What is the situation if promised bank guarantees were not obtained?

Hello everyone

I would be interested to here from anyone who knows whether Spanish Lawyers are obliged to take out Professional Indemnity Insurance as in the UK.  

I am one of the unfortunate San Jose victims who does not have a bank guarantee despite being assured by my lawyer one would be obtained and that my deposit would be held in escrow until such time as the guarantee was issued/in place.

If Professional Indeminity Insurance is mandatory is there a central body, like the Law Society that I can contact to check the lawyers credentials and current status.

All advice/help gratefully received.

Many thanks

Helen

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Hi Helen

Welcome to Eye on Spain, even if it is under such unfortunate circumstances.

I am sure our regular lawyer, Maria de Catro, will be along shortly to answer your question.  

In terms of the bank guarantee, was it written into your contract that you "had" a bank guarantee?  This does count for something.

Justin

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Hi Justin

Thanks for your response.

I have not been provided with a copy of the contract, however, the Lawyers initial letter stated that by utilising their clients account to make stage payments I would be protected and that they would seek (most importantly as they state) seek the bank guarantee to cover my investment.  They also mention that a bank guarantee is essential!!!

I do have subsequent correspondence that also refers to them obtaining guarantees and holding my money in escrow until the guarantees are in place.

Whilst I never assume anything where the law is concerned it is my understanding that guarantees were a requirement of the contract and the lawyers certainly appeared to be making all the right noises at the outset.  

Thanks and I look forward to hearing further on this point.

Helen

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Espana

The letter to the Collegio must be written in Spanish. If your lawyer is in another province then you need to address the appropriate Collegio.

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It is time to stop messing about and take action against the Spanish government on the question of bank guarantees, illegal builds and state and local corruption. All EU citizens have a right to expect the governments of member states to enforce their own laws, especially when not to do so is to the determent of citizens of other member states It is illegal in Spain to sell of plan without providing guarantees; it is illegal in Spain to sell property on land you don’t own. It is illegal in Spain to build urbanisation without proper planning permissions. The fact is that these things happen regularly. The responsibility for this rests fairly and squarely on the shoulders of the Spanish government. The European courts need to take a hand in protecting Eu citizens from the short comings of a middle age system of administration, corruption the and abuse of human rights. So let’s put the blame where it truly belongs not on the agents, not on the developers, not on the banks but on the government which stands ideally by while these abuses happen

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Good post twin.

Oh, if it was so easy ! It certainly is a disgusting state of affairs. Black money is a big issue yet that also is illegal. Notary's still turn their cheek yet are meant to be watching paper trails. Everyone seems to be in someone's pocket.

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Why not contact......bombard the Spanish embassy in London, after all they are asking for your complaints

Extract from their website:-

"We welcome your feedback and encourage suggestions, recommendations or complaints. " To contact us with your feedback, suggestions, advertising or partnership opportunities, please email us on admin(@)embassyhomepage.com For other embassy related enquiries including visa issues and visa forms, please visit our main home page and select the embassy concerned to find their contact details. ** When sending the email to us, please replace (@) with @ sign." ------------------------------------------------------------------ I suggest you cc his Gordon-ness at No10 whilst you´re about it   www.direct.gov.uk  .  Can I suggest each person sends the same email at least 10 times per day....X 20,000 EOS members that would be 1.4 million emails per week............ that should keep em busy eh What about it Justin????  Who wants to create the template email????

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I just had another thought   Suppose we got together as many angry Brits as possible through all these forums and threatened to register to vote in Gordon Browns constituency and vote against him. I think half a million expats should overturn his majority :-

General Election 2005: Kirkcaldy and Cowdenbeath
Party		Candidate	Votes	%	±%
	Labour Party	Gordon Brown	24,278	58.1%	n/a
	Scottish National Party	Alan Bath	6,062	14.5%	n/a
	Liberal Democrats	Alex Cole-Hamilton	5,450	13.0%	n/a
	Conservative Party	Stuart Randall	4,308	10.3%	n/a
	Scottish Socialist Party	Steve West	666	1.6%	n/a
	UK Independence	Peter Adams	516	1.2%	n/a
	Scottish Senior Citizens	James Parker	425	1.0%	n/a
	Independent	Elizabeth Kwantes	47	0.1%	n/a
	Independent	Pat Sargent	44	0.1%	n/a
Majority			18,216	43.6%	n/a
Turnout			41,796	58.4%	n/a

Should be easy o do for any other government minister.

Only a nasty thought at 01:35 in the morning

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I am one of the 'Stupid' off plan purchasers who accepted the advice of the estate agent, and used his recommended lawyer.

The recommended lawyer did not get the bank guarantee, even though the contract states that it would be provided. It never was.

I eventually changed lawyers and my new 'independant' lawyer is trying to recover my deposit, due to the developer being in breach of contract, as he is 2 years overdue with construction. The developer says he will return my money when he is able, but unfortunately he has no cash at the moment.

My question is this;

If the developer goes bankrupt, can I recover my money, by a legal claim, from the first lawyer due to his negligence in failing to secure the bank guarantee?

Any advice would be appreciated.

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This is one for Maria I think David.

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Hi All

Just what is the legal requirement on the builder in issuing the Bank Guarantee (how long after paying them money do they have to issue the guarantee)?

Phil

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DavidAH: Answer to your question i green below:


If the developer goes bankrupt, can I recover my money, by a legal claim, from the first lawyer due to his negligence in failing to secure the bank guarantee? Certainly.

PGM: Answer to your question in green below:

Just what is the legal requirement on the builder in issuing the Bank Guarantee he needs to give it to you in the same moment you are depositing money.  See this article FYI: http://www.eyeonspain.com/spain-magazine/bank-guarantee-legal.aspx. Specially provision 2 at the end. (how long after paying them money do they have to issue the guarantee)?

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HoIa Maria

Thank you for the information.

I paid my first instalment for my off plan property in October 2007 and wasn’t issued the Bank Guarantee until March 2008, 6 months later.

I am now paying my next payment and have asked my lawyer to ensure I get the guarantee as soon as the payment is made.

My lawyer has told me the builder has told her they may not issue the grantee, as my apartment should be ready within thr next 6 months.

My lawyer has also told me I cannot withhold this payment, as I would then be in breach of contract.

So I just would like to know what can I do? And what my rights are?

Regards

Phil

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Dear Phil:

PLease have answers below in bold green ( same text of your message):

HoIa Maria

Thank you for the information.

I paid my first instalment for my off plan property in October 2007 and wasn’t issued the Bank Guarantee until March 2008, 6 months later.

I am now paying my next payment and have asked my lawyer to ensure I get the guarantee as soon as the payment is made. ASk your lawyer to ask for the Bank Guarantee by burofax mentioning that you would be reporting that to Consumers Authorities and cancelling the contract id the Bank Guaranyee is not issued. If your lawyerrefuses to do so, it is that he is more interested in being paid at completion than in protecting your rights. You can show to him the article I linked to my previous post which is not but a mere translation of what  Law says.

My lawyer has told me the builder has told her they may not issue the grantee, as my apartment should be ready within thr next 6 months.That is irrelevant. If he does not issue it, he can be fined with a 25% of the amount he should guarantee and you can cancel the contract.

My lawyer has also told me I cannot withhold this payment, as I would then be in breach of contract. Again: ASk your lawyer to ask for the Bank Guarantee by burofax mentioning that you would be reporting that to Consumers Authorities and cancelling the contract id the Bank Guarantee is not issued.

So I just would like to know what can I do? And what my rights are? You know now.

Regards

Phil

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HoIa Maria

Thank you again for your excellent help and information, I have emailed my lawyer in line with the information you have given me.

I will let you know how it goes.

Regards

Phil

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Maria.

I asked ; 

If the developer goes bankrupt, can I recover my money, by a legal claim, from the first lawyer due to his negligence in failing to secure the bank guarantee?

You replied ; Certainly

Thank you very much, this answer allows me to feel a little more secure.


This message was last edited by davidAH on 6/12/2008.

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