Real Estate Purchase: Implications and Consequences of the 'Cuerpo Cierto' Modality

In this article, we will analyze the implications and consequences of acquiring a property through a "cuerpo cierto" sales contract. When a real estate purchase contract is entered into, the delivery of the property is one of the fundamental obligations of the seller. This delivery is the means by which the buyer acquires ownership or dominion over the real estate.

Discrepancy of Area in the purchase of a property

In some cases, the buyer realizes after the sale that the acquired property has a different area than stipulated in the contract. This discrepancy of area in the sale of a property has been the subject of analysis by both the courts and legal doctrine.

The issue of area discrepancy in the sale of a property is regulated in articles 1,469 to 1,472 of the Spanish Civil Code. These articles distinguish between two modalities of sales contracts: (a) sales contracts with expressed area or price per unit of measurement, and (b) sales contracts at a lump sum price or as "cuerpo cierto." In the first modality, the area discrepancy affects the buyer's payment obligation, while in the second modality, the area discrepancy is irrelevant in relation to the price.

What does "cuerpo cierto" mean in a purchase agreement?

A "cuerpo cierto" sales contract is one in which the price is not calculated based on the area of the property or per unit of measurement, but rather a predetermined global sum is established. In this case, the real estate object of the sales contract is delimited by its description in the contract or public deed, regardless of its actual area. In this type of sales contract, the area of the property is not a consideration for the parties in forming their contractual will, so its mention in the contract is irrelevant.

The expression "cuerpo cierto" solely refers to the area of the property, indicating that the delivery of the described object is accepted, even if the area is different.

Regulation of "cuerpo cierto"

"Cuerpo cierto" sales contracts are regulated in article 1,471 of the Spanish Civil Code. This article establishes the following:

In the sale of a property made at a lump sum price and not based on a unit of measurement or number, there will be no increase or decrease in price, even if the area or number stated in the contract is greater or smaller.

The same applies when two or more properties are sold for a single price, but if, in addition to stating the boundaries, which are essential in any real estate alienation, the area or number is designated in the contract, the seller will be obliged to deliver everything that is within the same boundaries, even if it exceeds the area or number stated in the contract. If unable to do so, the seller will suffer a proportional decrease in price based on the deficiency in area or number, unless the contract is annulled due to the buyer's dissatisfaction with the non-delivery of what was stipulated.

The opposite of a "cuerpo cierto" sales contract would be a sales contract based on a unit of measurement, where the price is determined by multiplying the actual area by a price per square meter.

Consequences of "cuerpo cierto"

As mentioned earlier, if the sales contract specifies that the object is a property under a "cuerpo cierto" arrangement, the area of the property is not relevant (Art. 1,471 of the Spanish Civil Code). Therefore, if the acquired property has a larger or smaller area than stated in the contract, there will be no increase or decrease in price since the area was not taken into consideration when agreeing on the price.

However, the expression "cuerpo cierto" does not imply a generic waiver of the buyer's rights. The buyer can still claim against the seller in cases of hidden defects (subject to their own limitations), as well as when the property does not correspond to what was delivered ("aliud pro alio," urban planning violations), or in general, with the power of resolution provided for in Article 1,124 of the Spanish Civil Code and the compensations established in Article 1,101 of the Spanish Civil Code.

Use of the term "cuerpo cierto" in off-plan property purchases

The concept of "cuerpo cierto" is widely used in the purchase of existing homes and constructions, being the prevailing practice in the real estate market.

It is uncommon to find a building (homes, premises) that is not acquired under the "cuerpo cierto" modality.

However, in the purchase of future properties (off-plan purchases), where the area is not yet delimited because it is an object to be constructed or in cases where the area can be determinant (shopping centers, where the gross leasable area is essential, agricultural properties, etc.), the price can be established based on a unit of measurement.

In summary, a "cuerpo cierto" sales contract implies that the price is not calculated based on the area of the property, but rather a predetermined global sum is established. The area of the property is irrelevant in relation to the price, and if there is an area discrepancy after the sale, there will be no increase or decrease in price. However, the buyer can still claim in case of hidden defects, contractual breaches, or irregularities in the property. The "cuerpo cierto" modality applies to existing properties, while in off-plan property purchases or other situations where the area is important, the price is usually established based on a unit of measurement.