The Colombian legal system 1 provides the figure of 'as is' or “cuerpo cierto” in Spanish, for the acquisition of a property as a unit, regardless of its measurements, and for a single sales price, based on the fact that the buyer knows the property.
However, this figure represents important challenges for the buyer, especially in the acquisition of rural properties. This is because, with this type of property, it's challenging to accurately determine its size at a glance. This can potentially result in disagreements regarding the property’s delivery and verifying its size.
In this context, the objective of the article is to outline certain recommendations to be taken into account before acquiring a rural property 'as is' or as cuerpo cierto and to present the available options for a buyer who has already signed a purchase agreement or promise of sale contract in which the property sold as a cuerpo cierto does not align with the promised characteristics.
The sale 'as is' or cuerpo cierto in Spanish is a different option from selling a property based on its area. In the latter, it's presumed that the actual size of a property precisely matches the details specified in the deeds or plans. Hence, the sales or the promise of sale contract explicitly mentions the stated size for sale. Consequently, any disparity between the actual size and the one specified in the contract could lead to contract termination.
Hence, if following the completion of a purchase agreement for a property sold 'as is' or cuerpo cierto, the buyer discovers that the property's area is less than what was stated in the public deed or doesn't align with the measurements from a physical inspection, the buyer typically cannot demand (i) a price reduction, (ii) contract termination, or (iii) a refund of the full or partial payment made to the seller.
In this regard, jurisprudence 2 has repeatedly stated that when someone acquires a property 'as is' or as cuerpo cierto with clearly defined boundaries, they cannot later claim deception and argue that the property has a different size. Additionally, it is emphasized that in a specific contract where the parties mention the property's area without explicitly or implicitly stating that this area is a critical factor for executing the contract, it will be interpreted as the property being sold 'as is.' Or as cuerpo cierto. Consequently, such information is considered approximate, and the sale precisely encompasses the surface area resulting from the boundaries outlined in the contract, neither more nor less.
The aforementioned interpretation assumes that the buyer is familiar with the property and had the opportunity to verify the land's conditions based on the specified boundaries. Consequently, during the acquisition, the buyer purchases the property 'as is' or as cuerpo cierto. Hence, the defense options for the buyer to request a price reduction because of this difference are constrained, as it is assumed they he/she had the chance to confirm the size and boundaries before executing the contract.
Building upon the aforementioned considerations, if the purchase of rural property has already been completed 'as is' or cuerpo cierto, the affected buyer has various alternatives in the event of receiving the property without the features promised in the contract.
First, the buyer could initiate a redhibitory action for hidden defects or acción redhibitoria por vicios ocultos in Spanish, through the ordinary jurisdiction, upon discovering that the property lacks the characteristics that were the basis for its purchase. This legal recourse is outlined in Article 1915 of the Colombian Civil Code. However, the challenge lies in proving that the defect was indeed concealed and couldn't have been easily identified through a simple inspection.
Secondly, if the seller claimed that the property possessed certain characteristics before the sale, which he knew were not part of the property or could not be delivered, the buyer could argue the seller's bad faith and seek contract termination. However, jurisprudence has clarified that bad faith must be substantiated and cannot be assumed, except in cases stipulated by law. Hence, the sole only way to prove it is through legal proceedings with pertinent and valuable evidence. Ultimately, a judge will determine if the contract can be terminated upon this argument.
However, if the buyer is within the context of a sales contract and can substantiate that, based on the commercial value of the property received, they paid more than double the actual value of the property, they have the right to request contract rescission due to substantial damages. Consequently, this would entail the reimbursement of the money paid.
Nonetheless, all the listed alternatives are subject to the final decision of a judge. The judge will meticulously analyze the evidentiary material provided by both parties and determine the merits of the alleged action.
Therefore, it is recommended to undertake the following actions before entering a purchase agreement or promise of sale contract of a rural property 'as is' or as cuerpo cierto:
1. To carry out a topographic survey through an expert that allows to clearly determine the area and boundaries of the property.
2. Request, analyze, and compare the public deeds that contain the area and boundaries of the property with the result of the topographic survey.
3. Request and review the Certificate of good standing and Conveyance or Certificado de Tradición y Libertad in Spanish of the property in order to verify the ownership, area and boundaries.
4. Perform a title study to identify the existence of encumbrances or legal limitations that may prevent the buyer from disposing of the property and validate its ownership and legal condition.
Once these actions have been carried out, it can be concluded that the buyer performed thorough due diligence upon the property and it is in the capacity to make an informed decision in regards to the rural land’s acquisition 'as is' or as cuerpo cierto as avoid the situation described above.
