The action of contractual nullity due to error of consent derived from the urban development status

There are many procedures that are filed annually before the Spanish Courts in order to declare null and void private contracts or deeds of sale of urban or rustic properties on the grounds that they were made under error of consent.

It is essential to attend to a series of questions when answering a request of this nature. Some of them are listed below:

1.First of all, it is necessary to refer to the existence of the contract itself (whatever its form) as well as its terms. According to Art. 1254 of the Civil Code (hereinafter “CC”), “A contract exists as soon as one or more persons agree to bind themselves, with respect to another or others, to give some thing or provide some service”. Likewise, according to art. 1281.1 CC “If the terms of a contract are clear and leave no doubt as to the intention of the contracting parties, the literal meaning of its clauses shall be considered”, and, in this sense, Art. 1282 CC: “In order to judge the intention of the contracting parties, the acts of the latter, contemporary and subsequent to the contract, shall be taken into account“.

2.On the other hand, it would be necessary to attend to the moment in which the sale was consummated. According to art. 1445 of the CC, the sale is consummated when the seller delivers the thing and the buyer the price. The consequences of not complying with the performance (delivery of thing or price) in the sale and purchase are the following:

a) If this happens at the time of the perfection of the contract (moment of formation of the contract), the legal effect that it could entail is that of nullity (art. 1.272 CC, in relation to art. 1261.2 CC).

b) If it occurs after perfection and before the debtor is in default (art. 1.184 CC) we could be faced with a possible contractual termination.

3. It is also important to take into account whether we could be facing a lapse of the action. According to consolidated case law, the defect of consent derived from the error does not imply the absence of the requirements established in art. 1261 CC for the existence of the contract and, therefore, in the event of such defect, we will be dealing with a case of annulment or relative nullity, and the four-year period established in art. 1301 CC for the exercise of the action, counting from the consummation of the contract, will be applicable.

In short, the relative nullity or invalidity occurs when the contract, while containing its essential elements, suffers from defects in the formation of any of them. This nullity is referred to in art. 1300 of the CC which, accepting the concurrence in the contract of consent, object and cause, contemplates the case that it suffers from any of the vices that invalidate them (error, fraud, violence or intimidation- art. 1265 and following of the CC- and falsity of the cause- art. 1276 and 1.301-2 of the CC-).

4.As for the evidentiary burden, in this case, in accordance with art. 217 of the Civil Procedure Act, it corresponds to the plaintiff. Thus, the judgment of the Provincial Court of Coruña, 150/2018 of May 18 indicates: “Therefore, the doctrine and jurisprudence have long reiterated the presumption of mental capacity and capacity to act of any person of legal age not judicially incapacitated, unless conclusive evidence to the contrary. The burden of proof then corresponds to whoever alleges the invalidity of the contractual or business consent given by the person, such as fraud or deceit“.

5.On the other hand, in relation to the error, it should be emphasized that special care must be taken by the buyer, since a large majority of courts and tribunals have been warning for years that the files and the urban planning status by which a property may be affected are not of the same nature as, for example, hidden defects, since they are of a public nature and freely accessible, and that the new purchaser is obliged to have a minimum duty of diligence. That is to say, in the event of any type of legal-urban “circumstance” that could be detrimental to the new purchaser, a minimum of diligence is also required of the new purchaser, translated into assuming that he must be informed about the physical, legal and urbanistic state of the new property that he is acquiring.

Thus, we continue to find courts that, when there have been no express clauses included in the contract and these “circumstances” have occurred, have not appreciated any type of breach of contract, nor the possibility of resorting to nullity due to error or vice in the consent. Thus, for example, the urban qualification of the real estate and its possible alterations are not understood as unforeseeable circumstances that could give rise to a nullity or voidability on these grounds.

By way of example, we cite the Judgment 1st Chamber, 8.11.2007: “In short, Article 62 of Royal Decree-Law 1346/1976 is inapplicable in a case in which good faith behavior, insofar as it implies diligent action, would have made it possible to easily obtain information on the urban development status of the properties that the buyer claimed to be unaware of when, in addition, they were sold as rustic and at rustic prices, without there being special circumstances that would alter the situation and were known to the buyers“.

Also the Judgment 1st Chamber, 24.01.2003: “For the error to invalidate the consent, it must be an excusable error, that is to say, one that cannot be attributed to negligence on the part of the party alleging it, since the inexcusable error is not susceptible to give rise to the nullity requested as it does not affect the consent, the doctrine and case law having pronounced its non-admissibility if it falls on the legal conditions of the thing and a lawyer intervened in the contract, or if it could have been avoided with normal diligence (Supreme Court 1st Judgment of 14 and 18 February 1994, 6 November 1996 and 30 September 1999)“.

Or the Judgment 1st Chamber, 29.07.1999: “The appellant alleges the existence of an error that vitiates the consent because when he bought the property he was unaware of the urban classification of the property as land not for development, and that if he had known this classification he would not have acquired it. The property transferred is located in an area classified as undeveloped land for special protection in the General Urban Development Plan of the City Council of Oviedo; by virtue of this classification, any type of building permit is suspended for 2 years, and as the buyer intended to carry out some reforms when acquiring the property, if she had known this circumstance she would not have made the purchase. The reason is inconsistent. The suspension of the licenses was agreed on 11 January 1994, and the private purchase and sale was granted on 5 November 1992; moreover, the simple mistake about the reasons does not produce any invalidating effect, since, moreover, nothing was stated in the contract about the intentions of the buyer (Supreme Court Judgment 30 September 1993)“

6.It would also be essential to analyze whether or not the property that is the object of the sale is unfit for its natural use and destination, and whether or not the plaintiff would not have purchased the plot if she/he had not incurred in the error that she/he alleges. For this purpose, it is important to examine the characteristics of the property sold to know if they really prevent the use and destination. It should be remembered that partial impossibility does not automatically imply the nullity of the contract, and that the burden of proof of these aspects also falls on the plaintiff.

That is why, for the analysis of the technical issues of these aspects, it is always advisable to have an expert report to that effect.

In any case, it cannot be ignored that, if this were the situation that has occurred (that, although the seller may be unaware of it, the object of the contract is absolutely unfit for the objective purpose pursued with its acquisition), the claim for compensation for hidden defects could have been filed against the seller within the six-month period provided for in art. 1490 CC.

7.Another question to take into account is whether the sale was made at a fixed price or as a certain body, given that, in these cases, the size and/or description of the boundaries of the property are not relevant per se to provide the contractual intent, whether or not they are mentioned in the contract.

When the boundaries and the size of the property are expressed and identified in the contract and the actual surface area is less than that agreed, the buyer could have chosen between a proportional reduction of the price or the cancellation of the contract because of disagreement with the loss of size. With regard to the latter, it should be noted that the buyers have the corresponding legal actions that could be exercised within six months from the delivery of the property, which is considered the statute of limitations period.

“Therefore, in the case of sale of certain bodies, the doctrine has said of this modality – Judgment of May 29, 2000, and those cited therein that the sale of certain bodies presents certain aspects of randomness (judgments of the Supreme Court of June 19, 1984 and May 18, 1982) in that the price is determined on the basis of a percentage per unit of measurement or number, This circumstance leads to the inescapable conclusion that the possible differences of meters in the measurements do not affect the completeness of the contract, nor modify the conditions of acquisition in the price, which has the character of a fixed price…. “.

Before formalizing any type of sale or purchase or making any claim about it, it is best to go to a professional beforehand so that he/she can advise you on your specific case and not suffer any inconvenience. If you have any doubts or queries in this regard, from VENTURA GARCÉS we are at your disposal to help you in everything you need.