Everyone wants to solve: Who is the first?
Buyer and seller want to solve the housing sales contract plan Who is the first?
The question is not trivial, pues si es el comprador quien resuelve justificadamente, normally you entitled to recover the amounts advanced with interest. However, if it meets the promoter, se podrá quedar con parte de las cantidades entregadas a cuenta.
The housing crisis dynamited numerous housing sales contracts especially in cases of properties under construction or sales plan.
El Tribunal Supremo ha resuelto uno de estos casos en Sentencia de 21 September 2016.
D. Silvio bought a house under construction by private agreement dated 27 September 2006. He gave as an advance 52.350 euros. And it was agreed:
"The deadline for execution of works is estimated at twenty months starting from the beginning of the same, making delivery to the buyer signing the Deed of Sale, which will take place in the second quarter of 2008, once it has obtained a license of first occupation, except in cases of force majeure, if, they would be communicated to buyers establishing scheduled for completion and delivery of housing new date. "
“The delivery of housing may be advanced or delayed over a period of two months, without the buyer can make a claim for this reason”.
In late August 2008 and therefore, after both agreed period and its extension, the house was not completed.
The 2 October 2008, He required the buyer to the seller for granting and public writing within a maximum period of 10 days, under penalty of giving terminate.
API said that housing was "practically finished" and that soon the first occupation license be obtained.
The 24 October 2008, He reported that the buyer was terminating the contract, demanding the return of 52.350 anticipated euros plus legal interest.
The first occupation license is granted 29 December 2008.
In 6 May 2009, API sent a fax to the buyer, accompanying a notarized request dated 3 April 2009 in stating that had subpoenaed D. Silvio public deed formalizing the sale and that in the absence of the buyer, the seller had chosen to terminate the contract, staying half of the amounts advanced (namely 27.887 euros).
D. Silvio lawsuit filed 9 November 2011 Arquis against S.L.U Real Estate Projects. (hereinafter API) seeking a declaration terminated the contract of sale and sentence the defendant to refund payments on account made in the amount of 52.350 euros, plus interest and costs.
API answered the demand. He claimed the concurrence of circumstances beyond their rated force majeure justifying the delay will. He also brought a counterclaim seeking a declaration terminated the contract by unilateral withdrawal of the plaintiff.
The Court of First Instance No. 19 Seville gave judgment on 23 October 2012, estimating demand D. Silvio, declaring the contract void and condemning the defendant to return 52.350 euros and rejecting the counterclaim.
API filed an appeal and 8th Provincial Court of Seville gave judgment section esteeming in date 20 January 2014. D demand was rejected,es. Silvio and declared the contract terminated, API being held by the amount of 27.887 euros (50% the anticipated amount). He considered that the term was not essential and that the Court itself had been considering if the delay was less than one year, lacked effects adjudicative.
So D. Silvio filed an appeal to the Supreme Court, based on the following reasons:
1.- Infringement of general principles of law "lex contractus" (art. 91 C.C.), "agreements are to be kept (art. 1258 C.C.), "Necessitas" essence of the obligation, (article 1256 the same legal body), in addition to the provisions of Articles 1100, 1101, 1108, 1124, 1281 ff, 1288, 1461 and other provisions of the Civil Code, and Article 5.5 Royal Decree 515/1989, of 21 April, en cuanto la Audiencia Provincial de Sevilla considera no esencial el plazo de entrega fijado unilateralmente por la promotora vendedora en un contrato de compraventa de vivienda en construcción.
2.- Non-application or misapplication of the principle “prior in tempore, powerful right”, and Articles 1100 , 1124 and other provisions of the Civil Code , since the Provincial Court of Seville states, in the judgment here under appeal, que la parte que incurre en mora es la que ha cumplido todo lo que le incumbe, against which it has truly in default in fulfilling its obligation, and imposes the obligation to compensate the injured first, thereby violating the most basic principles of the legal system.
The High Court rejected the first plea and estimates the second.
For the Board, the criterion of the Hearing on within one year late, It lacks any legal or jurisprudential foundation and breaks the balance of the contract, to indiscriminately grant a grace period of very considerable duration sellers without any equivalent item for the buyer.
It is not accepted that once the deadline and extension expired, the seller intends to retain half anticipated by "alleged" unilateral withdrawal buyer.
The buyer, He was entitled to terminate the contract after having enforce a delay for reasons attributable to the seller (or that it does not prove that they were not attributable to him).
In summary, the resource estimates, the judgment and the Hearing handle and the judgment of the first instance is confirmed, which recognizes the right of the buyer to terminate the contract purchase plan and to recover the amounts advanced by the delay incurred by the developer.