The keys to sanitation due to eviction in the sale of real estate

Keys sanitation eviccion compraventa

In this article we are going to analyze the fundamental keys of the eviction sanitation in the framework of a real estate sale.

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Eviction sanitation concept

Eviction sanitation is one of the ways in which the sanitation obligation that, along with the delivery of the thing sold, weighs on the seller, in accordance with the provisions of the article 1.474 Civil Code (onwards, CC), when you arrange that "By virtue of the sanitation referred to in the article 1.461, the seller will respond to the buyer: 1º Of legal and peaceful possession of the thing sold. 2º Of the hidden vices or defects that it had ". The second modality, that we do not study in this report, is sanitation for hidden defects, referred to in article 1,474.2º CC.

In accordance with said articles, yes in our order, the seller is obliged to guarantee the buyer the legal and peaceful possession of the thing, protecting the buyer against any legal disturbance of the acquired title.

Eviction liability requirements

The seller's liability for eviction depends primarily on the, judicially claiming a third party the ownership transferred with the sale, the buyer loses it and the demand prospers. To this article refers 1.475 CC when it indicates that "The eviction will take place when the buyer is deprived, by final judgment and by virtue of a right prior to the purchase, all or part of the thing purchased. The seller will be responsible for the eviction even if nothing has been expressed in the contract. The contractors, however, may increase, decrease or delete this legal obligation of the seller. "

Two kinds of requirements result from the transcribed precept, uno, of a material nature, and, otro, procedural in nature. As material requirements are identified those relating to the validity of the contract, the deprivation of total or partial of the thing by means of judicial sentence or administrative resolution dictated, and that this takes place by recognizing a pre-purchase right. As a formal requirement is the obligation to notify the seller of the eviction.

Validly concluded contract

The existence of a validly concluded sales contract is a fundamental requirement for the birth of the liability for eviction, it will only be applicable in the cases in which the sale is ineffective with respect to the translational effect that is tied to the contract, for which it is necessary that the buyer lose the thing received because a third party claims it and said claim is estimated.

Accordingly, eviction sanitation will not be applicable in cases of simulated sale.

Total or partial deprivation of the thing

In accordance with the provisions of article 1.475.1º CC, fundamental assumption is that the buyer is deprived of the object of the sale contract. The doctrine reminds that deprivation does not have to imply a loss of possession, but the determining factor is that the buyer loses effectively, whether material or legal, what he had received for the sale contract.

Sentence in an eviction trial

Also, Said deprivation must be the consequence of a final judgment that considers a demand in which the full ownership of the thing or right sold is effectively claimed.. Not enough, therefore, the disturbances indeed, nor the exercise by third parties of a possessory action.

Now, the expression "final judgment" must be interpreted extensively, also including those administrative resolutions conducive to enforcing the responsibilities to which the assets are subject.

Right prior to purchase

Equally, the reason for the eviction must be the existence of a right prior to the conclusion of the sale contract, so that, and general, the seller shall not respond when the loss occurs due to events subsequent to it, except in indicated cases in which the seller's conduct may necessarily also generate criminal liability.

Seller notification

Regarding this last requirement, establishes the article 1.481 DC "The seller will be obliged to the corresponding sanitation, provided that it is proven that the eviction claim was notified to the buyer. Missing notification, the seller will not be obliged to clean up. ” In addition to the above, Article 1.482 CC establishes the regime to be followed by the defendant buyer who intends that the demand be notified to the seller, regime that in any case must be complemented by the provisions of the article 14 Act 1/2000, of 7 January, de Enjuiciamiento Civil (LEC, onwards).

Eviction regime

Within the eviction regime, there are several elements that we must deal with. The doctrine usually differentiates between previous effects and later effects, but here we will identify them distinguishing the possible modifying pacts from the eviction of the effects themselves.

Agreements of resignation or increase of the guarantee of sanitation by eviction

On the one hand, there is the possibility of excluding the obligation to clean up by eviction from the legal regime of the sale contract. We have already seen that the article 1.475 CC establishes the seller's liability for eviction unless otherwise stated in the contract, as, a sensu contrario, points out that it is possible to include in the contract a pact that excludes the seller's liability for eviction.

In that sense, It has been concluded that the total or partial renunciation of this sanitation does not contravene the provisions of article 6.2 CC, as long as there is no bad faith on the part of the seller, in accordance with the provisions of the article 1.476 CC.

Regarding the resignation, Article 1.477 CC expressly foresees the possibility that the renunciation of sanitation by eviction has a double intensity, al indicar que "When the buyer has waived the right to sanitation in the event of eviction, come let this be, the seller must deliver only the price of the thing sold at the time of eviction, unless the buyer had made the resignation with knowledge of the risks of the eviction and submitting to its consequences. ” Pursuant to this article, ordinary or simple waiver causes the buyer's right to be compensated after the loss of the thing sold is limited to the price of the thing at the time of purchase -which does not have to coincide with the price you paid for it-, while the qualified resignation determines the loss by the buyer to all compensation.

Last, based on the same article 1.475 CC, it is perfectly possible to increase the guarantee for eviction, although it is necessary that the contractual clause that includes it is drafted clearly and precisely.

Effects

The actual effects of the liability for disposal by eviction are provided for in the article 1.478, cuando indica que "When sanitation has been stipulated or when nothing has been agreed on this point, if the eviction has been made, shall the buyer have the right to demand from the seller: 1.º The refund of the price of the thing sold at the time of eviction, either greater or less than that of the sale. 2.º The fruits or yields, if he had been sentenced to hand them over to the one who had defeated him in court. 3.º The costs of the lawsuit that caused the eviction and, if, those of the followed with the seller for the sanitation. 4.º The costs of the contract, if the buyer had paid. 5.º The damages and interests and the voluntary expenses or of pure recreation or decoration, if it was sold in bad faith ”.

These effects must be complemented with the provisions for cases of partial eviction and eviction due to the existence of charges. For the first, Article 1.479 CC anticipates that "If the buyer loses, by effect of eviction, a part of the thing sold of such importance in relation to the whole that without said part I would not have bought it, may demand the termination of the contract; but with the obligation to return the thing without more burdens than what it had when acquiring it. The same will be observed when two or more things are sold together for a lump sum., or particular for each of them, if it were clearly stated that the buyer would not have bought one without the other. ” For the second, Article 1.483 states "If the property sold was taxed, not to mention the writing, with some apparent burden or easement, such that it should be presumed that the buyer would not have acquired it if he had known it, may request the termination of the contract, unless you prefer the corresponding compensation. For a year, to count from the granting of the deed, the buyer may exercise the rescission action or request compensation. After the year, You can only claim compensation within an equal period, to be counted from the day the cargo or easement has been discovered. ”

Duration of liability for eviction

Regarding the duration of the liability for eviction, the Civil Code regime does not establish any specific term, reason why it will be necessary to be to the established thing in the article 1.964 CC for personal actions that do not have a special deadline.

Accordingly, liability will prescribe five years from when compliance with the obligation could be demanded. It must be remembered that, in accordance with DT 5 of the Law 42/2015, the action for liability for eviction that was born before the 7 October 2015 expires next 7 October 2020, in accordance with the provisions of the article 1.939 Civil Code.

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