Spanish lawyer for unfair contract terms in new build property

Non-exhaustive catalogue of typical unfair clauses

• Disproportionate penalties against the consumer (RDLeg 1/2007 art. 85).
• Clauses that exclude the developer's liability for breach.
• Clauses allowing the developer to unilaterally amend specs, surface or deadlines.
• Imposing on the buyer the payment of taxes or costs legally borne by the developer (municipal capital gains tax, developer mortgage cancellation costs).
• Clauses forcing arbitration outside the consumer arbitration system.
• Choice of forum other than the consumer's domicile.
• Clauses waiving consumer rights.

Effects of an unfairness declaration

The void clause is treated as not written. The contract remains valid for the rest (RDLeg 1/2007 art. 83), unless without it the contract cannot subsist.

The buyer can claim a refund of amounts paid under the void clause, with interest from payment.

Procedure

1. Review the contract (reservation, private sale, deed) to identify potentially unfair clauses.
2. Out-of-court demand to the developer to recognise voidness and refund.
3. Court action for nullity if no agreement. The action is imprescriptible (RDLeg 1/2007 art. 83 after CJEU C-698/18 and consolidated Supreme Court case law).

Common new-build clauses

• "30% penalty if buyer withdraws after reservation" → unfair if disproportionate.
• "The developer may change materials or finishings without prior notice with equivalents" → typically unfair (unilateral change).
• "Municipal capital gains tax to be borne by the buyer" → unfair (legally on the seller).
• "The buyer accepts any project amendments approved by the council" → unfair if not specified.
• "The delivery date is estimated and non-essential" → typically unfair if used to dilute breach.

Frequently asked questions