CONSTRUCTION AND PROMOTION
Delay in the delivery of housing under construction
In new construction buildings, it is common to sign a deposit before the construction is finished, make deliveries on account of the final price and agree on a delivery period. But... what happens if the promoter is late?
Delay. In off-plan housing sales, the law protects the home buyer. Thus, in case of delay in delivery, the latter may terminate the contract with a refund of the amounts delivered on account –taxes included– plus legal interest, or grant an extension to the promoter. Note. In such a case, said extension will be recorded in an additional clause to the contract, indicating the new date of completion of the construction and delivery of the home.
Interpretation of the standard
What do the judges say? Based on the foregoing, the courts interpret that the mere delay (no matter how slight) in the delivery of the home with respect to what was agreed constitutes a breach by the seller that empowers the buyer to terminate the contract. Attention! See some arguments on which they have been based to justify it:
Minimum term . It would be unfair to stipulate a specific period of time to determine if the seller's breach is serious enough to justify the termination of the contract, since this would imply giving him extra time to fulfill his obligations and, therefore, would break the balance of the contract.
Urban impediments . Likewise, even if the delay is due to bureaucratic procedures and is caused by a third party other than the promoter (such as the granting of a license, for example), it is also considered a fundamental breach and allows the termination of the contract. Note. And this is because the developer himself is the one who sets the delivery deadline, who must be aware of the difficulties inherent in this activity and, therefore, must anticipate the circumstances and ensure that he can fulfill his commitments.
Denied. However, in order to claim the termination of the contract and the return of amounts, the buyer must also act in good faith. See some situations in which you have not been given the reason.
Bad faith and abuse of rights
Case 1. The buyer takes advantage of a slight delay to request the resolution. After examining the contract, the court determined that there is no room for the resolution of the sale of a home due to the mere fact of delay in delivery when it is proven that the parties did not want to give the delivery period an essential character. Note. In this case, the merely opportunistic attitude and contrary to the good faith of the buyer was taken into account, since he wanted to pass off a small delay as non-compliance when in fact he was the one who changed his mind.
Case 2. A penalty clause was agreed in case of delay. When analyzing the contract, the judge found that it expressly provided for the possibility of delaying delivery with specific requirements and agreeing on the consequences that this would have. Note. Thus, in application of the contract and given all the requirements, it was estimated that the resolution was not possible (the promoter complied with the stipulations of the penalty clause).
Case 3. The right to resolve is exercised late. The buyer exercised his right after being informed that the home was finished and ready to be delivered, even after the date stipulated for it. Note. The court considered that the essence of the contract was the delivery of the property and that, although late, the builder was in a position to comply when the buyer requested the resolution. Therefore, it considered that said resolution did not fit. At most, in a case like this, compensation could be requested for the damages caused by the delay, if they were proven.
The mere delay in the delivery of a home under construction gives rise to the possibility of terminating the contract with a refund of the amounts delivered plus expenses and interest, unless bad faith on the part of the buyer can be proven.
