AS we have pointed out in a previous article, it is possible that after the sale of a property, some building defects, or other problems may come to light that could affect the use of the property or its value.
This is generally known as a hidden defect and in such cases, it is possible for the buyer to lay a claim against the vendor, but to comply with the law (article 1490 of the Civil Code) such a claim must be made within six months of the completion of the purchase of the property.
There are however some exceptions to this and in a scenario where the problems that are discovered or appear in the property are major and considered extremely serious, then the deadline to claim could be much longer, ranging from 5 to 15 years depending on the date of the agreement to purchase the property made between the parties. This is known as ALIUD PRO ALIO, (one thing for another).
Such an option arises in a case (excluding hidden defects) where the problems or defects are of such importance, that it can be considered that the contract has been breached completely, for example, should the property prove to be is unstable or unfit to be used for the purpose for which it was purchased and is therefore to the detriment of the buyer.
In these cases, the buyer will have the protection provided in the Spanish civil code (articles 1101 and 1124) and may claim against the seller for essential breach of the contract.
In essence the difference between a case of hidden defects (where there are only six months to claim) and a claim for handing over a different property (ALIUD PRO ALIO with a much longer period to claim); is that it would be considered a hidden defect matter, when a service or thing made or delivered is defective or incomplete, or when the deterioration, damage or irregularity makes its use or utility more difficult.
The situation would be considered as ALIUD PRO ALIO, when a service or thing is made or delivered which is completely different to that agreed, or the defects, problems, etc. make the thing completely inappropriate and useless for its purpose.
Helpful in differentiating between these two cases, is the decision of the Provincial Court of Barcelona Section: 1, dated: 02/11/2004, number 783/2004.
This doctrine of ALIUD PRO ALIO, has no specific regulation in the Spanish Civil Code, although it is based on article 1,166 CC, that states that it is not possible to expect the creditor (in this case the buyer) to receive something different from what had been agreed.
Based on the information detailed above, if you have bought or sold a property in Spain and serious defects and problems have appeared and you want legal advice from expert lawyers, contact us and we will advise you.
The information provided in this article is not intended to be legal advice, it simply transmits information related to legal issues.
Carlos Baos (Lawyer)
White & Baos
Tel: +34 966 426 185
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