ABUSIVE CLAUSES IN REAL ESTATE SALES
Buying a home is probably the most important investment that we will make as consumers throughout our lives, so it is essential to have the best information and advice that allows us to know our rights and avoid abuse by the seller or any other intervening agent.
Before signing any contract, the seller should provide us in a clear and transparent way with all the conditions of the sale and if we agree, we will proceed to sign the corresponding sales document.
For the general conditions to be valid, they must be signed by the consumer, who will be informed about them without the possibility of referring to other documents not delivered, and their stipulations must be written with transparency, clarity, specificity and simplicity. The clauses that the consumer could not have known before the signature, the illegible, the ambiguous, the dark and the incomprehensible, are null and void and will not be part of the contract. The doubts in their interpretation will be resolved in favor of the consumer.
Clauses that are contrary to good faith and the fair balance between the rights and obligations of the professional or businessman and the consumer are null and void due to abuse. In any case, the following are void due to abuse, among others:
The clauses that exonerate the responsibility for defects in construction or limit the responsibility of the seller-developer and other agents of the building.
Those that commit the buyer firmly and not the developer.
Those that do not accurately set the delivery date of the home.
Those that allow the retention of paid amounts, in the event of the buyer’s resignation from the contract or its execution, without establishing an equivalent amount for the reverse case.
Disproportionate penalty or compensation clauses for breach of the buyer.
Those that empower the developer for unilateral termination, without correlative right of the buyer, or withholding of quantities without provision made.
The inalienable adherence to clauses that the buyer has not been able, in time, to know its real significance.
The unilateral alteration by the professional of the terms of the contract, the provision of the service or the delivery of the good.
The unilateral increase in the price or its establishment at the time of delivery of the good or provision of the service.
The exclusive reservation to consider fulfilled the contract or its interpretation.
Those that exempt the professional from the responsibility of their agents or make it subject to special conditions.
Those that require consumer compliance, without the correlative of the professional.
Any assignment of the contract, with less consumer guarantees, without the consent of the consumer.
Suppress or hinder the exercise of legal actions or remedies, subject to arbitration not legally regulated.
Those that establish any reversal of the burden of proof: that the consumer must prove compliance or non-compliance with the agreement.
Those that limit the consumer’s right to choose the intervening notary.