There has recently been passed a Law, ( Law 44/2006) dated on the 29th December 2006, for the improvement of the protection of consumers and users. It has specific mention to what are considered abusive clauses in Real Estate purchase contracts.
Therefore it is not any more a matter of Court Decisions (subsidiary source of Law in our legal system) but of Law (primary source of Law). It is in force since the 31st of December 2006.
About nullity of abusive clauses
Provision 10 bis.1 of Law 44/2006 affirms:
“It will be considered as abusive clauses all those which have not been individually negotiated and all those practices which have not been expressly agreed and that, against the standards of the good faith, produce, to the detriment of the consumer, an important imbalance between rights and obligations of the contract parties (…)”
The consequence for an abusive clause are the same: null and void ipso iure, and they will be omitted in the contract and considered as inexistent.
The Administration can demand the offender to compensate the consumer.
Regarding abusive clauses when selling houses.
A list of specific abusive clauses in the sale of houses:
- The stipulation that forces the consumer to pay the expenses related to the initial legal title of the house (new work deed, horizontal division deed, mortgages deed for the building or its division or cancellation deed)
- The stipulation that obliges the consumer to assume (subrogate into) the mortgage of the builder/developer or which imposes penalties if not assuming that mortgage.
- The stipulation that forces the consumer to pay taxes for which the chargeable person is the builder-developer.
- The stipulation which obliges the consumer to pay expenses related to the setting up of access to general supplies of the house.
Houses need to be handed over in good habitable conditions.
Any clause in purchase contracts containing one of those abusive terms or anything related will be considered as inexistent and therefore unforceable by developer/builder.
Written by: Maria de Castro
About the author: Maria de Castro is a Spanish Lawyer and the Director of the Law Firm www.costaluzlawyers.es.
Costa Luz Lawyers are contract and consumer real estate law specialists covering all parts of Spain. You can contact Maria at mldecastro@costaluzlawyers.es
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