Can I demand the delivery of housing?
The buyer can apply for either the termination of the contract of sale and delivery of housing, forcing the seller to comply with the agreed.
Todos conocemos que la trading, as consensual contract, bilateral, reciprocal and typical, is perfected from the moment in which the conditions required by Article 1.261 the Civil Code to form contract: consent, object and cause of the obligation to be established. However, it must be remembered that the consummation, namely, the satisfaction of the interests it represents the contract validly perfected for each of the parties, only occurs in the sales contract when, for the seller, the full price agreed is delivered, and, for the buyer, the whole thing sold is delivered. The question is:It presupposes the lack of administrative license of occupation the lack of delivery of the thing sold?
The First Chamber of the Supreme Court issued a ruling 3732/2016 of 22 July 2016 in addressing this issue again.
In this particular case, the parties entered into two contracts of sale for which the buyer agreed to pay a certain price (with anticipated delivery of part) and the seller to deliver to the buyer two houses whose works should finish the 31 August 2008, as well as public deed granting such contracts. On date 13 July 2008 certificate issued final work of these properties, but, to date 22 February 2011, the seller had not required the buyer to raise the private contract deed and, thereby, traditio effect of the thing, por lo que la compradora interpuso demanda solicitando que la vendedora demandada fuera condenada al cumplimiento íntegro del contrato.
El Juzgado de lo Mercantil Nº 1 Santa Cruz de Tenerife gave judgment of 20 September 2012 understanding that the applicant company had failed to prove that the defendant had not gone to the notary to grant deed of sale of both houses, or that the vendor would have required the buyer to pay the full price. Also, incurring excess apparent incongruity, He agreed the termination of the contract of sale, condemning the seller to repay the amounts paid in advance by the buyer.
Contra dicha sentencia se interpusieron recursos de apelación por las representaciones respectivas de las partes demandante y demandada. These resources were resolved by Section 4 of the Provincial Court of Santa Cruz de Tenerife by sentence 23 July 2013, in which, Extra appreciating petita incongruity in the judgment of first instance, He assessed that the selling defendant had fulfilled its obligation agreed, to the extent that the work had been completed within the period agreed, and he dismissed the lawsuit filed by the buyer.
Faced with that judgment, la entidad demandante formuló recurso de casación para ante la Sala Primera del Tribunal Supremo, alleging infringement, by undue inapplicability, the provisions of Article 1445 Civil Code, in conjunction with Article 1124 Civil Code. In his view, the lack of requirement to grant deed of sale and the failure to obtain administrative licenses of occupation for each of the properties assumed that the seller had breached its obligation to deliver agreed in contract. Quote even in his argument the judgments of the First Chamber of the Supreme Court 10 September 2012 and 10 June 2013, They are stating that corresponds to the selling party to demonstrate "the ancillary nature and not essential" for the lack of such license (namely, the failure to obtain the license of occupation does not prevent the property to the proper use).
Solving the resource, la Sala Primera del Tribunal Supremo dicta la sentencia que venimos comentando concluyendo que, really, the saleswoman defendant had not fulfilled its obligation to deliver the thing because he had not given reliable -after requirement to Buyer deed of sale contract and should also obtain the necessary administrative licenses occupation of the property item for sale.
Grant deed is no obligation itself is implied in the contract of sale. To which the seller agrees to deliver what is sold, but the granting of the deed may constitute a form of symbolic traditio (perhaps greater security which provides the legal business of all those anticipated in our legal system) mandatory if the parties agreed to in the contract so.
Como conclusión podemos decir que es recomendable la inclusión el su contrato de compraventa la finalidad de aquello que se recibe de la otra parte (a service or thing, as a property in this case), as this will help later date to justify a possible incomplete delivery, as in this case we have seen that occurs with administrative licenses occupation.