Know Your Rights!
There is a very important principle of contractual law in the Spanish
Civil Code that states: ”The
contracting parties can establish all the agreements, clauses and
conditions that they may find necessary, provided they are not against
the Law, the morals or the Public Order” . It is called the “Autonomy of the will Principle”.
Taking that into account can help us to understand what the truth is in that “an
agreement is a Law between parties”.
For the peace of mind of consumers (purchasers of properties) , Spanish
Law regarding abusive clauses is very clear and these abusive clauses
are a very important limit to the autonomy of the will as they are
considered against the Law.(Please see a list of Null and Void Clauses).
Anyhow, play your part in the negotiation (with the assistance of a
good lawyer) in order to use this freedom for the protection of your
rights and a smooth purchase process. For example when signing a
deposit contract.
The deposit contract is a contract by which one party (the
buyer) is obliged to pay to the other party (the seller) an amount of
money as a deposit or guarantee for the fulfilment of a sales contract,
and this party (the seller) is committed to sell the house to that
person within a determined deadline and according to the conditions
agreed thereby. The conditions agreed regarding the return of monies
paid, cancellation… need to be balanced and equivalent between parties
in order to be respectful with the standards of the protection of the
Consumers´ rights. Any abusive clause is coinsidered null and void and
not enforceable.
The above mentioned contract must gather, in detail, the main
aspects of the agreement that has been reached, such as the full
identification of seller and buyer, plus enough, official and clear
identification of the property (Nota simple required, click here
for more information), definition of the contract which is being
signed, agreed price, method of payment (expressing if any amount is
delivered as a deposit or on account of the price); who will pay the
expenses and taxes, time within the public deed needs to be signed,
etc… The more in detail and tight, the more peaceful your purchase
process will be. It is also important to bear in mind that there is
very recent legislation on Information requirements when selling houses
in Andalucia (please see: http://www.costaluzlawyers.es/eng/?p=22
and http://www.costaluzlawyers.es/eng/?p=24
)
The return of amounts handed as a deposit will depend on the fulfilment
of the conditions agreed in the deposit contract. It is very advisable
to have a compensation clause that will avoid further discussions on
this important matter. There is big room for negotiation here. Remember
the aforementioned principle on “Autonomy of the will” in Contractual
Law.
On the other hand, if it is the seller who is not complying
with the agreed deadline, or decides not to sell without a justified
reason or to sell the house to a third party, he will have to
compensate you according to what is stated in the deposit contract.
In the case that the sale is finalised within the agreed deadline, the deposit will be considered an advanced amount on account.
It is needed to pay a lot of attention to this contract as it is
as important as the sales contract itself and you can be committing
yourself to conditions that will determine the purchase at a very high
level.
Written by
Maria de Castro
Lawyer
Maria de Castro is a Spanish Lawyer and the Director of the Law Firm www.costaluzlawyers.es.
She specializes in advising private foreigners in Spain and making the Spanish adventure a good dream. You can contact her at
mldecastro@costaluzlawyers.es