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BASIC GUIDE OF THE
REAL ESTATE CONSUMER.
Act 26/1984, of 19 July, General for the Defence
of the Consumers and Users. Real Decree 515/1989, of 21 April, on
Protection of the Consumers and information to provide in sale.
Without damage of the fulfilment of Law 34/1988,
of 11 of November, General of Publicity, all supply, promotion and publicity
directed on sale or renting of houses will be adjusted to the true characteristics,
conditions and utility of the house, always expressing if it is in construction
or if the construction has concluded. The Promoter must have the
following information to public disposal:
a) Name or trade name, address and data of the
Promotional Society, filed with the Commercial Registry.
b) General location and house maps, in addition
to the description and layout of the networks: electrical, water,
gas and heating; as well as the guarantees of the same ones, and
the safety measures against fires whereupon count the building.
c) Common house description with expression of
its useful surface, zones and accessory services.
d) Material employees, including heat and acoustic
insulators.
e) Instructions of use and conservation of the
facilities, that demand type of performance or special knowledge;
and on evacuation of the building in case of emergency.
f) Data of the building filing with the Real
Estate Registry or mention of not being filed.
g) Total Price or accessory rent of the house
and services and way of payment.
In the event of being promoted houses, it
will be necessary to have additionally at public disposal:
1) Copy of the legally demanded authorisations
for the construction of the house and the city-planning certificate of
the property, in reference to the fulfilment of the re-parcel or compensatory
operations, as well as of the license or equivalent act for the use or
common occupation of the house, zones and accessory services.
2) Statutes and norms of operation of the Building
Condominium, in its case, as well as information of contracts of services
and provisions of the community. If the Community of Proprietors
is already operative, it will facilitate a report of accounts and obligations
of the house object of sale.
3) Information on the payment of the tributes,
all liens and encumbrances that burden the property or use of the house.
4) Formalities in which it is expected to document
the contract with its general and special conditions, pointing out in specially
legible way the following questions:
a) That the consumer will not support the derived
expenses that correspond legally to the seller.
b) articles 1280 and 1279 of the Civil Code.
c) the right to the Notary election that corresponds
to the consumer, not being possible to appoint a notary that, by its territorial
competition, lacks reasonable connection with the personal or real business
elements.
5) In case the common house, or zones, or accessory
elements, are not totally built, will be pointed out with all clarity the
date of delivery and the phase in which the construction is.
6) In case of first transmission, will be indicated
the name and address of the Architect, and the name or trade name and address
of the Constructor.
- The information will be specially detailed and
clear as far as the sale price, being due to have to the public disposal
and the competent authorities an explanatory note that will contain the
following data:
1. total sale price, being understood that
it includes, in its case, the Agent fees and VAT or Transfer Tax, if applicable.
2. Payment way. In case of postponed
payment, it will be mentioned the interest type applicable to principal
and interests and additional costs and expenses.
3. Admitted payment ways for the postponed/outstanding
amounts.
4. Being advanced the subrogation
of the consumer in some credit operation non-arranged by him, with real
guarantee on the own house, it will be clearly mentioned all data of the
notary that issued the deed, date of this one, filing data with the Real
Estate Registry, and the mortgage liability that corresponds to each house,
with reference to expiration date and amounts.
5. Guarantees for the outstanding payment
of the price to be provided by the purchaser.
-- In the explanatory note, it will be pointed
out that any amount given by the purchaser, or on behalf of the purchaser,
will be set off against the total sale amount and before formalising the
operation.
-- In case the house is not totally finished,
there will be at public and competent authorities disposal, copies of the
document or documents regarding the amounts guarantees given according
to Law 57/1968 of 27 of July.
-- When brochures or similar documents are given,
they will point out the data on location and the contents in numbers 1,
3, 4, 6 and 7 of article 4 and articles 6 and 7, with indication of the
validity of the here-above mentioned. Furthermore, it will be pointed
out the places where the information regarding these articles is at public
disposal.
-- At the contract signing, all house purchaser,
included within the Real Decree scope of application, is entitled to receive
(at seller's expenses) copy of documents referred to by here-above articles.
-- the contractual documents of transaction, or
renting of houses, will be written up with the due clarity and simplicity,
without reference or remission to texts or documents that are not previously
provided, or simultaneously, to the celebration of the contract.
Furthermore, they will have to attend the good faith principles and right
counterbalance, which, among others, imply the prohibition of inclusion
of clauses that:
a) do not reflect with clarity, or they omit,
in the cases of deferred payment, the postponed amount, the type of annual
interest on the pending balances of amortisation and the conditions of
amortisation of the granted credits and the clauses that anyway authorise
the salesman to increase the postponed price during the enforcement of
the contract.
b) impose an increase of the price by accessory
services, financing, postponement, surcharges, indemnification or penalties,
that do not correspond to additional benefits, that can freely be accepted
or rejected by the buyer, or renter and do not correspond to the contract.
To such effects:
1, The work reforms motivated in diligently
non-foreseeable causes at the moment of approving the urbanisation projects
or construction, that will produce modification of the stipulated price,
will be previously reported to the purchasers, who will have to provide
their conformity to the exact quantity that the reform produces.
2, The reforms that the purchasers propose
will be also object of documentary formalisation, with a description of
its content, and to make specific the repercussions that affect the price
and delivery time, that had been agreed to.
c) Imply the repercussion to the buyer or
renter of failures, administrative or banking defects or errors that are
not directly imputable to them.
d) Imply, in the first sale of houses, the obligation
to pay the expenses derived of the preparation from the documents, that
by law or nature, corresponds to the salesman (new work, horizontal property,
mortgages to finance its construction or its division or cancellation).
-- the publicity, promotion and supply of houses
of official protection will be governed by the corresponding norms of their
specific legislation and, in not being foreseen, by the rules of the referred
Real Decree.
-- the rules of this Real Decree will be of auxiliary
application with respect to the Autonomous Communities that statutorily
have assumed the total competition for the defence of the consumers and
users, except articles 3, sub-clauses 2, and 10, that will have use in
all the State by virtue of the arranged matter in rule 8 of article 149,1
of the Spanish Constitution.
e) And the Autonomic legislation that is applicable
in each case, since certain Autonomous Communities have developed, by virtue
of its competencies, own laws on the construction, that may comprise analogous
dispositions.
Basic requirements:
1, The content of the supply, promotion
and publicity will be indispensable by the user, even though they do not
appear specifically in the contract, and if despite the here-above mentioned,
this one contained more beneficial clauses, these will prevail.
2, The omission, in cases of postponed payment,
of this amount, type of annual interest on pending balances of amortisation,
and the clauses that anyway authorise the seller to increase the postponed
price.
3, The stipulation by which the buyer has
to assume the expenses derived from application of the documents arrangement
that by their nature correspond to the seller (new work, horizontal property,
mortgages to finance the construction or its division and cancellation).
4, To provide foreseeable instructions for
its correct use, warnings and risks. To provide the buyer with a
complete documentation subscribed by the seller, describing, in plant on
scale, the house and the layout of all its facilities, as well as the materials
used in its construction, specially those to which the user does not have
direct access. Law 19/1993, of 28 of December, on determined measures
of prevention of the money laundering.
This norm affects to the activities of Real Estate
Promotion or buildings transactions, settling down like specific obligations:
- To demand, by means of the presentation of proper
document, the identification of its clients, at the moment of the operation.
- To keep by a minimum of 5 years the proper documentation
of the conducted operation. Law 57/68, of 27 of 1968 July.
Guarantees for payments in advance. Modifications of Building Act.
All resulting from Act 57/68, of 27 of July of
1968, that requests for the free houses (units are not required to fulfil
with this obligation) whose contract becomes effective before delivery,
will be due to deposit the paid amounts, in a special account of a banking
organisation or Savings bank, being this amount only destined to take care
of the necessities derived from the construction of the houses. Also,
it is necessary to assure these given amounts, by means of a guarantee
issued by an insuring organisation filed with the Registry of the General
Subdivision of Insurance or with an organisation filed with in the Registry
of Banks.
This endorsement will guarantee the return of
the amounts given plus 6 % of annual interest, in case the construction
does not begin or it does not arrive at his aim by any cause within the
suitable term, or the habitability certificate is not obtained. The
following ones are obligations of the Promoter:
-- To declare in the commercial sale spots the
name of the insuring organisation and the special account.
-- to deliver individually the document that credits
the here-above mentioned to each buyer. Although the law requires
to guarantee all given amounts, and that these are deposited in special
account, with conditional availability, interpretation problems exist on
the practice of this rule.
Building Act. The following modifications to Law
57/1968 take place (first additional disposition).
The amounts advanced in the promotion to the promoters
or managers will be guaranteed by means of an insurance that compensates
the resulting effects of the breach of the contract in analogous form to
the foreseen in Law 57/1968, with the following modifications:
a) It will be of application to the Promotion
of all type of houses, even those under Community of Proprietors or co-operative
regimes.
b) the guarantees will extend to the amounts given
in cash or by means of any exchange effect whose payment will be filed
with the referred special account in the mentioned law.
c) the guaranteed return will include the amounts
given plus effective legal interests up to the moment at which the return
becomes effective.
d) the fines by breach will be introduced by the
Autonomous Communities in quantity, by each infraction, up to 25 % of the
amounts whose return must be assured.
Basic legislation:
1, Act 26/1984, of 19 of July, General for
the Defence of the Consumers and Users. Real Decree 515/1989, of
21 of April, on protection of the Consumers and information to provide
in sales.
2, Law 19/1993, of 28 of December, on determined
measures of prevention of the money laundering.
3, Law 57/68, of 27 of 1968 July.
Endorsement of Amounts against the account. Modifications of the
Building Act. |
