The warranty of peaceful possession in a contract of sale of immovable property : how could the warranty of peaceful possession be applied when it comes to sanctioning illegalities?

Abstract

This paper studies the sale of an immovable property, with special attention given to the buyer, their1 related risk, and the necessary building permits tied to a property being sold. Research concentrates firstly on the warranty of peaceful possession and its application by the Courts when sanctioning illegalities. Secondly, the study focuses on buyers faced with sanctioning costs and enforcement actions, with attention given to whether they can resort to this warranty and oblige the vendor to undertake costs relating to the illegal state of the building. Thirdly, this paper tries to confirm whether the warranty is extendable in its application or whether it is to be interpreted rigidly. Methodological instruments include case analysis, legislative analysis and qualitative research. Findings reveal that our Courts do apply the warranty of peaceful possession to protect the buyer, defining the vendor as breaching the same warranty and held liable for any sanctioning costs. Case law also displays, in the results, that when a contract of sale is carried out without the sanctioning of illegalities, the new property owner faces liability to enforcement actions by Authorities, expenses and further issues. Thirdly, this paper also confirms that the warranty of peaceful possession can be extended in its interpretation to cater for scenarios that were not envisaged by the legislator upon promulgation of the law. This corresponds with contemporary realities, as results show that in previous scenarios such extension in interpretation was not needed.