General terms
Purchase and rental contracts may include a number of clauses which you should be aware of before signing.
Signing for a house –regardless of whether you wish to buy or rent –carries with it more general terms than defined in each of the parties obligations.
Such general terms are no more than just a few liability clauses added to the contract at the request of one of the parties. Contrary to how this may seem, however, these clauses affect neither buyer nor seller (provided they do not constitute unfair contract terms); on the contrary: they provide legal security to both.
Validity of content…
For these clauses to be valid, their content must satisfy certain legal requirements, and in particular must not constitute unfair terms of contract. To guarantee this legally, two methods of analysis are used:
- The content of such clauses is obligated to respect the rights and obligations of the two parties.
- It may also be subjected to a non-exhaustive list of conditions which may be classed as unfair. More specifically the law cites 29 such unfair conditions, though this also applies to any other which may affect either the buyer or seller.
... Form
Not only must the content of said conditions be analysed, but they must also conform to a specific form:
- They must be accepted and signed by both parties. Both parties must also be aware that the contract may not be drawn up in writing, which would hinder the inclusion and validity of the added general terms. In this case, such conditions would have to be indicated separately, with the parties made aware both of their existence and of their content at the moment of signing the contract.
- The parties must submit a receipt, copy or certifying document of the operation.
- The drafting of general clauses should meet criteria of transparency, clarity and simplicity, making them fully legible and comprehensible to the interested parties. Furthermore, they will all be cited in the contract. That said, any doubts in their interpretation will be resolved in favour of the consumer.
- Any conditions unknown to any of the parties at the moment of signing the contract will be excluded, as well as any that are illegible, ambiguous or incomprehensible –in the event of the latter, such condition will stand if accepted by the intended party in writing.
Minimum inclusions
There are many tricks which threaten the integrity of property trading contracts, so it is essential to be fully up to date with their content. At minimum, the contract must contain:
- A detailed description of the property.
- Conditions of purchase, such as the price or form of payment.
- Date of handover of the keys. In this case, it is advisable to agree on a penalty clause in case of delay.
- Deed registration date.
- Details of easements and encumbrances, if necessary.
- Participation in shared areas of the building wherever the property may be located.
- Guarantees issued.