El blog de Maria

belucky358 said:
Tuesday, April 22, 2014 @ 10:10 AM

Maria,
Would it be possible and allowed for all the ex buyers, who have proof of their claims, to identify these conveyancing lawyers who failed to arrange or ensure that a Bank Guarantee was in situ.
I think this information would be of great benefit to future buyers.
How many of these incompetent, useless, negligent, so called conveyancing lawyers are still practicing with impunity.

mariadecastro said:
Tuesday, April 22, 2014 @ 11:56 AM

Belucky:
Of course it would be possible and, for sure, very healthy for the profession
Kindest,
Maria

josey96 said:
Tuesday, April 22, 2014 @ 1:14 PM

I totally agree with Belucky as naming and shaming might just highlight some of the so called professionals who acted so poorly for many of us. Many of whom and including my original lawyer are still in business today.

Just one point though Maria with regards to legal action against the Conveyancing Lawyer.

Our original Lawyer stated in the contract we signed with them that they would collect all of the Bank Guarantees for us so we did not need to worry etc...

Whist they did make contact with the Developer to try and collect the Bank Guarantees, they collected non at all and then let us pay the 2nd deposit knowing that they had not even collect the BG's for the 1st deposit.

Surely any decent Lawyer would have told us not to pay the 2nd deposit as the 1st payment had no guarantee etc...and at this point demanded the refund of the 1st deposit.

Looking at your post it states that you could only take action against the Coveyancing Lawyer if they had not requested the BG's etc??? Could you still take them to court for failure to collect the BG's even if they had asked for them from the Developer as I would think in most cases that this is where a lot of us suffered, and if the original Lawyer only has to prove that they requested the BG's to stop any legal action then it just shows another massive failure/flaw in the Spanish legal system.

mariadecastro said:
Tuesday, April 22, 2014 @ 1:48 PM

Josey96:

In your case, as you have one Bank Guarantee, the best action ahead is to act against that Guarantoor or the Bank where your money was paid to.

Kindest,

Maria

josey96 said:
Tuesday, April 22, 2014 @ 4:14 PM

Hi Maria

We didn't get any guarantee's even though they requested them from the Developer so would we be able to claim against the Original Lawyer???

Many Thanks

ads said:
Tuesday, April 22, 2014 @ 9:31 PM

Maria,

Are the judiciary now consistently stamping their moral authority where applicable on GENERIC guarantors to make them liable for return of deposited monies and damages, in all instances of non-issuance of individual guarantees, regardless of where monies were transferred?

Why should the innocent purchaser, who has gained cancellation of contract, be subjected to further prolonged litigation against the Bank where monies were transferred (if this is a different Bank to the generic Bank) and against lawyer’s legal indemnity, when from the outset it is the generic guarantor that has a duty of care to ensure that the developer can never withdraw deposits without controlling the purpose and request release of individual guarantees as per the requirement of existing law 57/68 (and thereby adequately protect deposited monies)?

Isn’t the purchaser in this instance being made the scapegoat for generic guarantor’s failures by subjecting them to further litigation to recoup monies from alternative sources (alternative Bank and lawyer’s legal indemnity), when it is the generic guarantor’s failures that have directly compromised the innocent purchaser?

mariadecastro said:
Wednesday, April 23, 2014 @ 2:17 PM

Ads:

In those case, Judges want to know that the money was transfered to the developer´s account.

mariadecastro said:
Wednesday, April 23, 2014 @ 5:20 PM

Josey:

Apologies as I missread the message you posted. IN your case, best strategy is to start asking Lawyers where they paid money to and if developers account is found, to act against the receiver Bank.

Cheers

Maria

ads said:
Thursday, April 24, 2014 @ 10:28 AM

Maria,
In the case of lacking documentary evidence to prove that monies went to a developers account due to non disclosure by the conveyancing lawyer, would it be possible that the judiciary could rule against the generic guarantor and make them liable for return of monies (due to their compromising failures to follow requirements of existing law and placing the purchaser at grave risk) and then, if required, it would be for the generic bank to take action against the developers bank and conveyancing lawyer?
Wouldn't this be morally acceptable rather than place the continuing burden on the innocent party?
Or in this instance does the purchaser have to abandon their claim against the generic guarantor until such time as the evidence is acquired from the conveyancing lawyer, which could place them at further risk of protracted litigation if monies were not transferred, as legally required, into the developer’s account?
There is a major concern here that the innocent purchaser is being subjected to increasing and protracted judicial procedures due to no fault of their own, when the judiciary could rule against the generic guarantor and make them fully responsible for the knock-on effects of their failings on the innocent party.

mariadecastro said:
Thursday, April 24, 2014 @ 2:25 PM

Dear Ads:
Unfortunately not, it is not possible. They are two different actions.

That´s why, our opinion is that, if information was not or is not diliegently provided by Conveyancing Lawyers, you can ask them for associated damages.

Every case is obviously, different,

Maria

ads said:
Friday, May 2, 2014 @ 3:00 PM

Maria
Can you please identify what are the obligations (to demonstrate due diligence) of the conveyancing lawyer if the BG was not provided as per requirement of Ley 57/68?
Should they have forewarned the client that no BG had been made available within a given timescale?
Should they have requested the details from the developer, to identify where monies had actually been transferred (Bank and account) if they failed to transfer monies directly to a secure developer account ?
Should they in fact have taken action to cancel the contract and regain monies at that point, when the developer was still solvent? (recognising the grave risk to the client being left without insurance as required in law)?
It seems the proviso "unless they can prove they requested the Guarantees and were not provided by the developer" is insufficient, is it not?

mariadecastro said:
Friday, May 2, 2014 @ 3:11 PM

Ads: Following your questions above:

Yes, they should have not made any advanced payment without the corresponding guarantee being in place.

Yes, they should not have sent amounts to any developer´s account but the one included in the contract as special for clients´off plan deposits.

And yes, they should they in fact have taken action to cancel the contract and regain monies at that point, when the developer was still solvent (recognising the grave risk to the client being left without insurance as required in law)

ads said:
Friday, May 2, 2014 @ 6:10 PM

Thank you Maria.

belucky358 said:
Saturday, May 3, 2014 @ 9:57 AM

Maria,
Since I have read the above obligations of a lawyer can you give me your opinion on the following paragraphs which were included in my purchase contract and should they have been acted upon. First it says.....
"In the event of not obtaining the licence of work within 6 months of the signing of this contract the purchaser will be able to opt from that moment for the termination of the contract of sale with the ensuing reimbursement of all monies received in advance since the reservation, as a payment of the property"
Second it says...
"In case of wanting a Bank Guarantee or assurance of the monies paid will be obligated to provide it once the licence of work is obtained, the cost of this being with the purchaser"
Third it says....
"In the case that the termination of this contract is urged by the causes for seen in Article 3 of Law 57/68, the quantities received will be retuned to the purchaser as well as his corresponding legal interests"
First paragraph...Since our apartment was never built due to the lack of the licence should my lawyer have either cancelled the contract at the end of the first 6 months or at least consulted me ?
Second paragraph...It would appear that due to the "no build" we would never have received a Bank Guarantee as it was only offered once the licence of work was obtained, plus even then, we had to pay all the costs.
Third paragraph.... Again since our property was never built within the allocated 20 months, should my lawyer have cancelled the contract or at least consulted me ?

mariadecastro said:
Monday, May 5, 2014 @ 10:32 AM

Belucky:

Your lawyer should have not handed over any of your deposits without the corresponding guarantee, whatever there was a License or not.

Then, once the 6 months arrived and no license was in place, he should have enforced it ( of course after your previous consent for this)

Bank Guarantees are to be provided at no cost to the buyer.