When purchasing real estate, the handover is a crucial moment that establishes significant rights for both the buyer and the seller. Under ZVKSES provisions, the seller fulfills their contractual obligation by delivering the property to the buyer. The legislator has precisely defined the term “handover of real estate,” linking it to several legal actions by the seller, including the delivery of the occupancy permit, rather than merely transferring possession.
Obligation to Deliver the Real Estate
The seller fulfills their obligation to deliver the property to the buyer when they:
- Obtain an occupancy permit,
- Ensure the property is constructed with the characteristics specified in the sales contract, and
- Enter into a property management agreement with a property manager under the Housing Act (SZ-1) and ensure the property manager has taken over the common areas of the building, if required to appoint a property manager.
The seller delivers the property to the buyer by:
- Enabling possession of the property,
- Delivering a copy of the occupancy permit for the building, and
- Providing additional documentation (sectional plans for individual units, required certificates, warranty documents, declarations of conformity for equipment and appliances, and as-built project documentation).
All these conditions must be met by the contractual deadline for the delivery of the property to the buyer.
Delay in Delivering the Property and Contractual Penalty
The seller must deliver the property to the buyer within the agreed timeframe specified in the sales contract. If there is a delay caused by reasons attributable to the seller or persons acting on their behalf, the buyer is entitled to claim a contractual penalty.
The seller cannot exempt themselves from liability for delays in delivering the property due to construction-related reasons, regardless of whether the construction is carried out by the seller or other parties contracted by the seller, or due to other factors within the seller’s domain or that of third parties performing services related to the construction or fulfillment of the seller’s obligations toward the buyer.
In case of delay, the buyer is entitled to demand a contractual penalty of 0.5‰ (0.05%) of the purchase price for each day of delay throughout the delay period.
The sales contract may limit the total amount of the contractual penalty to a specific percentage of the purchase price, but this percentage cannot be less than 50% of the total purchase price.
Acceptance of the Property
The seller and buyer must prepare a report on the handover and acceptance of the property.
During the handover and acceptance, the seller must inform the buyer of:
- Their right to request the rectification of defects identified during acceptance,
- Their right to claim the contractual penalty for any delay in delivering the property, and
- The fact that these rights will be forfeited if not asserted during the acceptance process.
If the seller fails to inform the buyer of their rights and the legal consequences as stated above, the buyer retains the right to request rectification of defects that could have been identified during acceptance, even if they did not request them at the time. Similarly, the buyer retains the right to claim the contractual penalty for delays, even if they did not assert this right during the acceptance process.
Conclusion
Timeliness is critical when asserting rights under ZVKSES. Buyers must assert their rights—ranging from defect rectification requests to claims for contractual penalties for delays—promptly and precisely, as statutory deadlines are strictly defined and can significantly affect the outcome of the process. Legal assistance during these key moments is essential, as a legal expert can ensure that the buyer’s rights are asserted correctly and on time.
