Off plan purchases and Consumer Law

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04 Oct 2022 11:56 AM by mariadecastro Star rating in Algeciras (Cadiz). 9419 posts Send private message

mariadecastro´s avatar

Indeed, the issue of the consideration of Law 57/68 purchases as investment purchases is one of the points that, in our opinion, is not yet clear in the Supreme Court Jurisprudence.

The most important turning point in this area has been when the Supreme Court has established Case Law which  affirms:

From Case Law of this court it is clear that the application of Law 57/1968 depends, in accordance with its art. 1, not on the consumer status of the buyer, but on the fact that the dwelling in question is intended as a domicile or family residence (judgments 360/2016, of June 1, and 420/2016, of June 24), a purpose that must be alleged in the
 and, in the case of a commercial company as in this case, it must be duly proven ( judgments 360/2016, of June 1, and 420/2016, of June 420/2016).(Judgments 360/2016, of June 1, 40/2016, of June 24, 675/2016, of November 16, and 161/2018, of March 21, among others).

This recent Case Law leaves all the claimants of the law 57/68 outside the protection of Consumer Law which states that the profit motive of an operation is not outside its scope as long as it is not done habitually, as part of the professional or commercial traffic of the individual

Thus, for instance: a doctor who buys three houses in order to keep one and re-sell two and thus pay for the first one, would fall within the scope of Consumer Law, because this is not the doctor's usual professional or commercial traffic.

If we limit the application of Law 57/68 to purchasers of first or second homes, then the above case would fall outside the protection of the Law.

We wrote an article about this some time ago:

https://www.legaltoday.com/practica-juridica/derecho-civil/civil/debe-interpretarse-la-ley-5768-a-la-luz-del-derecho-de-consumo-europeo-2020-01-17/

Regarding the burden of proof of investor status: It is the Bank's unless there is  some index/evidence of the investor nature of the buyer (buying two or more homes,  company as buyer) in which case, the burden of proof is reversed, being then on  the buyer/claimant

 



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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