In today’s article we are going to talk about whether it is possible to claim, after the purchase of a property, when there is a surfaces difference. In other words, the surface reflected in the contract, does not match with the actual surface.
The possible legal consequences, if the property handed over has a larger or smaller size or surface; than the agreed; are foreseen in the Spanish Civil Code (Cc). Specifically in articles 1469 and following ones.
Thus, we can distinguish between two assumptions.
1.- Purchase and Sale in which the price is set by area or square meters.
According to article 1469 Cc. If the purchase and sale, it is done with indication of the surface, and at the rate of a price per square meter. Then, the vendor must deliver the area agreed in the contract. And if it is not possible, the buyer may request a proportional discount. Or where appropriate, the termination of the contract, if difference, exceeds the 10%
If the surface is bigger, the excess could be claimed by the seller. Unless it is more than 5%, in which case, the buyer may decide to terminate the contract or pay for this difference.
2.- Sales by lump sum price.
When the sale is made for a lump sum, for example, a price per square meter is not set. In this case, there will be no right to an increase or decrease the price, if the area or surface is different. That is, if a bigger or smaller property is handed over. All this according to article 1471 Cc.
It is what is known as a AS IS ( cuerpo cierto). That is, a property is bought and sold, not based on a specific area, or on a price per m2. Therefore, it is bought what have been seen, the surface that is between the boundaries.
Legal period to claim for the difference in surfaces
According to article 1472 Cc, for the claim for reduction in the price, increase or, where appropriate, the termination of the contract; the term will be 6 months for this type of legal actions.
Practical examples of possible claims.
In practice, when buying real estate property in Spain, it is normal to be done AS IS. That is, normally the purchases are not done at the rate of € per m2 of plot or construction. And the surface details of the cadastre or registry are usually used in contracts.
Therefore, if the construction (house) or the plot has a smaller surface, as buyers, you may not be able to claim. Or as sellers, claim more price, if the real surface is greater, than what was indicated in the contract.
A different case are the purchases of properties off-plan. In this case, if the developer hands over a smaller property at the end of the contract. We understand that it could be claimed for compensation. Maybe not so much, based on these articles; as the property did not exist when signing the contract.
But base, on the contractual obligations and breach, as the developer is not delivering what was agreed.
The information provided in this article is not intended to be legal advice, it merely conveys information related to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
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