The lack of a construction permit represents a material defect of real estate in terms of the provision of Art. 401. st.1. (3) of the Obligations Act (OA), because the real estate does not have the property and characteristics that are explicitly or tacitly contracted or prescribed. According to the facts of the case, this is construction land in the business zone purchased for the purpose of construction of new buildings and adaptation of existing buildings for which the investor, in terms of the provisions of Art. 27 of the Construction Act (OG numbers: 77/92, 82/99, 26/93, 29/94, 33/95, 91/96, 52/99), was obliged to obtain, before the start of construction, the construction (building) permit, meaning it is a defect prescribed by law, yet despite this, The First Instance Court rightly rejected the claim.
Regardless of that, in relation to the responsibility for material defects, it is necessary to point out that according to the provision of Art. 402. Paragraph 1. of the Obligations Act (OA) a seller is not liable for defects if at the time of the contract they were known to the buyer or could not remain unknown to him. In this case, those defects are such that a person with average knowledge and experience of the same profession of the buyer could easily have noticed them during the usual inspection.
The plaintiff as an investor was able to inspect the collection of documents, catastro, or competent building permits regarding whether a building permit was issued for the constructed buildings, all the more so because he was aware of the manner in which the defendant acquired ownership of the real estate in question and the defendant handed him all the documentation at his disposal. Therefore, both his failure to be interested in the legality of the construction and the fact that these deficiencies could not have remained unknown to him both during the negotiations and at the time of the conclusion of the contract are to the detriment of the defendant.
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