Termination of the contract of sale of real estate for the omission of planning information.
In the public deed of sale of a land, the seller must state the urban situation, the legal duties and the obligations to be fulfilled. If these conditions are not met, the acquirer may terminate the contract and demand the appropriate compensation.
Local Planning situation
The planning situation should be stated when the plot:
a. can not be destined for private use or to be built;
b. Have buildings that do not comply with Urban Planning;
c. the land is intended for the construction of housing subject to public protection.
The liability of the seller for hidden encumbrances of the sold property is subject to the concurrence of the following requirements:
a. That the land is burdened with a levy or encumbrance not apparent, unknown by the buyer at the moment of buying the property. It must be a real right limiting the enjoyment or disposition of the owner, or a charge that generally imposes the obligation to satisfy a benefit.
b. That the liens or encumbrances are not mentioned in the deed.
c. That the levy is of such importance that it is presumed that, had it been known in time, the buyer would not have acquired the property.
The buyer can choose between the rescission action or compensation:
a. The rescission action can be exercised within a period of one year from the granting of the deed.
b. The compensation action, or claim for damages, may be used within one year from the granting of the deed or, later, within the year following the discovery of the charge or encumbrance. The amount of the indemnity must be equivalent to the decrease of the value of the property as a result of the load or tax.
The legal limitations of the domain and those derived from the urban land regime, are not included in the category of charges or encumbrances not apparent.
The urban characteristics are part of the ordinary regime of property, do not constitute burden and encumbrance, but characteristics of the property sold. If they do not limit the use of the house indefinitely and could be easily known by the buyer, it is not considered that there is a breach of contract.
In the purchase of a plot to be built later, when in fact, the local planning prevents it, is sometimes considered the existence of invalidating error, or the existence of fraud, when the law does not comply (unless the purchaser has known or could easily know the urban situation before completing the purchase).
The termination or indemnification is subordinated to the knowledge of the urban situation; However, this can not obviate the obligation of the seller to inform in the public deed of sale about the limitations of the property.
Urban planning information is available to any interested party; Is public, and good faith, which is enforceable in contracts, does not impose a special duty of information on the seller, especially in such matters as may be easily known by the buyer with a minimum of diligence, unless it is a circumstance or condition Supposes an alteration of the contents of the Property Register, for example, that the City Council is processing an alteration of the planning known by the seller, and difficult to find out by the buyer.
Article 1483 Spanish Civil Code
If a property sold were to be encumbered with any lien or non-apparent easement, of such a nature that it can be presumed that the purchaser would not have acquired it if he had known it, and the public deed failed to mention it, the purchaser may request rescission of the contract, unless he prefers the corresponding compensation.
For one year counting from the execution of the public deed, the purchaser may exercise the action for rescission, or request compensation.
After the lapse of one year, he may only claim for damages within a similar period, counting from the day on which he discovered the lien or easement.
Royal Legislative Decree 7/2015, of October 30, approving the consolidated text of the Law on Soil and Urban Rehabilitation.
Article 7. Actions of urban transformation and building actions.
1. For the purposes of this law, it is understood by actions of urban transformation:
A) Urbanisation interventions, which include:
1) The actions of new urbanization, that modify a determined area of land, changing the situation of «rural soil» to the situation of «urbanized land»; To create, along with the corresponding public infrastructure and facilities, one or more parcels suitable for building or independent use and functionally connected to the network of services required by land use and urban planning.
2) Actions aimed at reforming or renovating the urbanisation of an area of urbanised land, in the same terms.
B) The actions for public facilities, whose purpose is to increase the public facilities of an area of urbanised land, to readjust its proportion with the greater buildability, or greater density, or with the new uses assigned in the urban planning to one or more plots, And do not require the renovation of the urbanisation.
Article 27. Transmission of urban properties and duties.
1. The transfer of farms does not change the situation of the new owner regarding the duties of the owner following this law and those established by the legislation of the territorial and urban planning applicable or required by the acts of execution of the same. The new owner is subrogated to the rights and duties of the previous owner, as well as in the obligations assumed by the latter before the competent Administration and which have been subject to registration, provided that such obligations refer to a possible Legal mutation with effects in the real right.
2. In the sales of land, it must be stated in the corresponding title:
A) The urban situation of the land, when it is not susceptible of private use or construction, has buildings outside of management or are destined to the construction of houses subject to a public protection regime that allows assessing its maximum sale price, rent or Other forms of access to housing.
B) Legal duties and obligations to be fulfilled, when the land is subject to one of the actions referred to in Article 7 (1).
3. Infringement of any of the provisions of the preceding paragraph empowers the acquirer to terminate the contract within a period of four years and demand compensation according to the civil legislation.
4. On the occasion of the authorization of public deeds affecting land ownership, notaries may request from the competent Public Administration telematic information or, failing that, a written report expressing their urban situation and the duties and obligations to Whose compliance is subject. Notaries will send to the competent Administration, for their knowledge, a simple copy in paper or digital format of the deeds for which they have requested and obtained urban planning information, within ten days of their granting. This copy will not charge a fee.