Dona Julia El Patio Completion Date

I am sooo sorry to hear you've had another upsetting communication from LOS. How do these people still have any customers at all?

My advice would be to send the email to Maria from Costa Luz Lawyers - on  this site - and let her give you her opinion on your situation. And if LOS want paying to do anything to help you then I'd recommend paying Maria instead. We have changed to her and are currently trying to get our deposit back through the courts. We may not win but at least she's pleasant, professional and sympathetic.

I can't believe that two years further on everyone has conflicting takes on what is happening to El Patio - you only have to look at previous posts to see no-one knows whats going on. Instead of being a dream home it's become a nightmare.

Dear Suzie, thanks for your message, it is such a stressful time. I wonder if you have a direct email address for Maria as I am keen to contact her asap.

Many thanks

Hi there,

Maria's email is marialuisa@costaluzlawyers.es

Or you can click on the link to Costa Luz Lawyers on the left hand side of the page.

Let me know how you get on :-)

many thanks! i'll stay in touch

Dear Peev,

If you read our letter you will see that you have the opportunity of joining the case without using a lawyer. Unfortunately we cannot always give you the good news, especially where you are reluctant to complete at all cost and unfortunately too, developers also have lawyers and, at times, the law on their side.

I appreciate it is very stressful for you but we need to see these cases without resorting to emotions. prejudices and preconceptions such us the ones prevailing in this website: developers are all crooks, agents are pretty much the same, consumers are innocent and deserve full protection from Courts etc.

Right from the start we have resisted to encourage you to go to Court because we cannot see enough merits to win in the case.

Through the mechanism of this legal-gossip forum you will be dragged down to Court where you stand to pay, if you lose, tens of thousands of Euros in fees, costs and interests (with the obligation to complete being intact) because the administrators of a developer under voluntary receivership will not be compassionate.

I suggest you obtain an independent opinion from an independent source.

How can I not get emotional when i stand to lose my home in the UK? Myself and my children will be homeless! The apartments are not what we were promised, one would have hoped that over 4 years after putting the deposit down the development would be completed to the standard we were led to expect and if not that we had a contract that protected us. No one ever told us that the apartments were considered finished once the licenses were granted and nowhere in the contract can i see this written. The contract says that when the apartments are finished we will receive written notification and be given a date for the hand over of the keys. We have never received this notification with a deadline to complete which is why we assumed the developer is in breach of contract.

The apartments are not worth anywhere near the contract price because of this we can not get a mortgage to complete and from what i have read in this forumn others are also in this position. Will the courts in Spain decide to come after all of us and take all of our homes? Surely it would be enough to keep our huge deposit of 50,000 UK pounds and they still have the flat to sell to someone else? One of your lawyers told me this would be the most likely scenario if we could not get a mortgage to complete, it now seems this advice was rubbish judging by the most recent communication we have received.

Pardon me for being emotional but this is an utter nightmare and the worry and stress is making me ill.

Well said, Peev.

I would also like to point out to Mr Flores that we, the people on this forum, do not have the misconception that all developers and agents are crooked - some, maybe, but all - no.

However, as you point out, the developers have lawyers too. And these lawyers, quite rightly, look after the best interests of the developer. This is the reason we,  the customer, employ our own lawyers, to check the contracts provided by the developers to make sure that there are no unreasonable clauses. Here's an example of such a clause.  'The developer can have 6 months grace to complete the building after the completion date with NO penalties' - oh, wait, did I say 6 months, no, lets hide another 12 months after that in the contract so they get 18 months should we? Hell, why did they even bother stipulating a completion date at all???? Why was this not picked up by our lawyers? Why was this not explained to us? Would anyone have signed if they knew this could go on indefinately?  And the bank guarantee - what use is it if it runs out on the completion date but the developer doesn't have to adhere to the completion date?  Surely that's when we are going to need it most.

Now you could argue that it is the customers job to check this too, but legal jargon is not always obvious to the lay-person - if it was then we could dispense with the lawyers, save the money, and do the job ourselves. Instead, we put our trust in our lawyers to protect us from problems such as this. I have spent some time trying to figure how our lawyers thought this clause was in our best interest - if anyone can enlighten me on this I would be interested in their opinion. 

I'm sure the developer never intended to run into financial difficulty. I'm sure the agent didn't know the housing market would crash and maybe all contracts in Spain are loaded for the developer. But here we are, standing to lose everything. Cut us a bit of slack Mr Flores.  Let us have a happy christmas. After all, if you're right, next year we'll all be homeless. 

Hello Suziew,

According to our records you received a full translation of the original contract on June 19th, 2006. Back then you did not express any dissappointment, quite on the contrary you expressed your thanks for the work done. It is only when the market collapsed that you started looking for a getaway clause and when we told you we could not find any you started looking for culprits, all of which I have to say is wrong. So if you wish to vent your anger in this forum and take it out on us so be it, but again, you are wrong.

We all received a translation of the contract but as Suzie points out we rely on our lawyers to unpick the clauses and explain these to us and we certainly should have been told about the amount of time the developer actually had to complete (or not complete) the properties and that once the licenses were granted the flats were considered complete whether or not they actually were and that at that point the bank guaratee became useless.

Susie may well have thanked you in the past for your work but I am sure it was before she realised our lawyers had let us sign a joke of a contract!

Can you please tell me why I was told on several occasions by lawyers at your firm that the developers were unlikely to come after our UK assets and that the best option for them would be to keep the deposit and retain the flat to sell on? I can send copies of the emails where this is stated if you wish.

By the way, I would be declared bankrupt if I was made to pay the balance on the flat and the developers would get nothing as my house would be sold to pay off my UK mortgage and there is virtually no equity left so the best option for them is to keep my money and the flat and not waste their time and money pursuing me. Perhaps you can advise the developer of this, you do repersent us after all.

Apparently Spanish law states that you are not obliged to complete if you cannot afford it / get a mortgage

I'm not allowed top post link to discussion on this, but Go to general spain forum / buying property and read discussion on 'implications for not completing'

http://www.eyeonspain.com/forums/posts-long-9283.aspx

Hello,

Does anyone know if anything is happening? LOS have want more money from to continue representing us. We have not refused to pay the money but have requested from them confirmation of what exactly they will do for this money before we transfer further funds. They seem reluctant to do this, apparently we should just trust them as they are our lawyers!! How rediculous to expect us to pay money when we don't know what we are getting for it. Has anyone else paid LOS more money for their continuing representation?

Hi Peev,

I paid them to lodge with the court that we were a creditor and should get our deposit back as the developer is now in receivership. Doubt we'll get anything. Also there are some people taking them to court for selling on the apartments we were contracted to purchase as you probably know.

hi there

just to advise the court have decided all my monies should be returned including interest. This based on the time vthat lapsed between signing the contract and the licence for habitation being obtained. i was one of the first to buy having signed i think in dec 2005.

unfortunately its not all good news as the insurance company who i served the court proceedings on[ as proprieters of the bank guarantee] have now appealed!

the action i served upon them was in sept 2008, and it looks as though the appeal proceedure will take several months/years yet!

Its good news (and bad) about the courts decision Marcus. We're waiting for a court date as we have also tried to claim against the bank guarantee. Did it really take two years for you to get a date? And it'll probably take another two years for the appeal. Crazy!!!!!

 The whole thing is a nightmare, you cant trust anyone !

This message was last edited by Jeanmx on 08/06/2010.

 Hi all,

We are in exactly the same situation in Marcus, we won our court case back in November, but like Marcus, the insurance company has appealed the decision - our lawyer thinks it is purely to bide time.  We have been waiting for news of when the appeal hearing will be but still no date.  Will keep you posted. Fx

I have been informed by my lawyers that the contracts for El Patio have been deemed broken by the developer as they have sold on the full complex to a Bank. Therefore, our deposits are now owed to us by the developer and will be part of the creditor considerations by the receiver. Has anyone else confirmed this position?

Hi Paddy22, May I ask what lawyers you are using? We are with Lawyers of Spain but have always been told that the bank guarantee can not be used  because the developer got the habitation licenses on time!?

Has anyone completed on the flats?

Hi Paddy22, Last Dec we received the letter below from LOS. It says that though we can list ourselves as a creditor the court may decide that because we have not completed we are in breach of contract and therefore must pay the amount owing on the flat. If we don't our assets in the UK copuld be at risk etc etc. Did you also receive this? After seeing your message I have asked LOS if the situation has now changed i.e. the court has ruled that the developer is in breach of contract but LOS will not confirm this or give us any details until we pay more fees. I would appreciate any further details you may have.

Best

Dear client,

We are writing to you in order to let you know our thoughts about the new scenario opened with regards to your purchase in El Patio de Doña Julia, following an application for voluntary judicial receivership filed by the developers Evemarina.

As we have informed you time ago, on your instructions we have tried to get the contract cancelled and recover your money either from the developers or the insurance company that issued the guarantee, on the grounds that the developers had not delivered the property on time. They both refused arguing that there is a clause in the contract that expressly rules out the possibility of cancelling the contract due to delays during the first year. We refuted that argument saying that said clause is null and void as it goes against Consumer Protection Law, but they did not change their position and they even summoned you to complete the purchase last June.

So we currently are at a stalemate which can only be resolved by a judge. We have also advised you that it was not recommendable to take the case to the courts because your chances were low, considering that it is very unlikely that a judge declares the clause null and void, and specially taking into account that the property is already finished.

We now have to add to all this the current situation with the developer, which has applied for voluntary receivership but losing the right to run the company in favour of Court appointed administrators. The fact that there is now a judge supervising all movements related to the developers’ assets, makes cancellation of the contract even more difficult.

As the developers have already been put under judicial receivership the administrators are requiring any individual or company, with a credit against the developer, to identify and prove the sum owed and inviting them to notify the Court. This is necessary in order to establish the extent of the company liabilities and decide how these debts will be repaid. This information must be submitted at the Courts before December 17^th.

Considering that the contract between you and the developers is still in force (as they have not accepted our cancellation), and due to the fact that the property is finished, instead of you having a credit against them, what you have is a debit as you must pay the balance of the  agreed price. And the administrator will probably summon you to complete the purchase. If you refused, the administrators could chase your assets worldwide in order to take them into liquidation and get the money to pay the developers.

So, in principle, you would not have a right to inform the administrators any credit against the developers.

However, there is another clause in the contract which states that, during the first year of delay, you are entitled to a compensation of legal interest on the amounts already paid. This implies a credit in your favour which would have to be communicated to the administrators named by the judge.

Moreover, if you wish to assert your position that the contract is already cancelled due to the illegality of the clause that would go against the Consumer Protection Law (something   would have to be decided by the judge), then it would be recommendable that you notify your credit to the judge, namely the deposit already paid to the developers.

Then perhaps it would be good to communicate as credit in your favor the amounts paid so far to the company on the grounds that the contract is cancelled, and, in case this is not accepted by the administrators, you can subsidiary notify as a credit the compensation due to the delay.

Although the goal was not achieved, at least the communication could be useful as a pressure tool and to buy some time and try and get either a reduction of the price or compensation in the future.

The presentation at the Courts can be done you. You would have to go to Malaga Commercial Court before December 17^th with the original contract and proof of all the payments made to the developers, apart from a letter written in Spanish where you indicate the reasons of your claim. You will then be required, if you wish to be updated on the case, to collect copies of the proceedings.

If you would like LoS dealing with the case our fees would be 1,000 € plus VAT at 16 %, including these fees an initial appeal in case the administrators did not accept your credit. This entails appealing the decision on grounds of the clause illegality, on the one side, and arguing that you are entitled to compensation according to the other clause. If despite the appeal their position did not change, then we would have to study the viability and convenience of making a new appeal to the second instance, in which case you would need to be assisted by a barrister and represented by a Court Agent, who would charge you separately.

Finally, if your intention is to complete the purchase and relinquish compensation you have according to the contract, then it is not necessary to make the presentation to the Courts.

We look forward to knowing your decision as soon as possible as the deadline is approaching.

Please let me inform you that  I will be on holidays from Monday the 7^th till Wednesday the 16^th December. Considering this, I would be most grateful if you could please address any future communications till I am back to Mr. Flores (aflores@lawyersofspain.com) or Ms. Bermudez (isabel@lawyersofspain.com ) .

Should you have any questions, please do not hesitate to contact us.

Regards,

Javier Arboledas
Abogado / Senior Lawyer