La Tercia Real Deposit Refund - Don't Give In!

A week or so ago, Maria de Castro and her firm Costa Luz Lawyers, successfully won our case to get our deposit back from Spanish developer Peinsa and Banco Popular after a failed La Tercia Real purchase executing an "expired" bank guarantee.  Please read the testimonial we provided for Maria and her firm and let it serve as a fillip to everyone who is going through trauma and stress trying to get back what is rightfully theirs.  Don't give in and again thanks Maria!

Can I say a tremendous thanks to Maria and all of her team (especially Steven) at Costa Luz Lawyers for their services in getting our money back from a developer\bank after a failed Spanish property purchase.  After putting a deposit down for an off-plan villa in 2006, the development initially ran beyond its expected completion date of Sept 2007 and then in Oct 2008, the pulling out of bank funding meant that the developer decided to stop developing all together leaving our money trapped.  They never actually informed us of this...we only found out through our agent!
 
Looking to secure our money in case the developer went into administration (as was feared at the time), we were advised by our agent to transfer our deposit into a key-ready property as we had an "expired" bank guarantee.  This ultimately fell-through as the developer couldn't complete citing it was unable to lift the mortgage already on the property (did they not know this when we started the process for the new property?!).  Now at our wits end, we sought litigation advice.  Our initial lawyer informed us that our original purchasing contract was now null and void as our purchasing lawyer had signed papers for the new property which had fallen through (without our clear consent). She also stated that this had also in-validated our bank guarantee so that wasn't worth the paper it was written on either!  Our only option, that lawyer stated, was to sue the developer who we knew had no money anyway...so what point would that be?!  Bearing in mind that was just before Christmas 2008, that was probably the most stressful festive period we've ever had.
 
Not content with this, further researching our options, we came across comments from Maria at Costa Luz Lawyers advising people on website Eye On Spain.  Straightaway, I liked the way she came across online, going out of her way to advise people on their situations and about Spain in general.  We passed our details to her, no holes barred, and were absolutely delighted when she came back stating that our bank guarantee was valid, the expiration date on it didn't matter and ultimately that she was very confident she could get us all of our deposit back! As I didn't trust our previous lawyer to get the originals of our legal documents to Maria, we took the opportunity to collect and deliver these ourselves to Maria in the Costa Luz Lawyers offices in Algeciras.  Meeting Maria and her team in person was a very uplifting experience that really put us at ease.  It left us with a feeling full of trust that we were putting the chasing of our savings into the hands of someone who knew her stuff, yet was charming with it and a team who you could tell really cared about what they were doing.  The confidence that had been destroyed by our previous lawyer had now been rebuilt.
 
On returning to England, we were (as promised) e-mailed comprehensive documents outlining the processes that were possibly going to unfold to retrieve our money.  Any extra questions\concerns we did have were always answered in a timely fashion and a friendly manner by either Maria or Steven, helping us to further understand the process as well as keep our spirits up when things seemed to go quiet.  9 months on from our first meeting with Costa Luz Lawyers, our deposit has been fully refunded and an additional claim for interest\costs is in the process of being sorted out.
 
We are delighted with the service provided by Costa Luz Lawyers, in particular from Maria and Steven (who we mostly dealt with) due to their timely and personable answers to any queries we have had during the whole thing.  I would not hesitate to recommend Costa Luz Lawyers to anyone who finds themselves with a legal issue in Spain...indeed I have already done so on a couple of Spanish internet forums.  Many thanks Maria and all of the team!

Brian and Louise

Hi Brian & Louise

It is fantastic that you won your case against Peinsa and Banco Popular.  Maria seems to be an expert in these matters.  Many developers and banks think they can get away with blatantly breaking Spanish Law when selling off plan property.  This corruption must be stopped and Maria and her team are doing everything they can to put an end to this corruption that is happening all over Spain.

Your case highlights a very important point.

You say:
Looking to secure our money in case the developer went into administration (as was feared at the time), we were advised by our agent to transfer our deposit into a key-ready property as we had an "expired" bank guarantee.

Of course it was in the agents interest to advise you to transfer to a key ready property and have you living on a half finished development because they would still receive their commission on the sale.  But if you executed your Bank Guarantee they would not receive their commission.  So was the agent just telling you that your Bank Guarantee was expired or had the Bank illegally put an expiry date on the document?

According to LEY 57/68 a Bank Guarantee for an off plan deposit must not have an expiry date.

The Bank Guarantee or Insurance Document expires ONLY when the Certificate of Occupancy / Certificate of Habitation / Licence of First Occupation (Cedula de Habitabilidad) is issued.

See below the relevant extract from LEY 57/68:

Article Four – 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.

Articulo cuarto – Expedida la cedula de habitabilidad por la Delegacion Provincial del Ministerio de la Vivienda y acreditada por el promotor la entrega de la vivienda al comprador se canceleran las garantias otorgadas por la Entidad aseguradora o avalista.

Once again, fantastic that you have won the case.  Lets hope you are successful in getting Banco Popular to pay the interest and costs.  Again, according to LEY 57/68 the bank is liable to pay 'Legal Interest' from the date you paid your deposit and not only from the date they issued the Bank Guarantee, which may have been sometime later.

Kind regards

Keith

count yourselves lucky la tercia is a ghost town with real life tumbleweeds. little or no amenties,nothing for famlies, not close to beach and isolated from more or less everything

Yes, we rented at United Golf for a year.  Sick to death of travelling down the orange groves and the 3319 to get to anything, and if we forgot some shopping another 20 mins ride each way to pick up what we had forgot.  We couldn't have a night out without one of us not being able to have a drink because we had to drive home.   We had a lucky, although expensive escape there, and the community fees would have been a fortune if UGR is anything to go by. 

the saying location,location, location is very true. la tercia not being built is a blessing in disguise

Hi there, I heard about this site through a friend and from reading some of your blogs this may be of assistance to me,  I put almost £30,000 on an off plan property in La Tercia, United Golf through MRI Properties, abouth 3 years ago and just last year I went to Murcia to see how the property was going only to find that MRI no longer exist, I made an appointment to see the solicitor Roberto Sanchez only to find that he wasn't available to speak to me but I did speak to one of the office staff who advised that I could go to United Golf to see the property.

On visiting the property I found that this was nothing like what we were advised it would be like i.e. no roof terrace, the balcony was minute and the property layout was nothing like the plan I was given,  I spoke to Nigel from United Golf and advised that this was not the property I viewed when they held there marketing campaign, he advised to speak to my solicitor, again I tried this on numerous occassions, after a few months he got back to me via e-mail with a disclosure cancelling my contract, at the bottom of this it did advise that the deposit would not be refunded, I questioned this and again he did get back to me informing that he was in discussions with United Golf...this was 12 months ago and again after numerous e-mails to Roberto Sanchez and copied to Nigel at United Golf I have still not heard anything regarding this.

I feel that my complaint had just fell on death ears and am baffled at my way forward...i any.  Would anyone know of any routes that I could take....I would be soo grateful

Thank you

Hi Lee Ann,

You have posted on the wrong forum, this is the forum for La Tercia Real, the site opposite United Golf Resorts, which was never built.  There is a forum for that site on Eye on Spain but reading your posting I would change your solicitor if I was you. 

 I am Carlos Maceda de Olives, Spanish lawyer, of the Bar Association of the Balearic Islands, and I am pleased to report (the understanding that can be of your interest) I have had involvement in recovery action against the Banco Popular successfully. I chose not to claim against Proyectos y Desarrollos Urfesan, Peinsa because there was no guarantee of solvency. We claim on the bank guarantee amounting to EUR 75,788.10 EUR 14,924.02 principal and legal interest and we have been granted. It has already been paid and delivered to our customers. At first the judge refused to grant the approval because it expired the guarantee and we were claiming more (78,788) of what appeared in the guarantee (75,788). After resorting, the High Court has given us the reason. Now I am aware of a new appeal because again the judge did not accept the difference of $ 3,000 for being an amount that was not in the guarantee. I understand that neither the term nor the amount of the guarantee higher can avoid the mandatory application of Spanish law, because is an internal agreement between the bank and the developer.

We are still trying to get money back from the La Tercia Real development from 2006. Having now lost patience with PSI we have instructed new lawyers. We dont have a bank guarantee, our lawyer said if we can find evidence of anyone else who had a bank guarantee this would help our case. Can anyone help us please?

Brian & Sue

Dear Brian and Sue

According to Spanish law (Law 57/68 on delivery sums advanced for house purchases) - mandatory law implies that clauses can not be agreed to change its content. The Bank has obligations not only when there is a guarantee. Also the law says that the Bank, under its responsibility, has to require the developer the repayment guarante of the amounts advanced by the buyers in order to allow the opening of the special account through which the developer is required to perceive them . " if the Bank has allowed the special account opening and through it the developer has entered the quantities delivered by you and if the bank has not required the developer the guarantee of returning them, if it happens and if the developer do not build the housing, the Bank should respond by not requiring warranty.

I am also pleased to inform you that the High Court has just accepted in the case that I have (which is with guarantee) that the Bank must also pay the amounts that were delivered and were not in the warranty.

I would encourage you to put in touch with me ( Telef. 0034 971 36 82 36 , email carlos at abogadosmaceda . com ) or you can send me your email