Commentary on Judgment No. 11574/2024: Price Clause in the Transfer of Surface Rights

The recent order No. 11574 of April 30, 2024, issued by the Court of Cassation, offers important clarifications regarding the validity of price determination clauses in agreements for the transfer of surface rights, particularly in the context of public and subsidized housing. This judgment serves as a reference point for professionals in the sector and for citizens involved in contracts of this type.

Regulatory Context

Law No. 865 of October 22, 1971, in Article 35, governs the transfer of surface rights in the context of public residential construction. The judgment in question falls within this regulatory framework, clarifying when a price determination clause can be considered null and void. Specifically, the Court has established that such nullity occurs only if the agreed price exceeds that set in the agreement between the developer and the territorial authority.

The Judgment's Holding

Agreement stipulated pursuant to art. 35 of Law No. 865 of 1971 - Preliminary agreement between developer and buyer - Transfer of surface rights - Price determination clause - Nullity - Limits - Consequences regarding a judgment pursuant to art. 2932 of the Civil Code. In matters of public and subsidized housing, pursuant to art. 35 of Law No. 865 of 1971, the price determination clause for the transfer of surface rights, in the preliminary agreement between the developer and the prospective buyer, is null and void only in the event that it exceeds the price established in the agreement between the same developer and the territorial authority. Therefore, if the contractual price is lower than the latter, the contract is valid, and the transfer of real estate rights through a judgment pursuant to art. 2932 of the Civil Code must be subject to the payment of the remaining amount between that indicated in the contract and that already paid.

Practical Implications of the Judgment

This ruling has several practical implications for parties involved in a surface rights transfer agreement:

• Recognition of the contract's validity if the price is lower than that agreed upon with the territorial authority.
• Clarity on the conditions for the validity of contractual clauses, reducing the risk of litigation.
• Possibility of forced performance of the contract through a judgment pursuant to art. 2932 of the Civil Code, provided the outstanding amount is settled.

In this way, the Court of Cassation not only clarifies the current legislation but also offers a more certain framework for developers and buyers, avoiding ambiguities and potential abuses in surface rights transfer contracts.

Conclusions

In conclusion, judgment No. 11574/2024 represents a significant step forward in the regulation of surface rights and the management of transfer contracts in the public residential construction sector. The clarity provided by the Court of Cassation allows for better navigation of the complex world of construction agreements, protecting the rights of all parties involved and promoting legal certainty.