CAN A REAL ESTATE COMPANY BE RESPONSIBLE FOR THE PAYMENT OF A MORTGAGE ABOUT WHICH IT DID NOT INFORM A BUYER?

11 Nov CAN A REAL ESTATE COMPANY BE RESPONSIBLE FOR THE PAYMENT OF A MORTGAGE ABOUT WHICH IT DID NOT INFORM A BUYER?

In certain cases the answer is YES, the Real Estate Agency may end up responding and having to pay the installments or the principal of the Mortgage or the damages in case of foreclosure of the mortgage for that omission of information.

This, has been stated by the Supreme Court in a recent judgment in a case in which the buyers signed the purchase of a house at that time free of charges and in which later when it was deeded there was a mortgage and this even though the buyers were initially informed that such a possibility existed.

The Judgment declares demonstrated that the Real Estate assumed in front of the non-resident buyers an obligation of advice and guidance in the purchase of their homes in Spain, offering legal advice “complete with qualified lawyers” as well as any other service or mediation related to their stay in Spain, from the purchase of furniture to the opening of a current account or the contracting of basic services, providing for this purpose, as read on its advertising brochure, “a complete package of legal guarantees with qualified lawyers”; in particular, it is read in this document that “a fundamental part of the purchase process is to represent you during the process of granting the public deed, at which time you will have to go to the notary.

Some clients choose to grant a power of attorney and thus allow their lawyer to carry out the procedures and legalities without their presence.” Likewise, the stay in Spain was offered and all the necessary attentions to guarantee the good end of the sale, for which they would receive a commission.

The Supreme Court considers that the intervening real estate mediator incurred inexcusable negligence in the fulfillment of its obligations of advice and observance of the legal provisions on consumption, by not verifying the existing burdens on the homes it offered for sale to third parties, despite the fact that it acted as an agent of Real Estate Property whose professional status (regulated by RD 1294/2007, of 28 September) (EDL 2007/143827) obliges in its article 9 to act with due diligence in its advisory work, in such a way that, as the SAP of Barcelona, section 1, of 18 January 2006 said, “the agent is obliged to know for himself the state of the property, as well as its charges and to inform the contracting parties of all this …””.

“Consequently, articles 1.101 and 1.104 CC are fully applicable in order to determine the contractual liability of the real estate and the consequent compensation for damages once the negligence of the real estate agency in not fulfilling its obligations in the proper way has been proven,”

Faced with the allegation of the Real Estate that its only contractual relationship was with the seller, with whom it formalized the mediation contract, the tribunal declared that as was proven, the Real Estate belongs to a business complex in such a way that they provide a comprehensive accompaniment of the buyers to whom they capture in their country of origin, stating in the advertising information that “the real estate X is your partner in Spain”, “complete package of legal guarantees”, accommodation in the X hotels during the purchase process, the only way to buy was during the subsidized inspection trips of the real estate, adds the brochure that when the house is ready for delivery will contact you to organize your trip to Spain and thus make the last payment and take possession of the dwelling. It specifies that it also acts in Spain through sub-agents.

From the foregoing it follows that between buyers and the Real Estate concurs a contractual relationship aimed at comprehensive advice on the purchase of housing in Spain generating rights and obligations; contract that is different from the mediation contract between the seller and the Real Estate, so that art. 1257 of the Civil Code (EDL 1889/1) is not infringed, when one of the divisions of the Real Estate is sued.