Good morning SMAcG, thanks fro your email.
This below is a text on an article describing the situation: this has been reported to the European Commission as we understand this Supreme Court interpretation violates EU Law. SC doctrine is subject to changes. It is necessary to keep presenting cases before them and the EU Commission.
The recent Supreme Court judgments that limit the banks' capacity for active surveillance and control to the compliance with unnoticed requirements by the buyer, and not covered by the law, represent a serious attack against the guarantees of Law 57/68.
Off-plan purchase and sale: a bank branch that receives numerous deliveries from third parties into an account opened by a prominent promoter in the area. By virtue of Law 57/68, which protects buyers of off-plan properties, and also by virtue of the anti-money laundering law, the bank is under a legal duty to control the origin and destination of these amounts.
According to original Supreme Court Docrine, this duty of vigilance begins as soon as "the bank knows or can know" or "notices the possibility" that off-plan deliveries are being made.
However, according to most recent the Supreme Court, in an unreasonable and interpretation contrary to the Law, with the mere deposit by a third party in the promoter's account, the bank is not in a position to "notice the possibility" that down payments are being made in off-plan purchases. To understand it this way would be to subject the bank to a responsibility "at all costs," in the opinion of the Supreme Court.
Only if in the promoter's account,(1) the buyer himself (be careful: never a third party acting on his behalf) (2) precisely reflects the concept of the deposit, will the bank then be able to open its understanding and its eyes, notice this possibility, and deploy its duty of active surveillance, as required by the protective Law 57/68.
The main problem is that the buyer was never warned of these formal requirements and trusted in the protection of their amounts from the moment they deposited sums into the promoter's account.
There are numerous Provincial Courts that think otherwise, but the Supreme Court insists on this protective vision of the banks and contrary to the spirit and letter of Law 57/68 and all its Case Law development in recent years. It empties the special obligation of active surveillance entrusted to the depositary entities, which are cornerstone of the Law 57/68 system, in one stroke.
In my opinion: a legal nonsense, a cape to the Banks, an attack against thousands of buyers, and a real pity: after the beautiful jurisprudential development of this figure of the depositary bank as the main custodian of Law 57/68.
It is a recent doctrine for these particular cases in which the deposit is made by a third party (agent or lawyer of the buyer) without specifying in detail the concept. It is a recent doctrine that also contradicts the general doctrine that the Supreme Court itself continues to maintain, in relation to this responsibility.
We are keeping the fight up. The matter is being reviewed by the European Commission.