The fiduciary scheme in the real estate business is undoubtedly a model that fosters trust, security, and stability in the planning and execution of real estate projects. Specifically, this scheme is a tool involving all the stakeholders in the real estate chain, such as financial institutions, builders, developers, buyers, and landowners, among others. Each stakeholder has a defined degree and level of responsibility based on their respective roles.
Regarding fiduciary companies, their fundamental purpose and role lie in managing the resources and assets assigned to the real estate project or the resources associated with its development and execution, in accordance with the instructions outlined in the contract.
Now, concerning the responsibility of fiduciary companies, the Civil Third Chamber of the Superior Court of Bogota, in its ruling of May 23, 2023, stated that while the fiduciary company’s own assets remain unaffected by claims arising from the trust business, both the trustor and the trustee, the latter as representative and manager, must assume obligations towards the real estate consumer. A real estate consumer is someone who acquires, enjoys, or uses a property intended for residential, private, family, or business purposes, and their relationship falls under consumer protection rules as per the Consumer Code.
Therefore, clauses that stipulate exemption or exoneration of trust property from liability for delays in construction, execution, completion, and delivery of the real estate project are not binding for the final recipient, as a consumer relationship persists. Precisely, in terms of consumer rights, the principle of relativity of contracts implies joint and several liability among all involved parties for breaches and the consequences arising from these breaches towards the final recipient.
Although this stance is not yet definitive in judicial settings, decisions like the one issued by the Superior Court of Bogota suggest that this theory of joint and several liability between the trustor and the trustee will likely continue to be embraced and applied in disputes involving all actors in the fiduciary scheme, concerning consumers. This is especially true considering the critical situation currently faced by the construction sector, which has been affecting the normal development of ongoing real estate projects.
In conclusion, the scope of joint and several liability between the trustor and the trustee in the real estate business requires a rigorous analysis from the context of consumer law and the prerogatives available to the final recipient of a real estate project. In this regard, the role of the fiduciary company in managing the resources and assets of the real estate project, as well as the obligations assumed by the trustor and the trustee towards the real estate consumer, are crucial aspects to consider when structuring, planning, signing, and executing contracts that impact their rights.
 Financial Superintendence, E.C. 029 of 2014 (Basic Legal Circular). Part II Tit. II, Chap. I, No. 8.2
 Civil Chamber. Superior Court of Bogota. Ruling of July 15, 2021. File 20195804601, Presiding Judge: Marco Antonio Álvarez Gómez.