El blog de Maria

We were extremely pleased to inform our clients recently that we had won their LEY 57/1968 Bank Action case against Unicaja in the First Instance Court in Marbella for an off-plan property they reserved at Campos de Guadalmina from the developer Martinsa Fadesa.

Individual Guarantee provided by Unicaja

Our clients paid their off-plan deposit to the developer’s account at Banco de Andalucía.  Unicaja issued the Individual Guarantee for the buyers off-plan deposit paid to the developer’s bank account at Banco de Andalucía.

First Instance Court Sentence

The First Instance Court has found Unicaja guilty according to its obligations under LEY 57/1968 and sentenced the Bank to refund the full amount of the off-plan deposit plus legal interest from the date the buyers paid to the developer’s account.  Costs of the First Instance procedure are imposed on the Bank.

Interesting Statements from the First Instance Sentence

“The plaintiffs filed a Lawsuit against Unicaja, requesting the conviction of the bank according to its responsibility under LEY 57/1968 for the individual Guarantee it issued to the plaintiff.  The plaintiff requested the refund of the total amount paid to the developer’s bank account and covered by the Guarantee under the Purchase Contract plus interest & costs.

On 27 February 2003 the plaintiffs signed a Purchase Contract to purchase a property in the development ‘Campos de Guadalmina’ from the developer Martinsa Fadesa.  On 5 March 2004, Unicaja issued an Individual Guarantee to the plaintiff for the off-plan deposit that was paid according to the purchase contract to the developer’s account at Banco de Andalucía.

Unicaja opposed the Lawsuit on the grounds that the plaintiff had paid the off-plan deposit to Banco de Andalucía and not to an account at Unicaja.  The bank also stated that the Guarantee was only valid until 30 December 2005.

We must note that the Supreme Court Sentence dated 13 January 2015 states the fact of the buyer having not entered the amounts in the special account does not exclude the insurance coverage. 

Furthermore Article 4 of LEY 57/1968 establishes that “Once the Certificate of Occupancy is issued by the Provincial Delegation of the Ministry of Housing and given by the promoter of the housing to the buyer the rights guaranteed by the insurer or guarantor will be cancelled”, therefore the bank cannot set the expiry date of the Guarantee in contradiction to the Law.  In this case the delay in delivery of the property has been more than 12 years.

These are, in short, the parameters that should be considered in this Sentence which is aligned with the undisputed dominant jurisprudence which strengthens extraordinarily the position of an off-plan homebuyer according to the legal Guarantee that was issued.

This decision, no doubt, will make it harder in practice for banks to grant these guarantees, but will also encourage banks to force promotors to deliver the properties in the agreed period, thereby avoiding the serious situations of possible abuse that have occurred in many cases in recent years.

The consequence of the above is that Unicaja must proceed with the repayment of the amounts paid by the buyers to the developer together with legal interest and costs”

Possible Provincial Court Appeal

Unicaja has 20 working days from the date of notification of the Sentence, which was 19 December 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Malaga.

Although Appeals must be submitted strictly within a 20 working day deadline, we do not normally receive notification of an Appeal or of a firm sentence from the Court until a few weeks after the deadline due to the workload of the Court.

If an Appeal to the Provincial Appeal Court is filed by the Bank it will be necessary for us to file an Opposition to the Appeal on behalf of our client.

A nice little square of Marbella