No Sea View = Cancellation of Purchase Contract

A couple had purchase monies of more than €200,000 plus interest returned due to the apartment they purchased in Malaga not having the sea and mountain views the brochure had promised.

In a decision that may have important implications for those who have been buying property in Spain, a contract for the purchase of an apartment in Malaga has been declared void by the Supreme Court as a result of the property in question not conforming to it’s description in a sales brochure as having ‘sea, mountain and golf course’ views. In so declaring, the Supreme Court upheld the decision of the Appeal Court in Malaga that the contract was void and that the monies paid by the purchasers – a total of more than €205,000 must be returned by the developer, together with interest.

The result was a long sought after victory for the couple who had bought the apartment in Estepona in 2003 ‘off-plan’ i.e. before the property had been built. After losing the initial court case in Estepona in 2006, the Appeal Court in Malaga agreed with the legal argument put forward on behalf of the couple in 2007 while the Supreme Court also considered the contract for purchase to have been nullified.

The property promoter had maintained throughout the original case and the appeals that there was no contradiction given that there were sea and mountain views from the complex in general, though not necessarily from each apartment in particular.

From a purely legal standpoint the case is important in that it ruled that the sales brochure did not carry-out the function merely of marketing promotion but ‘constituted a genuine offer via advertising’ inasmuch as it contained information that contained objective facts relating to relevant characteristics’. The court considered that while possible to view the brochure as not being an offer in the strict sense, ‘it’s importance in the formation of the contract was unquestionable’ given the impact that it would have on forming the intent to contract on the part of the purchaser.

It was important in the view of the court that the purchase took place ‘off-plan’ such that it was not possible to verify that the brochure had not been accurate and that the specific characteristics valued by the purchasers – views of the mountains and the sea – were decisive in convincing the couple to go ahead with the purchase.

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