples of jurisprudence include the Supreme Court Judgment of March 15, 2010, which includes, in one of its foundations, that the conclusion of contracts for the sale of "future things" imposes a series of specific obligations for the promoter / seller to consider:
"imposing on those who offer, promote or advertise for the purpose of selling homes the fulfillment of certain obligations in order to clarify and specify the terms of their provision so that the buyer has a full representation of what he is going to acquire, which it is obtained from the contractual document and from others that, outside of it, must be understood as completing it (…) ”
Likewise, both the Judgment of the Superior Court of Justice of Navarra of October 8, 1998, as well as the Judgment of the Provincial Court of Asturias of June 11, 2000 or the Judgment of the Provincial Court of Madrid of February 11 of the year 2011 establish that:
“In off-plan sales of homes under construction, homes do not have a current existence, but a future one, although graphically foreshadowed and in the process of being shaped. In them the contractual consent is granted in contemplation of the characteristics- orientation, configuration, distribution, surface etc.- resulting from the plan incorporated into the contract, which in these cases not only has a descriptive function of the contractual object, but also plays a role objectively normative (…).
Any deviation, not consensual, about them must be judged in the context of the breach of the contract and not in that of the erroneous representation of the object at the time of its perfection. ”
In relation to advertising, the Supreme Court Judgment of February 28, 2013 goes further by stating that:
"It is now reiterated that the data, characteristics and conditions that are included in the advertising will be required even if they are not expressly included in the contract concluded (...). Norm that coincides with the Law of defense of consumers and users, both that of 1984 and that of the Legislative Decree of 2007. "
That is to say, not only will everything that forms part of the contractual document be binding for the promoter and / or seller, but it will also be bound by all the information and advertising that it has previously transmitted to the buyer, said advertising being the one that has directly affected in their willingness to buy.
At this point, it is worth mentioning Royal Decree 515/1989, of April 21 on Protection of Consumers regarding the Information to be provided in the Purchase and rental of Homes, which provides that:
"The data, characteristics and conditions related to the construction of the house, its location, services and facilities, acquisition, use and payment that are included in the offer, promotion and advertising will be required even if they are not expressly included in the contract concluded" .
Regarding the price, it must be borne in mind that in the operations of "sale of future things" the object of the contract could not be verified personally by the buyer, and despite the parties having agreed in the contract a "Flat-rate price" (and not a price per square meter actually built and delivered), this is incompatible with the type of contract of "sale of future thing".
Therefore, according to the most recent jurisprudence, such clauses should be considered as not being set.
In this sense, the Judgment of the Toledo Provincial Court of October 3, 1994 includes this criterion stating that:
"The sale in question cannot be classified as the sale of a certain thing, because for this to be the case it would have to exist: only what has a corporeal existence is true. The concept of sale of future thing, currently non-existent, as is the case of the sale of real estate under construction, is absolutely incompatible with the concept of certain thing."
Consequently, when there has been a deviation not consented to by the buyer (surface, structural aspects, finishes, orientation of the property, facilities and services, etc.) between that agreed with the seller (including advertising brochures, plans and annexes) and what actually delivered, there will be a clear breach of contract and the buyer will be empowered to file the corresponding legal actions.
In any case, and in general terms, we must comply with the provisions of article 1,124 of the Civil Code, by virtue of which:
"The power to resolve the obligations is understood implicitly in the reciprocal, in the event that one of the obligated parties does not comply with what is incumbent on him. The injured party may choose between demanding compliance or resolution of the obligation, with compensation for damages and payment of interest in both cases.
You may also request the resolution, even after having opted for compliance, when it proves impossible ”.
The jurisprudence has established over the years that the mechanism of article 1,124 of the CC can be used in those cases in which the acquirer does not receive the agreement or when receiving it, what is delivered does not meet the buyer's expectations. In accordance with the information provided in the pre-contractual phase.
Therefore, not only must we comply with the provisions of the clause of the signed Contract, but the information and documentation previously provided, in the pre-contractual phase, will also be binding.
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