On April 21st, the National Consumer Service (“SERNAC”, for its initials in Spanish) issued an interpretation of Law No. 19.496 regarding consumer rights in promise of sale agreements entered into with real estate companies.
One of the questions the ruling seeks to address is the value and scope of pre- and post-contractual communications made by the real estate company concerning the estimated delivery dates of the respective apartments, even if such communications are not included in the actual promise of sale agreement signed by the parties.
Regarding to pre-contractual communications, the ruling states: “the objective conditions of the agreements between the parties, such as a delivery deadline, must be considered part of the binding contractual content, even if not formally stipulated in the promise contract, in accordance with the principle of advertising integration.”
This is relevant considering that the advertising of a real estate project significantly influences the formation of consumer consent, that is, the consumer’s decision-making process.
Therefore, according to SERNAC, if a real estate company states a specific and defined delivery date in its advertising, it must comply with that date, and failure to do so constitutes a breach of contract.
Similarly, for communications made after the signing of the promise to purchase agreement, SERNAC determined that the real estate company must also comply with them, as the obligations to fulfill the agreed terms and conditions come into effect, pursuant to Article 12 of Law No. 19,496. Therefore, if the real estate company committed to certain terms (whether through emails, instant messaging such as WhatsApp, or others), it is still bound by them.
In this regard, SERNAC stated that the commitments made by real estate companies must be regarded as real and serious, and that “if value is not given to these commitments, and formal communications made by the supplier to the consumer are allowed to lack legal effect, it would constitute an abuse of the supplier’s informational advantage, which would be contrary to Article 2 ter of the Consumer Protection Law (LPDC), which enshrines the pro-consumer principle, as well as to the duty of professionalism established in Article 23 of the same law.”
Finally, if the delivery deadline set by the real estate company is not deemed valid, and the suspensive condition of obtaining the final building reception certificate from the Municipal Works Directorate (“DOM”, for its initials in Spanish) prevails, SERNAC raises the question of whether the consumer has the right to request reimbursement of payments and compensation for damages. The answer depends on the circumstances: if the delay is due to the real estate company’s negligent and attributable conduct, the consumer may enforce the guarantee policy included in the promise contract and seek compensation for damages under Article 3(d) of Law No. 19.496, which requires the provider to fully repair the damage (actual damage, loss of profit, loss of opportunity, and moral damage). On the other hand, if the delay is solely due to the actions of a third party (in this case, the DOM) and the real estate company has not committed to a specific delivery date, SERNAC states that “no breach of the promise contract can be attributed to the real estate company. This is because the provider has fulfilled all enforceable obligations to obtain approval, which constitutes an inherent risk of the business that the consumer has agreed to assume.”
The ruling came into effect upon its publication on SERNAC’s website on April 29th.