Cesión de solar a cambio de obra futura. Renacimiento de la figura

Résumé

The plot cession in exchange for the constructed building business is a topic of growing interest due to the new economic needs resulting from the global economic crisis which has impacted particularly the housing market. Such business may cover a whole variety of alternative figures and, depending upon its particular features, it can be assimilated to joint ownership situations or to the real state swap figure, being the latter the one with a more exhaustive legal regulation and most frequently used in the past. In our legal system, the plot cession in exchange for the constructed building lacks a complete and unitary legal regulation; the main current legal reference is contained in article 13 of the mortgage regulation which was devoid of substance as a result of the decisive judgement of the Supreme Court on the 31st of January of 2001. As a result of this, and in order to tackle the problems that often arise in the practical application of the plot cession in exchange for construction, the rules applicable to the swap contract figure are usually considered, excluding those which refer to the price. It is also common practice to make use of the analysis of the comparative law, and in particular of the French, the Italian and the German law, or of the recent legislation in Catalonia to assess from a legal point of view the most complex issues. The methodology used, both descriptive and analytical, stems from the analysis of the main elements which conform the plot cession business, its effects, and the penalties and actions resulting from the breach of contract in order to assess each of the potential difficulties through the application of the Spanish and the international law, the legal doctrine and the available case law. The most lawful and mutually beneficial figure would be one through which the assignor does not give up the property of the plot, but rather allows the constitution of a joint property between the assignor and the assignee which will be in turn converted into horizontal property rights following the finalisation of the construction works and the new building certification. We understand this figure is the one that offers the best guarantees over the future property to the most vulnerable party involved – the assignor – and may help to foster this type of business which plays a remarkable social role.