The consequences of the construction of the building on the preliminary contract for the sale of a building


The consequences of the construction of the building on the preliminary contract for the sale of a building.

And at first glance it is clear what the consequences of reaching a "rough construction" stage or one of the subsequent phases of construction - the finding of the site's suitability or
its putting into operation. Linking the conclusion of the final contract with reaching one of the above stages would frustrate the possibility of the preliminary contract being concluded under the procedure of Art. 19, para. 3 of the Law on Obligations and Contracts (APA), as
contrary to imperative legal provisions. Notwithstanding the fact that the contract is preliminary, it should also comply with the general grounds of reality, including Art. 26, para. 1, proposal first CPA. The commitment that the builder undertakes to sell a right to build, bearing in mind the linking of the payment to the "rough construction" stage, is in fact not feasible, impossible to implement. No right to build can be transferred through a legal transaction once a building has already been built. Or at least the right to build can not be transferred on its own, without transferring ownership of it. On this side, like any negligible legal deal, as well
the preliminary contract will not give rise to legal consequences, such as the actions carried out in accordance with the contract (such as the payment of an initial installment, etc.) also appear to be vitiated and unjustified. In respect of negligible transactions, no penalty may be claimed and a time-limit for voluntary performance can not be imposed, nor can any claim be made for damages and compensation. Such a preliminary contract, the subject of which is impossible, can not be declared by the court as final in Art. 19, para. 3 of the CPA, as the court is obliged to ex officio
monitors the validity of legal transactions and, in the presence of certain defects, proclaims their nullity. The legal restrictions on disposal, and in particular the impossible subject, lead to the nullity of both the final and the preliminary contract.
 
 5. Problems in practice. Practice shows that in most cases the pre-contract is only a framework that governs the obligations of the parties, as the seller makes the most of the payment plan and the buyer guarantees the claim with the possibility to exercise his rights through the constitutive claim under art. . 19,
para. 3 of the LCP. It is widespread that the final contract has nothing to do with the preliminary agreement, as the parties agree that the object of the agreement will be the transfer of a constructed object and not the right to build as provided in the original contract. In this case, things are clear - the parties agree that the final contract finalizes the relationship between them. The Preliminary Contract is, anyway, void.
The problems arise from the not so good a relationship that can arise between the parties. Unfortunately, life hypotheses abound by examples where the buyer does not like the built object and seeks a way to spoil the deal. The conclusion of a preliminary contract for the sale of a right to build, with the obligation to conclude a final contract after the construction of the site, is a suitable option for all these requests to be realized. In accordance with the provision of Art. 34 of the CPA, each of the parties one
a negligible deal must return to the other side everything it has received - this is confirmed by both the theory16 and the practice.
It is true that Art. 63, para. 1 of the Ownership Act allows the owner to give another person the right to build a building on his land by becoming the owner of the building. This means that the superficer may own the property
building. In this case, however, it must be stipulated that the property is acquired after the building, so the right to build and the right of ownership should be clearly distinguished. The right to build exists for a certain period of time, it does not have a permanent character such as the right to property and should therefore be actively exercised, otherwise it will be lost. In textually speaking, the right to build is a "transitional right" whose main function is to develop dynamically to the extent that the building itself will emerge as the object of another property right - the right to property. With the construction of the rough construction, the owner of the right to build becomes the owner of the built. As is also accepted by the practice - "... with the contract has been transferred something that has long been accomplished. A constructed object of civilian turnover can not be subject to the establishment of the right to build. (...) Since in the present case the right to construct was made at the time of the conclusion of the contract, it could not have been transferred
 
of the right to build. "- Decision No. 854 of 02.10.2008 on the citizenship. No 2539/2007


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The consequences of the construction of the building on the preliminary contract for the sale of a building The consequences of the construction of the building on the preliminary contract for the sale of a building