Warranty for eviction: risks in home purchases

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Eviction: general definition

To avoid “bad surprises” following the purchase of a specific asset, in particular, to prevent third parties from claiming on said asset some rights of which (as buyers) we were not aware, our legal system under Article 1476 of the Civil Code (and other related provisions) provides for the guarantee for eviction.

This is a warranty that operates automatically against the seller, who (unless there has been a mutual willingness to exclude it) must guarantee the buyer against the risk that third parties may, because of other and proven title, deprive the buyer of the property purchased or claim certain rights on said property that are capable of impairing the latter’s ownership.

Indeed, as the Article mentioned above 1476 of the Civil Code states, the seller has an obligation to:

• deliver the thing to the buyer
• have the buyer acquire ownership of the thing or the right if the acquisition is not an immediate effect of the contract guarantee the buyer against eviction and defects in the thing.
• Therefore, it is understood that eviction is a situation that arises when a person, the owner of a thing, sees the right of ownership or another right to that thing vested in another person.

Effects of warranty for eviction

Where, as a result of the purchase, the buyer suffers eviction, the seller must, in the case of:

• total emasculation (which occurs when a third party deprives the buyer of the property because he has a right of ownership over the purchased object) refund the purchase price as well as the expenses and fruits that he had to deliver to the third party
• partial evasion (which arises when a third party has a right to the property bought and sold that is capable of impairing the enjoyment of the property itself) recognize the termination of the contract or grant price reduction and damages.

But let’s take a closer look at the individual cases.

Total evasion

Art. 1483 Civil Code.

If the buyer suffers total eviction of the thing due to rights that a third party has asserted over it, the seller must compensate him for the damage.

But that is not all. The seller must also pay the buyer the value of the fruits that the latter is obliged to return to the one from whom he is evicted, as well as the expenses he has made in reporting the dispute and those he has had to reimburse.

In these terms, the buyer is entitled to:

• to damages
• to the restitution of the price, even if the property is diminished in value or deteriorated, except that, if this arises from the buyer’s act, the advantage gained by him must be deducted from the price
• To the reimbursement of expenses incurred.

The protection from total eviction finds its raison d’être in need to guarantee the buyer from any disturbance on the thing he has purchased; disturbance apt to frustrate the full and free availability of the property bought and sold.

Partial eviction

Under Article 1484 of the Civil Code.

The buyer is entitled to termination of the contract only if it is to be assumed that he would not have concluded the purchase without the avoided party; otherwise, he is entitled only to a price reduction and damages if he was unaware of the altruity of the property.

In the case where the eviction is only partial, the discipline to be followed is that of the “sale of property partially belonging to another person,” since the ascertained right of the third party and claimed on the purchased property is not likely to result in the dispossession of the property from the buyer.

Limits to warranty for eviction

Although the parties, seller and buyer, can, by agreement, rewrite the scope of the warranty, even to the point of excluding it, there is a counterlimit, according to which: even where the parties have excluded the operation of the warranty for eviction, the seller will still have to provide the warranty if the eviction depends on his own doing, and any agreement to the contrary is void.