Buying a house may seem like a safe step, and this story shows how the habitability and legality of the property can hide pitfalls that only appear after the deed, when there are already keys in hand and the “deal done” begins to reveal problems that are difficult and expensive to resolve. In Madrid, the Audiencia Provincial decided that an owner must return 180,000 euros to the buyer of an apartment sold as suitable for housing, despite not complying with legal requirements and presenting serious flaws, especially in sanitation.
The purchase and sale was formalized in March 2018, but the apartment resulted from the division of a larger house into two properties. According to the decision, this segregation was carried out without an urban planning license and without a first occupation license, yet the property was transacted as if it were ready to live in, without any effective warning about its situation, according to the Spanish digital newspaper Noticias Trabajo.
Real price and the difference between paper and reality
The court found that the amount actually paid was 180 thousand euros, although the public deed stated a lower value. The issue of price was central when deciding the refund, since, when the contract was terminated, the buyer asked for the money back based on what she actually delivered.
First signs only appeared after delivery
After receiving the property, the buyer began to detect problems and requested technical expertise, which would end up supporting the action in court. The discussion stopped being about small day-to-day defects and started to focus on the apartment’s ability to serve as a home, technically and legally.
Fewer meters and access that raised serious doubts
The reports cited in the process indicated that the actual usable area was 22.64 m², a value well below what is usually required for a unit with several rooms.
Furthermore, it was pointed out that the property did not have a direct exit to a common element of the building, since, to reach the staircase, it would be necessary to cross a space associated with the other fraction resulting from the segregation, according to the previously cited source.
The turnaround: from the first instance to the high court
In the first instance, the Juzgado de 1ª Instance nº 98 of Madrid rejected the action, understanding that the defects highlighted did not justify the termination of the contract. The buyer appealed and it was this appeal that changed the course of the case, with the Provincial Audiencia revoking the previous decision.
The high court understood that these were not “wear and tear” or minor problems, but rather a substantial unsuitability of the property for the purpose of the contract, applying simple logic: if it was sold as a habitable house, it must be so.
Habitability rules and licenses that never existed
The ruling states that Madrid’s urban planning indicates a usable area exceeding 38 m² when there are rooms such as living room, kitchen, bedroom and bathroom, allowing for a reduction of up to 25 m² only in single multifunctional space solutions.
In this case, there was an independent room and the area was below the exceptional minimum, which weighed on the habitability assessment. Another point highlighted was the lack of a first occupation license, associated with the verification of technical and hygienic-sanitary conditions, something that the court did not treat as a mere formality, according to the same source.
Sanitation was “Achilles’ heel”
One of the reports described insufficiently sloped plumbing, recurring blockages, backflows into the bathtub, and persistent bad smells. A poorly installed evacuation system and a grinder in the toilet were also highlighted as worsening the problem, with a drain cleaner admitting that she was unable to guarantee a permanent solution.
Given the set of failures, the Hearing applied the doctrine of “aliud pro alio”, allowing the contract to be terminated when the good delivered is, in practice, something different from that promised because it does not fulfill the essential purpose of the transaction.
How much will the seller have to return and what could still happen
In addition to returning the R$180,000, the decision includes legal interest since 2018 and also R$10,082.27 for proven expenses, including notary’s office, tax, registration, IBI and interventions related to the sanitation network. According to , the sentence was not presented as final and, although it did not admit ordinary appeals, it was mentioned that there could be the possibility of an extraordinary cassation appeal.
Interesting in this case for those who buy a house in Portugal
The key idea is that urban irregularities, substandard areas or essential infrastructure in poor condition can jeopardize the very purpose of the contract, and not just generate works and inconvenience.
In Portugal, the use license serves to verify the compliance of use with applicable standards and the suitability of the building or fraction for this purpose, within the framework of the RJUE, being a critical element in prior verification. The context changed with the Simplex Urbanístico: since 2024, it is no longer mandatory to present certain documents at the time of the deed, such as the use license and the technical file, which reinforces the need to confirm everything before signing.
As for the Housing Technical Data Sheet, IMPIC explains that it is required for buildings built or undergoing works after the entry into force of Decree-Law no. 68/2004, with specific exclusions, functioning as another way of confirming whether the property corresponds to what is being sold.
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