Copy of article on Eye on Spain:
Consumer Law - Abusive Clauses In Your Contract
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:
1. 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)
2. 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.
3. The stipulation that forces the consumer to pay taxes for which the chargeable person is the builder-developer.
4. 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 L. de Castro
Lawyer
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The other side of the argument is set out in this email from my lawyer. BTW we all received a council notification about Plus Valia owed by us today:
In reply to your e-mail of earlier today, our firm is perfectly aware of this law. However, if you sign an agreement wherein it states the contrary, it is understood that you have knowledge of what you have signed and are in agreement with same. I take this opportunity to bring to your attention that Point C of Clause 11 states:
DÉCIMA PRIMERA.- SERAN DE CUENTA DE LA PARTE COMPRADORA LOS SIGUIENTES GASTOS:
…
C.- Impuesto sobre el Incremento de Valor de los terrenos de Naturaleza Urbana. (Plusvalía municipal).
And again, I repeat, in the title deed it expressly states that you will be liable for the payment of this tax.
For your information, we have knowledge of clients that purchased in another development through another firm who had this same problem and they decided to get together and take the matter to Court. In the end, the clients lost the case and had to pay not only the initial tax, but also the surcharges incurred due to the late payment and the costs of the judicial proceedings.
It is of course your decision as to whether or not to pay this. But as previously stated, your obligation to pay this is clearly stated in the documents and in the event that you do not, an embargo will be placed on the property by the Town Hall and judicial proceedings could be brought against you.