A “cuerpo cierto” clause in the purchase deeds does not release sellers from their obligation to answer for construction defects.
It is a very common phrase in public deeds of sale where flats are sold in bulk by banks or by property companies linked to or close to them.
“ Cuerpo cierto ” (sale of the property as a whole, as it stands) is a common boilerplate formula, inserted automatically, which does not go into whether the buyers have been able to check properly the condition of the properties and communal areas being sold, or how far that knowledge extends.
For example, even if the buyers visited the property before signing the deeds, they could not have known that the lifts were not legally certified and were also outdated under current regulations, or that there was significant damp inside the wardrobes.
This generic expression is not magic, nor can it cover any conduct by the seller; the seller’s obligation is only fulfilled if the home is handed over in a condition fit for its purpose, so any defect or poor finish in the home that was not expressly provided for in the deeds or contract must be regarded as a breach of contract.
And a home, given the social purpose it serves and the reason it is bought (to serve as a dwelling, where the most basic and intimate aspects of human life together take place), must be handed over properly finished, without defects that could diminish its value, unless those defects were expressly provided for in the contract/deeds and the purchase price was set with them in mind.
The courts say that purchasers must receive a product as good as the money they hand over in return. Buyers are not obliged to accept defective goods, and just as they cannot perform their side of the bargain by handing over money that is defective, damaged or worth less than the euros set as the price, the seller must hand over the house free of defects.
- Even if the home was handed over finished, the seller must fulfil its obligation to do so properly, and defective delivery of the subject matter of the contract makes the seller liable for its breach.
- The buyer is not obliged to accept anything other than what was agreed, nor partial performance.
- The guarantees under the Spanish Building Act (Ley de Ordenación de la Edificación, LOE), if still within the time limits, remain fully effective, regardless of any statement that the property is sold “as a whole” (a cuerpo cierto). This is because the parties involved in the construction have a mandatory legal liability to answer, according to their role, time limits and types of damage, for failures to meet the minimum construction requirements laid down in the LOE.
- A home must serve as a dwelling, where the most basic and intimate aspects of human life together take place, and must be handed over properly finished, without defects that could diminish its value, unless those defects were expressly provided for in the contract/deeds and the purchase price was set with them in mind.
- Even if the public deed of sale states that the sale is made “as a whole” (a cuerpo cierto), and the property turns out to be defective without the defects that would justify the price having been specified in the deeds, the reference to “cuerpo cierto” in the deeds is a clause that is null and void as unfair, insofar as it could imply that the buyers waive their right to receive the property in full. The mere fact that the buyers briefly visited and inspected the property before buying it does not mean that they had full knowledge of the breach of contract or that they consented to a novation.
These clauses are as unfair or void as the equally famous mortgage “floor clauses” (cláusulas suelo).
If you have any questions, ask us, DPcon Reclamación daños constructivos.
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