In ruling SC 395 of 2023, the Supreme Court of Justice has determined that, in light of the provisions of Article 78 of the Political Constitution, Law 1480 of 2011, the special provisions that said statute contemplates regarding the real warranty and the regulatory norms, which are established in Decree 735 of 2013 and 1074 of 2015, particularly those related to real estate, the court concludes that:
Both consumer law and all the mechanisms it contemplates have the “consumer” as the subject of protection, a concept within which the “user” is included.
Consequently, consumers are, on one hand, the beneficiaries of this protective system and, on the other, the holders of the actions that it develops.
Thus, regarding the real warranty, the natural or legal person who, in the corresponding consumer relationship, holds the indicated status—to repeat, that of “consumer”—is the one who can make it effective.
Now, when it comes to the direct claim of the real warranty regarding a real estate property, or the corresponding jurisdictional action, the legislation contemplates variations regarding the holders of such benefits, or the protection measures adopted, depending on whether the defective component for which the request is made belongs to a private property unit or corresponds to one of common use; in all cases, they always empower the “consumer” and impose on the provider or vendor the duty to carry out the repair, replacement, or refund of the money, as the case may be, without contemplating distinctions of any kind.
This ruling forcefully ratifies that the protection regime mandated by Article 78 of the Political Constitution, which was developed by Law 1480 of 2011, aims for the defense of “consumers,” a concept that includes “users,” as they are the weaker party in the “consumer relationships” they maintain with producers or providers for the procurement of goods or services, in pursuit of satisfying their own needs.
Furthermore, it has affirmed that those who hold the status of consumer in consumer relationships for the acquisition of private domain units forming a horizontal property are empowered to make the legal warranty effective both in relation to private property and common property; ultimately, through such acquisitions, they became owners of both types of property, the latter being held in common and undivided.
As such, any owner of a private unit, individually, can make use of that power, naturally, in accordance with the consumer statute.
Additionally, without prejudice to the above, when the damage affects a common asset, the constituent co-owners of the horizontal property, in consideration of the mandate of Article 14 of Decree 735 of 2013, may act as a group through said legal entity of which they are part, which shall be represented by the designated administrator, subject to the law.
