anybody had a legal proceedings update?

Hi all,

has anybody had a decision from the courts/solicitor yet regarding cancelling there purchase?

I have paid costaluz to cancel my contract but i have not heard from them in 6 months! are they still working for corvera owners?

any genuine updates would be greatly appreciated.

thanks all

Fil 

Sounds like you might need another lawyer to get your money back from the lawayer you paid to get your money  back!

when i was onsite corvera were planning to meet irwin mitchell  foir the first time I believe..that seems to have taken a long time..we've all done our own deals in that time and furnished our apartments!

For all those still not happy with the current state of affairs

http://www.calidona.com/Item~x~Projects-focused-on-quality-of-life-in-sustainable-environments~Item~promocioninmobiliaria~lang~EN.html

Makes interesting reading, what is that about advertising being part of the contract?

Hello all. This may help people in the same situation as me. I have had some good news…!!!! My lawyer has had my contracts translated back to Spanish and has just received news from Murcia Town hall that declares that the building licence for MANZANA 33 and all Phase III in Corvera Golf & Country Club Has not been issued because it has not been paid for, and so there is no FIRST OCCUPATION LICENCE.

So he has told me I can execute my BANK GAURANTEE from Banco Popular & Caja Murcia through the courts of Murcia for my deposits back of more than eighty thousand euros. He said the time scale is that the banks have 30 days to place the money in the court and I could be successful within 90 days. I feel confident now in getting money back after this nightmare.

With so many cases going on the situation on the various phases can be confusing along the advice that some lawyers may be giving so I hope that this post may clarify things

For all properties that have been released and where people have completed which I believe are phases 1 & 2 the planning process was correct and the First Occupancy Licence have all been issued and services connected

For properties on later phases, which I believe includes phase 3, in some areas, they have issued the building licence, construction started and then stopped and the clock is ticking on the contract clause which requires that the properties should be finished 18 months, plus any resonable time for wether delays, after the issue of the building licence

The First Occupancy Licence, also known as The Certificate of Habitation can only be issued when the property is finished and checked by the building inspectors and things like water electricity and gas cannot be connected to a property without one

A property is only legally finished when this is issued

After this period if the developer dodes not refund then yes people can execute the Bank Guarntee and claim the deposits plus costs and interest

The problem is that when no building licence has been issues, as with the phase 3 build by the gates there is an argument that there are no grounds to execute the BG as the clause in the contract regarding the 18 month completion cannot be brought into play

I cannot quite understand the comment that the contract has been translated into Spanish

Normally the first step is to execute the BG with the bank directly, not through the courts,unless the bank refuse to pay out

The Contract i signed was in English…!! My Lawyer told me this is the first time he had seen this in a case in Spain….! Has anybody else signed in Spanish or English..?? My Lawyer is NOT the one first appointed to me. I would like to make that clear.

I have the certification from Murcia in which the Town Hall declares that the building licence for MANZANA 33 and al Phase III in Corvera has not been issued because has not been paid, and so there is not First Occupation Licence, I suppose an English Translator would have to translate it. But I can send it to anybody that wants to see it...?

With this document, and the BANK GUARANTEE I have been told by my lawyer we can execute immediately through a Court Case in Murcia Courts.

I am sorry but I still believe that you are confused over the process in Spain and you need to ask your lawyer a few questions before you pay him for a Court Action

The first query is I do not believe that the property on phase 3 has been finished, perhaps even started and you can only get a FOL on a COMPLETED property

In the contract typically there will be no actual completion date only a clause that states they the property must be completed 18 months after the granting of the buiding licence and legally it is only complete once the FOL is issued

If the building licence as you state has not been issued then there is no date by which the property has to be completed and therefore no ground to make a claim against the BG

The developer cannot start a build till they have a buiding licence

There were a number of Court cases brought against this and a number of other developers on what was known as an unfair contract clause, claiming that the 18 month term was unfair and these were thrown out by the Courts

Recently at another local development Tres Molinos the banks have started refunded against the BG on the basis that more than 18 months had passed since the granting of the construction licence and people have made claims against the banks directly by producing the building licence as proof

Ask the lawyer why they have to go to the Courts not the banks

Roy,

Reference to your last post. It would appear that what you are stating that the developer can sit on peoples hard earned cash for an eternity, so long as the building licence is not in place?

Dear Sir

 I am the Lawyer of Mrs. Dow, and I shall inform you about the legal situation of this client and others who have similar situations to this Phase 3 in Corvera Golf and Country Club.

 The contract that was issued by the developer had the "usual" tricky clause that says: "the property will be delivered after 18 months from the Building License" (in other contracts for other developer says 24 months from the "works have begun..." or something similar in order to give all chances to developer...)

 But the fact is that the CONSUMER LAW from 1984 says that when you sign a contract for delivery of property not build yet THE DEVELOPER HAS TO APPOINT A CERTAIN DATE FOR DELIVERY... , so ALL THESE CLAUSES IN THE DEVELOPERS CONTRACTS ARE COMPLETELY ABUSIVE... (AND ALL SPANISH LAWYERS HAVE BEEN SIGNING THEM FOR YEARS, INCLUDING ME), and this have been declared now ILLEGAL for most of the HIGH COURTS IN SPAIN, YOU CANNOT INTRODUCE A CLAUSE THAT GIVES NOT A PROPER DATE, AND EVEN LEFT THE COMPLETION ENTERELY IN DEVELOPER HANDS.

 ACCORDING THE LAW ALL THE ABUSIVE CLAUSES ARE NULL AND VOID... SO THE COURTS HAVE TO MAKE A REINTERPRETATION OF CONTRACT PRO-CONSUMER, AND THEY ARE DOING SO... ALLOWING TO EXECUTE BANK GUARANTEES IN THESE CASES.

 Corvera Phase 3 is a perfect example, the Town Hall in Murcia has confirmed (I have the certification from Town Hall) that the Developer have applied in 2008 for the BUILDING LICENSE for 89 apartments and houses in Manzana M-33, the Town Hall opened a building license file with number 9072/08-LE, BUT THE DEVELOPER DID NOT COMPLETE ALL THE PAPERWORK AND DID NOT PAY THE LEGAL TAXES, so the MURCIA TOWN HALL HAS CANCELLED THIS FILE... so this phase HAS NOT ANY BUILDING LICENSE, and who knows when will be reapplied and pay again... WHEN THIS APPARTMENT WILL BE FINISHED ? May be NEVER ¿?

 So what has a buyer to do there? To wait for the 18 months of a building license that never will come?, to wait all his life...?

 NO WAY, ACCORDING SPANISH LAW AND JURISPRUDENCE OF HIGH COURTS YOU CAN AND YOU MUST EXECUTE YOUR BANK GUARANTEES, and this is exactly what I am doing for my client in Corvera, and for many others in other regions of Spain.

 As you say the FIRST STEP is to proceed against the Banks, and to claim them to pay the Bank Guarantess, I have done so with Mrs. Dow, I have sent a legal communication (burofax) to Banco Popular and Caja Murcia, I have done this in July, and not answer yet from the Banks, unfortunately this is common in the present economic situation, EVEN BANKS ARE LOOKING AT THE OTHER SIDE AND TRYING NOT FULFILLI THEIR OBLIGATIONS.

  SO UNFORTUNATELY WE HAVE TO GO TO SECOND STEP, AND WE HAVE TO OPEN A SPECIAL COURT CASE CALLED IN SPANISH LAW: EXECUTIVE DEMAND AGAINST THE BANKS, TO EXECUTE THE BANK GUARANTEES.

 I have run during 2.008-2.010 around 20 executive cases against most of the main Spanish Banks, many of them are lookin for any given excuse for not paying, I can say that we have at present won all the cases except one that is in Murcia High Court pendent of final resolution.

 We have still a long way ahead in Spain to convince the public and even some Lawyers and Judges, that CONSUMERS has to be protected in Spain, and we have the Laws to do it, just the application of the Law has been really naive and only protecting one party, normally the stronger one: Developers.

 The huge importance of the Building Sector in Spain and the lack of control from the Spanish Public Authorities (who by the way were completely tax dependant on this sector) are the reasons of this "mess", and may be the good side of this crisis is that many hearts and eyes can be opened if Lawyers and Professional of Law are really committed to do so, so we have a far more better future with more control and justice.

 Thank you for your attention, and I am looking forward for any commets.

  Luis F Mendez Banderas

  Lawyer Malaga College number 6052

Thank you for the post which I know a number of people will find very useful but is the changes thay you are talking about regarding the completion dates new legislation because there have been a number of recent cases, for this and other developers in the area of Murcia,  where buyers have brought action against the developers, specifically on the basis that the clause is abusive that Courts in Murcia have found in favour of the developers for cases on Corvera and a number of Polaris World sites

I have some copies of these judgements if you would like to see them and as you say specifically in Murcia the courts seem to find in a different way and would ask if you have yet won a case inthis region because this will allow many unhappy buyers to re-cliam their deposits

If you are waint for a judgement when do you epcet to receive this and it it for a case that was previously rejected by the local Courts and that you have had to take to appeal

Unfortunatley the key words here are most of the High Courts as they seem to vary by region and I am not aware of any such ruling in Murcia

Dear Sir

 I have some sentences from Courts in Murcia Region against Banks in order they pay the Bank Guarantees, I am reluctant to go against Developers that normally have no assets and the litigation is only a very expensive way for a client to proceed, even if he wins.

 The Law is for all the same in Spain, and CONSUMER LAW IS FROM 1984 (nothing new...), the differences are coming normally from Judges at the first level, we call it PRIMERA INSTANCIA, here is typical you have completely different sentences for exactly the same cases... I have a few of these, and finally is the High Court who is resolving in a far more reasonable way.

 I would like to say that clients have to Appeal sentences from Judges at the First Level, I know there are many succesfull cases for clients who have Appeal.

 Anyway each case is different and any Lawyer will give his own approach. But I am sure things are not so negative in Murcia as you are saying.

 I tell you how things could happen: regardin the Court Case that I won against Bancaja (Polaris World property), the Judge gave me the execution of the Bank Guarantee, then Bancaja present oposition to this execution... and the Judge changed completely his initial line and gave the reason to Bancaja, so I have Appeal to High Court in Murcia and waiting a final resolution probably around April-May next year. I am waiting for the final hearing date. We will see...  

  My approach is simple if you have Bank Guarantees and your property has not been built or has not a First Ocupation License arranged at the proper time (according the contract, or according common sense:2-3 years). You CAN execute your bank guarantee, probably the Bank will not pay, so you will have to begin legal executive action against the Bank, then you have many chances to have your money back.

 Luis F Mendez Banderas

 Lawyer Malaga College Number 6052

I am sorry to be so pedantoc about this but agian I am sure that if you have won cases in Murcia people on phase 3 will beat a path to your door so I ask have you won any cases against Corvera or Polaris World or any other developer, using the abusive contract clause where the banks have refunded the full deposit costs and interest

Have you in the Murcia region had any cases been ruiled on by the High Courts where they have ruled that the banks refund the mony iof yes can you eith PM or publish the case numbers so people can look at the rulings

 Dear Mr. Howitt

 I cannot send this private information through this channel, as you know any of this information is highly confidential, and Lawyers are ruled by a very rigid Privacy Law. I can send you to your private email a copy of Court Resolution against Polaris, but you cannot give any sort of publicity to it.

 I hope you understand, please send me in private your email, and I shall send you a copy.

 Thank you

 Luis F Mendez

Nice to know that even "all the Spanish solicitors" were willing to sign contracts in the interests of their clients, that they should have read and understood to be 'abusive'. My lawyer never pointed this out, did anybody else's?

Comes back again to 'who do you trust' when even the professionals miss or ignore these facts just to get the conveyancing on a sale. Mind you now there are far fewer sales going on they seem to have spotted the abusive clauses that they missed in the first place. Who do you trust?

Yes as I stated in the mail I am happy if you PM me or e-mail me this and I understand the rules but the only problem I have, if this is the only case that can be quoted is one that has not been won and has gone to appeal, which I believe will be a very expensive process for the client

The way this thread started was that there seemed to be a very easy and almost guarnteed way for people on phase 3 to get their money back by making a claim against the BG and that there was some proven success, in this area, and I am sure that you will agree that there is no guarantee of success on appeal as there is no previous judgement that can be verified

Can any other case perhaps be referenced in another High Court in Spain with similar grounds to those on Corvera and quoting the cancellation of the abusive clause

Isnt it perhaps also true that because there are so few property completions now that lawyers are looking for other sources of income, litigation pays well I believe

I am always surprised that if lawyers can be confident that they will win these cases on these ground that they are not willing to act on a no win no fee basis and that they always require a large payment upfront

 Dear Sir

 The case with Polaris that I have the Court Bank Execution was far more complicate than the one in Corvera (and we were able to obtain the Execution from the Judge), because Polaris has finished the property and obtained First Ocupation License meanwhile the Court case was happening..., now we are discussing at the High Court if the term of 18 months from the date of  Building License is abusive or not, when the property was delivered two years late as iniatially told  to the client..., 

  In Corvera the situation is far more simple, we have even not a building license, and probabley the works are not beginning in years, so the Bank Guarantees are exactly for that according Law 57/1968, to protect the buyers money and allow them to claim it back if property is not completed on time.

 I am handling now my First Case in Phase 3 in Corvera, with all the data I have obtained for this case and with the Certification from Town Hall that shows that this property is not going to be built probably in years, I am going to Court with everything in our favour, I think we have a 90% rate of success... that is the reason and in the case of Mrs. Dow I have reduced my legal fees to a minimun and arrange a  success fee.

 I can send you a few cases from High Courts, but they are all in Spanish... and very difficult to translate into English, give me your email and I shall post to you.

 Luis F Mendez

Mail details are info@inspectahomespain.com , translation no problem as I will ask another lawyer to look at this for another view

I actually disagree because I believe that you may find that the Corvera case is more complicated because Corvera have already been taken to Court and won some judgements against people that brought actions claiming that the clause was abusive

You possibly know that the properties that were bullt were actually delivered 3-4 years later than expected but were actually built eventually

I know that  the banks will do is reference these cases as legal case law in defence which will mean that buyers will face lengthy and expesive legal action

By the way I think that the way these people are being treated is unacceptable, that the law needs to be changed and some cases one so that people are treated fairly

Hi all,we got our deposit back and we where on phase 3,

Roy we all know you do a fantastic job,but why is this so important to you,let the people who have a problem with calidona seek their own justice how ever they like.

I am not saying that this parfticular lawyer has anything but good intent here but the thread started with the impression that there was a sure fire way to cancel the contract and this isn´t necessarly the case and all I wanted to do was avoid people paying more money to lawyer without first knowing the facts

If there is a lawyer out there that has suceeded in bringing a case, proven success, then people should use him and perhaps he should act on a now win no fee basis so sureky I am acting in the interests of the customer and there are lots of actions going on where we are waiting for the Court dates

There are,as I explained before, 2 different areas on phase 3, one on the hill where the construction has started and stopped, where the clock is ticking on the 18 months and I expect people will be able to exercise the BG based on the date on the licence and failure to deliver the properties

The other area by the gate is where no building licence has been issued, construction hasn´t started and probably the only way to get money back is legal action, which I believe includes Manzana 33

I am certain it would be interesting to people to explain where you were on phase 3 and the basis on which you got your money back, did you get a refund or swap to another property or resort

One fact remains, that by their own admission, it has been some lawyers that contributed towards the problems and will now benefit from the legal actions and I hope that this tyoe of ongoing debate allows people to make an informed decision