Return of deposits for latter phases

I have for the last 3 years been reading this forum and now have decided to finally try to contact other buyers in the same position as me, to see if they are having any better luck than me in legally trying to get their deposits refunded for phases 3,4, or 5. Cleyton Ges have had my deposit like everybody elses for many years. Our Rosanna was due originally to be completed in March 2008 so I sold not only my home but also  my business in perfect time to meet my end of the contract. Then moved happily out to Spain obviously expecting maybe 6 months delay and have been renting now for over one year. In this year we have visited the site and still not one brick of my villa has yet been laid or the plot even marked out!!  Last October we had had enough of waiting and because we hold one of the few bank guarantees that were issued to the latter phases we went and sought legal advice. The Spanish solicitor advised us we had more than a good case to go to the court and order Cleyton Ges to return our deposit due to unreasonable completion delays. Due to living here we are now of the opinion that the site will never be finished in the next couple of years if ever and the commercial centre will never be built because obviously no one in business would rent a unit with very few potential customers if any!!! We have been informed that CAM Bank are no longer financing phases 3,4 or 5 so where is the money coming from? It is our opinion that anybody completing on their villas would be making one of their biggest mistakes ever especially due to the current financial climate. At present our case has been put before the court and we are waiting the outcome but doubt if we will still be in Spain by the time it's resloved, we like so many other Brits out here have decided not to buy and risk all for a bit of sunshine!!! Is there anybody else trying to sort out this mess legally if so how's it going?

I am certain that because you have a BG that yu will win your case as there are now regular stories of people receiving refunds as you are fortunate that it is the bank that pays out against the BG

The only problem with any claim that people don´t understand is that you can only claim once the due date, and any extended period documented in the contract, normally 6 months, have been exceeded and some people have also lost cases based on these facts. Sometimes the developer will try to claim exceptional circumstances, delay with planning or bad weather, that have effected the build time but again judges are now not accepting this as an excuse.

Even without without a BG once the contract dates have passed you can sue the developer for the return of money pad plus complensation however this is a lengthy, typically 2-3 years, and costly €6k, process and of course before you get paid out the developer may simply file for administration

For those people that don´t have any BG they are exposed and perhaps a berrter option would be tp bring actions to obtain the legally required BG´s and of course please don´t  ake any futher staged payments without obatianing one

Finally please don´t write Spain off based on your experience of one developer as it isn´t  just about the sunshine as it is a great place to live and work, the quality of life, the welcome from the people tto those that want to embrace the culture is increadable

It is also a great time to buy as prices for re-sale propeties are very low with some good bargains and a very low interest and mortgage rates, less that 3% available 

Hi Bruton,

I am on phase 3 and signed up in 2006, I am contemplating legal action to try to get my deposits back which I do have BG's for, but after reading Inspectorhomespains message I am not sure how I stand, I have had quite a few forecasted completion dates since I signed the original contract but am not sure which dates count.

The last date in writing from the developer was for May 2009 completion, there is no way this is going to happen now but whats to stop the builder from just moving the completion date forward 2010 -2011 it could go on forever does anyone know what defines the completion date.

Hello

I just wanted to let you know that I had serious concerns about this development last summer what with the change of the economy.  I too signed contracts in December 2006 paid deposits and received (Thankfully) BG's (after much chasing).  SO in september last year I thought there must be a way out of this contract legally - I noticed the get out clause that said you could formally rescind the contract within something like 14 days of the 18 months months following the building licence being approved if the developer is not in a position to complete or the hacitacion licence is not in place.  Then the following clause says the developer is not responsible for delays beyond their control which basically looked like even if you did try to rescind they would say the delay was out of their control and that was why they could not complete.  Therefore making it impossible to end the agreement which posed the question of whether the contracts were legally acceptable and (as I had used a lawyer for the purchase) if they were not then surely I'd have a case against my lawyer for negligence as they should have seen that the contract was unfair.  As it turned out my lawyer (AT THE TIME) said he tried to change the 'force majeur' clause but Cley Ges refused - he then said that as I had a guarantee I didn't have to worry because if it was NEVER finished I could get my deposits back under the guarantees.

So I looked at the documents I had and saw that the building licence was approved in March 2007 and that the 18 months and 14 days would end in 48 hours - so I tried to get my then solicitor to rescind the contract but they weren't available! - so I did it myself by way of letter to Cley Ges in english then used google translate to turn it into Spanish.  My then solicitor said I shouldn't have done that and that it wasn't acceptable so I 'told him' to do it for me as my lawyer - he said he quit!! So I had to find another lawyer with 24 hours to go to put the rescind request in formally - it had to be sent by Burofax - i didn't know what that was!  Luckily on this site I believe I found Roberto Leiro of Lawyers of Spain in Marbella - he has been absolutely invaluable.  So he read emails between me and my former lawyers about the whole Las Hig scenario he got the formal request to rescind in time and as they did that they requested a refund of monies paid under the BG's from CAM due to the failure to complete in time - CG said its not their fault why its delayed and CAM ignored the request.  That was in September last year.  Roberto told me that in Spain things take long and the courts usually give a developer a further 6 months after the contracted completion date to complete and that there was really no point trying to take it to court just yet.  He said I had 4 options -  1. To complete the purchase when ever it happened (as an invester this was not an option for me) 2. Wait another 6 months then request the money back from CAM 3. Go to court now and try to sue the developer and Cam bank 4. Sue my previous lawyer for negligence if I can't rescind or get my money back from the guarantees.

Knowing I had been exploited by my previous lawyer I was refreshed to hear straight talk for once.  He said the best and most cost effective thing for me to do was to wait the 6 months as it looked like the development wouldn't complete before then but I had to do it before the certificate de habitacion was issued.  In January of this year I had a letter from the developer through Spain Select the agents saying I had to arrange to come to spain to sign the contract as the certificates were due to be issued.  I did not go I waited - Roberto called CAM again requesting a refund under the BG's but they ignored him.  He said we should ask one last time in March when it'll be 6 months overdue if we get no joy then we'd have to consider legal action against the developer and CAM which would cost money.

So I was about to email Roberto 2 weeks ago to find out if it was now time to go to court when I got an email from him instead saying CAM have contacted him asking for a copy of proof of payment of the deposits - I got them off to him that day via email.  Then a few days later CAM called him back to say they need the original guarantees in order to refund the monies I paid - so I got them off.  On Wednesday of this week Roberto Leiro of Lawyers of Spain emailed me to say he's given the bank guarantees in and had got a cheque for all of the deposit paid plus legal interest and that as soon as the cheque cleared he'd deposit the funds into my account!  I CAN NOT BELIEVE IT - I won't believe it until I see the money in my account - the pessimist in me thinks they'll cancel the cheque!  So I won't say I've won just yet but if and when my bank account looks a lot healthier I shall let you know.

Good luck - I feel for everyone on this development - it would have been and may well still be a wonderful development - if you 'don't need the cash' right now if the development does finish it'll be a brilliant investment however the emphasis is on IF!!

Email roberto @ lawyersofspain. com to see if he can help you out tell him Miss A McG recommended him.  Only because he's aware of the situation of the development and the unfair contracts issued and he seems fair - not just out for money!!!

GOOD LUCK

This message was last edited by adaurable1 on 19/06/2009.

hello there audaurable 1,

Finaly some positive news - really hope the cheque is good - what a lovely post.

Its good to see some of the lawyers finally standing up and being counted in spain. The CAM have shown that they can be turned around then,

I shall give roberto a line or two and see what develops, incidently did you use ''Spain Select'' to transfer your deposits to Spain? or other?

Bye

Debs

x

audaurable 1, fantastic news.

I am presuming you were on Phase 1 or Phase 2 if you had a bank guarantee, is that correct.

We are on Phase 3, and cam bank have not issued bg to us, despite this being illegal in Spanish law. I have neded to appoint lawyer already but will email roberto for his thoughts as well.

Best of luck

Congratulations on getting you money back and I would expect, as the cheque is from the Bank, that you should be Ok and it will clear OK

I know that I have been critised in the past for spreading doom and gloom but this demonstrates I hope to people well that if you have all of the required paperwork, a valid BG, the law is on your side and you will recover your money and reduce your risk

There are a group of buyers in Murcia bringing an actions against a lawyer becaus he didn´t get them a BG and the developer has gone bust, making a claim against their professional idemnity insurance so we will see how this goes

Unfortunately when the going gets tough for some lawyers then they get going, resigning actng for you that is

Please also don´t be totally put off with Spain as there are some real bargains but buy a resale

yes I was buying on Phase 1 and i can now confirm my lawyers are transferring the money to me today. 

I am over the moon and will be able to clear my credit card bill!!

I do not know what the insolvency legislation is in Spain but I am an Insolvency Administrator in London have been in the business for 18 years - I am also a property landlord have been for 10 years.  Keeping a close eye on the market my biggest concern from last summer was what if the developer goes bankrupt - then when CAM bank started offering easier than believable to get loans to buyers I got worried even more - I realised that the bank was obviously so deep into this that they had to lend to buyers to get the money loaned to the developer back - which made me realise that it could be that CAM bank also become insolvent as we all now know banks can do! - it was these thoughts that made me seriously look at the contract closer to see if I could get my money back before that happened. 

This was a good development to take a punt on - (subject to the planning permission being legal) it is just bad timing that has caused the situation we have today, here and all over the world.  So my advice (not that it necessarily wanted) is don't get angry - as it just burns too much energy and gives you a headache!  it is what it is - a financial mess which is no fault of your own!!  So If you have your guarantees and you've acted in accordance with the contract try to get your deposit back now!!!!!  £1,500 plus disbursements to get back a lot more is a worth while investment.  For those of you without Bank Guarantees - if the development doesn't complete and the developer becomes insolvent (if not already according to some posts) and is not able to sell the development on then - unfortunately I can not see how you will get your money back as there would be no point spending money suing if they have no money to pay you when you win - because you will win as it is illegal to sell off plan without them.  I'm not trying to put a downer on things I'm just a very matter of fact person - there is really no point throwing good money after bad.  You never know - someone may take the development on for a real bargain price (as long as the planning permissions are legal) and then you'll be ok in the long run.

So yes - i've won - but it was bloody hard work & honestly a few sleepless nights.

Be lucky

Adurable,

Fantastic news you have got your money back, I to have bank Gaurantee,s and signed at the same time as you, can you tell me if you dealt direct with Clayton Ges or through Aramis there previous UK agent.

Aramis don´t exist anymore

Yes I know this but lots of us who signed up to the Project in the early days sent there deposits through Aremis who were the Bonefide agents for Clayton Ges, we still got our bank Guarantee's, I was just curious to know if Adurable was one of them.

I am in the same position as a couple of hundred others (might be majority) who handed over money to Aramis, and subsequently they disappeared with half of the deposit. The other half went to CG who honoured the whole deposit if we signed to the Finca Parcs project. I and most others (it seems) went with CG instead of attempting to sue Aramis. I later got only a letter/document from cam bank giving security numbers and stating a bank guarantee for my plot. This, I guess, might be a  different sort of guarantee to some that got into phase 1  and 2 at a later date. 

Seems to me, it would more of a challenge for us to get a full deposit returned and maybe this is the reason the bank is asking in addition to the guarantee proof of money transfers to them.  It appears most of us who signed to this project have not made money transfers to Cam Bank. 

If any former aramis investors have had they're deposit back, I think there would be an avalanche of claims.

The question is...has any former Aramis investor out there got their deposit back?

Hello Brickie & thanks.

The Agent I used was Spain Select but I chose to make the deposit payments direct to CG as I didn't want there to be any question about who I paid and when.  I just did international chaps transfer through my bank they give you a receipt confirming the transaction and the developers name also appears on my bank statements.

I had to first give my solicitors Power of Attorney in order for the bank to pay attention to my request to discharge and refund of deposit, they then asked for proof of payment to the Developer so I sent copies of the chaps transfers and the bank statements they then asked for the original guarantees.

Hope this helps

A

Thanks Adurable,

That's exactly what the CAM have asked to to do lets hope I have the same luckas you, although I really dont see why they need to see the bank transfer reciept as they must have an audit trail through the BG number, also what would happen if you lost the BG but had a scanned or photo copy would they still refuse because it was not the original ?, maybe someone can answer that one.

Adaurable,

Very pleased for you.

Can you provide contact details of the name of the person you and your solicitor dealt with at the CAM bank please.

Everyone I have spoken to there, including Sven, has no knowledge of anyone having BGs honoured yet.

Thank you,

Jeff

Sorry I haven't got any names for you - not that not having a name should matter however you can contact the lawyers I used to see if they can act for you.   But if you did not try to rescind your contract before the 14th day after the 18 months of the building license being issued I don't think you can get your money back under the BG UNTIL the developer breaks the contract by failing to complete it or going bankrupt.  However I feel enough time has passed on the phase 1 purchases for legal action to be started without the fear of a Judge throwing out your case - if you've bought on the later phase then I don't know what you'll do.

Sorry I can't be of more help apart from saying call Lawyers of Spain and ask for Roberto Leiro.

You should be a lawyer Adaurable!