The sale of homes second-hand in Spain is a facet of the real estate market that has gained momentum in the last decade. Every month, according to the National Institute of Statistics, around 50,000 homes change hands and this type of business competes with the purchase of newly built houses. In recent weeks, the Supreme Court has ruled a sentence that opens the door for these second-hand owners to go directly to the developer if the house they have bought does not correspond to what they initially offered.
The residents of an urbanization who have won the case in the first room of the supreme court In March 2004, they signed the contracts to buy the off-plan houses. But years later, when they entered their new homes, they discovered that neither the doors of their houses nor the fronts of their cabinets had the quality that came in the specifications. "The doors did not correspond to the aforementioned qualities, and they were worse both aesthetically and due to durability, acoustic insulation and water resistance, as well as being cheaper".
Almost fifty owners resorted to a court in Las Palmas but only one part managed to get the sentence to recognize their right to have doors and cabinets in accordance with what they had agreed: those who had bought the flats directly from the promoters Acciona and Realia, constituted at that time as a Temporary Union of Companies. The rest of the people, who had bought their houses second-hand from other owners, were not so lucky because the Canarian courts understood that they were not entitled to file that claim with the promoters.
One of the owners of this urbanization in the Canary Islands is Diego Suárez, who, as he explained to elDiario.es, bought his house in 2014, seven years after construction, and ended up presenting a claim that the first owner had not presented. "I did not have a quality memory or anything to rely on. Later I found out that there were people who were suing, I asked the lawyer if I could and he said yes, even if it was a second transmission, and I signed up for this car demand," he explains.
The cabinets he found, he says, "were sad, really sad", although he thought that being a second-hand buyer he had no right to claim. "The house had been sold as having solid wood doors when it was a pure lie, they did not meet the requirements," he adds. The Supreme Court's ruling highlights insulation problems derived from the poor quality of the wood, but this neighbor notices the deception: "You feel like you've been scammed."
He adds that he no longer counted on being able to win the lawsuit in the Supreme Court. "In the first instance we lost, then also and when the appeal came I gave it up for lost, it has been a gift from heaven, I did not count on it, a real surprise", he says. He, like other neighbors, reformed the home on his own years ago.
Neither the court nor the Provincial Court of Las Palmas granted legitimacy to these owners to make a claim for their doors and cabinets, but the Supreme Court understood that they could go directly to the promoters after interpreting the Civil Code and its article 1257. "They are legitimated to claim in this procedure, in defense of their rights, derivedly acquired based on the sale of the previous owners, who never renounced their rights", explains the ruling.
Rajesh Chellaram is the lawyer who has won the lawsuit but he was also the first affected to bring the cases of these doors before Justice. He had bought directly from the promoters and got the Justice to agree with him. "The first case that I defend is mine, claims to the promoter of the defects that we found when entering," he explains to elDiario.es. First, when there were still homes to sell, they answered, but later, explains this lawyer, "the promoter stopped responding."
As it reveals, the poor quality of the doors was exposed when an operator accidentally opened a hole in one of them during a repair. An expert certified that they were doors "of very poor quality" in relation to the initial offer. "It is not a whim and it not only affects the resistance of the door, but also the acoustic insulation, the durability...", explains the lawyer. The owners, both first-hand and second-hand, were encouraged to go to court when Chellaram won her case in court and the developer did not take the lawsuit to the Supreme Court.
As the claims progressed, the promoters made it clear that they did not want to know anything about those who had bought from another owner, even if in practice they were the first to set foot in those houses. And both the court and the Provincial Court sided with the promoters, but now it has been the Supreme Court that has recognized this legitimacy to claim even if they are second-hand buyers. Not because of the purchase contract they signed, but because of the project's quality report.
"It is the one that is incorporated into the project and the one that is presented to the City Council to be able to build," explains the lawyer. The owners accumulated information over the years: from the dossiers that were delivered to those interested to the web page where they exhibited that quality report. The Supreme Court has just given them the reason: "What is recognized is that any buyer has the right to claim against the promoter whether he bought from him or not, because a breach of contract is a breach of contract," the lawyer settles .