Law 12/2023 on the Right to Housing, recently published in the BOE, regulates in Chapter I, the general regime of rights and basic information, the minimum information that must be provided. A requirement that will oblige sellers or landlords and state agentes to make an exhaustive analysis of the property before putting it on the market.
Such information must be provided even before any down payment is made, as even advertising must not contain “inaccurate or misleading information”.
Although any new regulation is always subject to interpretation, the coming months will see how the actors identified in Article 30.2 adapt to comply with it.
Some of the minimum information established in article 31 of the law is easy to obtain, such as the Certificate of Habitability, Energy Efficiency Certificate, measurements of the property, identification of the owner, or the price and conditions.
However, others, such as accessibility conditions, the classification of protected housing, degree of architectural protection and limitations for renovation or rehabilitation, may require further investigation.
On a third level are the requirements of article 31.1 letter g) which establishes the need to provide any information that may be relevant, including aspects of a territorial, urbanistic, physical, technical, heritage protection, or administrative nature related to it.
This paragraph of the new housing law can give rise to endless claims against landlords and intermediaries if the state of the property is not reported in detail. Especially if this paragraph is read in conjunction with the last paragraph of 31.3 “Incomplete, insufficient or deficient information is understood to mean information that omits essential data or contains it in terms capable of misleading the addressees or producing economic or legal repercussions that are not admissible, by disturbing the peaceful enjoyment of the property in the usual conditions of use”.
Any illegality, charge, encumbrance, administrative proceedings or debt, not reported even at the time of marketing the property, may well “produce economic or legal repercussions that are not admissible, for disturbing the peaceful enjoyment of the property” of article 30.3 of the law. It will therefore entitle the tenant-buyer to claim against the agents involved in the transaction.
Who are obliged? Art. 30.2
The housing law establishes that all agents operating in the building and renovation sector, developers, owners and other holders of rights in rem, real estate agents and property managers are obliged to provide information.
What is considered incomplete, insufficient or deficient information? Art. 30.3
According to Article 30.3, any information that may mislead the addressees, produce economic or legal repercussions, or disturb the peaceful use and enjoyment of the dwelling.
Articles of the Law on Housing analysed in this article
General regime of rights and basic information
Article 30. Basic principles of rights, powers and responsibilities.
- The rights of applicants, purchasers or lessees of dwellings, or in any other legal regime of tenancy and enjoyment, are as follows:
a) Those recognised in the rewritten text of the General Law for the Defence of Consumers and Users and other complementary laws, approved by Royal Legislative Decree 1/2007, of 16 November, and in the applicable autonomous legislation.
b) The right to receive information, including that provided by advertising media, in a format accessible to persons with disabilities or difficulties in understanding, which is complete, objective, truthful, clear, comprehensible and accessible, on the characteristics of the dwellings, their services and facilities and the legal and economic conditions of their acquisition, rental, assignment or use.
- All agents who, operating in the housing construction and renovation sector and the provision of real estate services, are authorised to transfer, lease and assign the dwellings in their own name or on behalf of others, such as developers, owners and other holders of rights in rem, real estate agents and property managers, must comply with the duty to provide complete, objective, truthful, clear, comprehensible and accessible information in their activity, objective, truthful, clear, comprehensible and accessible information in accordance with the provisions of this Act, as well as with consumer and user protection legislation in the case of relations between consumers or users and entrepreneurs, and the advertising they carry out shall be subject to the general legislation that regulates it, with the prohibition, in particular, of any advertising acts with insufficient, deficient or misleading information.
- For the purposes of the previous sections, information or advertising is understood to be any form of communication addressed to applicants for housing, users or the general public with the aim of directly or indirectly promoting the transfer, rental or any other form of transfer of housing. Incomplete, insufficient or deficient information is understood to be that which omits essential data or contains it in terms capable of misleading the addressees or producing economic or legal repercussions that are not admissible, because they disturb the peaceful enjoyment of the dwelling in the usual conditions of use.
Article 31. Minimum information in home purchase and rental transactions.
- Without prejudice to the principles and requirements contained in the applicable autonomous community regulations and as a minimum, the person interested in the purchase or rental of a dwelling that is on offer may require, prior to the formalisation of the operation and the delivery of any amount on account, the following information, in accessible format and on a durable medium, regarding the conditions of the operation and the characteristics of the dwelling in question and of the building in which it is located:
a) Identification of the seller or lessor and, where appropriate, of the natural or legal person who intervenes, within the framework of a professional or business activity, for the intermediation in the operation.
b) Economic conditions of the operation: total price and items included therein, as well as the financing or payment conditions which, where applicable, may be established.
c) Essential characteristics of the dwelling and the building, among them:
- Certificate or certificate of habitability.
- Accreditation of the useful and constructed surface area of the dwelling, differentiating, in the case of horizontal division, the private surface area from the common areas, and under no circumstances may the surface areas of the dwelling with a height lower than that required in the regulatory regulations be included for these purposes.
3.º Age of the building and, where applicable, the main alterations or work carried out on it.
- Services and facilities available in the dwelling, both individual and communal.
- Certificate of energy efficiency of the home.
6.º Accessibility conditions of the dwelling and the building. 7.o State of occupancy or availability of the dwelling.
d) Legal information on the property: the registry identification of the property, with a reference to the charges, encumbrances and encumbrances of any kind, and the share of participation established in the title deed.
e) In the case of subsidised housing, express indication of this circumstance and of the applicable legal protection regime.
f) In the case of buildings that officially enjoy architectural protection as part of a declared environment or because of their particular architectural or historical value, information shall be provided on the degree of protection and the conditions and limitations for reform or rehabilitation interventions.
g) Any other information that may be relevant for the person interested in purchasing or renting the dwelling, including aspects of a territorial, urban, physical-technical, heritage protection or administrative nature related to the same.
- Under the same terms as those established in the previous section, the person interested in the purchase or rental of a dwelling may request information on the detection of asbestos or other substances that are hazardous or harmful to health.
- When the dwelling to be rented as a habitual residence is located in a stressed residential market area, the owner and, where appropriate, the person who intervenes in the intermediation of the operation must indicate this circumstance and inform, prior to the formalisation of the rental, and in any case in the contract document, of the amount of the last rent of the habitual residence rental contract that has been in force in the last five years in the same dwelling, as well as the value that may correspond to it in accordance with the applicable reference index of rental prices for dwellings.