Justice issues

This is a bit last minute but for thoses interested in justice issues Marta Andreasen will give an interview to Talk radio Europe (www.talkradioeurope.com/)  today at 11.15 continental time.

Hi All have just posted and e-mailed this to my MEPs thought it may be good for some of you to do the same

To --------

We are writing to you again to try and gain your help, we realise you are be busy but you are the only person who can bring us and many others justice. We paid nearly £--,000 in 2002 as a deposit for our "off plan" dream apartment, up to today we have had had nothing !. We have been trying since 2005 to get our deposit back with no luck, but now due to the time scale the biulder gone bankrupt

This connot be right and regarding Spanish law is not right, but the Spanish government do not care. Surely our government must care, and can do something to help, there are many ways financial pressure could could be put on the Spanish government to up hold their laws.
I will insert the relevant law below for you to read if you get a few minutes.
Hoping you can help.

What the Law Says

Law 57/1968 rules the protection of stage payments in off-plan properties. This very short law of only seven articles was enacted to secure the stage payments of purchasers should for example a developer file for creditor protection or the build be cancelled for planning reasons and  thus not delivered in the stipulated deadline. bank guarantees are only applicable to off-plan properties, not to resales.

Brief Overview of Law 57/1968

1. Article 1 rules that developers will have to provide free of charge to the purchaser/s a bank guarantee or Insurance Policy (henceforth bank guarantee for either) to guarantee the refund of their stage payments plus 6% interest in the event of the developer becoming insolvent. The Building Act (Law 38/99) actually amends this percentage in its first additional disposition and it will be the legal interest set in the Budget Law published annually by Spain’s Law Gazette (Boletín Oficial del Estado). These legal interests are simple annual interests, not compounded. For 2008 the legal interest has been set at 5,50%. However if a developer expressly accepts the 6% interest set in Law 57/68 then said interest will overrule the legal interest (which currently is lower).
2. Article 2 makes it imperative to include a clause in the Private Purchase Contract (PPC) by which it is stipulated that all interim payments are guaranteed by means of bank guarantees. Section a) allows the purchaser to execute a  bank guarantee on the development not having even been started to be built after the delivery deadline is overdue, not being finished in time (*) or the developer failing to obtain the Licence of First Occupancy.(*) Almost all developments in Spain are delivered late so this remark by the law is advised to be taken with a pinch –or two- of salt in practice. Another fact worthy of highlight is that only because your PPC has a specific clause whereby it is mentioned you have a bank guarantee issued securing your funds this doesn’t mean you have one. You have to be thorough and crosscheck with your lawyer you do in fact have bank guarantees issued under your name securing all your deposits including the initial reservation fee.
3. Article 3 stipulates that if the deadline is surpassed without the development being finished or even started the purchaser may execute their bank guarantee or else grant expressly the developer with an extension of the delivery date with an addendum to the PPC.
4. In compliance with article 4, these guarantees will be cancelled upon the granting by the Town Hall of the First Occupation Licence. At completion the lawyer appointed by the purchaser will hand over these guarantees to the developer’s legal representative.
5. Article 7 stipulates the Consumer’s Rights set forth in this law cannot be waived by the purchasing party even if they agree to it. These purchaser’s rights cannot be renounced under any circumstance.

Suggest you take a look at the thread entitled rough justice yet again within chit chat as there are many posting about justice issues on there.

Justin promised to provide a separate section on Justice issues but no sign as yet.

http://www.eyeonspain.com/blogs/costaluz/3569/legal-tip-277-low-cost-action-against-banks-manifesto-by-costaluzlawyers.aspx

Legal tip 277. Low cost action against Banks. Manifesto by Costaluzlawyers 
22 May 2010 @ 08:46 

Maria L. de Castro 

To Maria who has kindly posted the following update on another thread I have some outstanding questions (see below).

“I cannot help to keep  thinking and thinking  that this is the solution:

 Because we see this is what is needed in the most of the cases were people bought off plan and did not receive a Bank Guarantee,

Because claimers are frustrated and tired of waiting for years for a Court decision to be honoured and this do not happen due to the financial status of developers,

Because it is a great tool to try to put some correction to the financial system in off plan purchases for the protection of buyers so we can be sure these current problems will not happen again in our country,

Because we need to show to foreigners that Spain has a strong and coherent legal system,

Because we can offer low cost action to groups of people under the rules of our professional ethical code,

Because Banks have been the necessary element without which the current off-plan disaster in Spain would have never happened,

Because Law 57/68 makes them clearly liable for the lack of Bank Guarantees,

Because we have been studying this action for months with the help of a first class Law Professor who is available to answer questions in Court regarding the report he produced for us,

Because is necessary, because you need it mainly

We are offering to all the EOS members the possibility of joining existing actions against Banks under provision 1.2 of Law 57/68 at a much reduced cost.

Main ground of Law 57/68 is the protection of money advanced by individuals before construction work begins or during it, in many cases the savings of a lifetime.

The actual preamble or “exposición de motives” of the said Law establishes that all the "abuses in this type of businesses have made as necessary the establishment of general preventive rules which will guarantee both the real and effective application of money advanced by purchasers and prospective customers to the building of the house and to the refund in the event that the building does not take effect".

The most preventive, general, inalienable obligation that this Law established was for banks or savings banks, where money was paid to by buyers, to secure the establishment of Bank Guarantees or insurance UNDER THEIR LIABILITY. Banks were therefore here established as guardians of legality. 

Please contact us here: web@costaluzlawyers.es if you want further information about this.

Have a great week,

Maria L. de Castro 

The questions are as follows, Maria:

Does this action against the Bank depend upon the client having already won their case for breach of contract against the developer and/or developer appeal where applicable?

Will the Banks just shift the responsibility to the developer where first instance judgements have been won against the developer?  Will this breach of contract case-win act against the interests of the client when taking action of this nature against the Bank?

Will cases be handled under the new more efficient legal procedure as highlighted under the thread "Problems with developers" where you identified that for those with cases entered into courts after  4^th May 2010 the following applies

The new  reform and the new Judicial office seem to be walking towards greatest efficiency. The fact that claims under 250.000 € can now be decided through the monitorio system is a step ahead.

The monitorio system is a shorter judicial procedure for claims.

Please have answers to your questions below in bold purple:

The questions are as follows, Maria:

Does this action against the Bank depend upon the client having already won their case for breach of contract against the developer and/or developer appeal where applicable? No, it does not.

Will the Banks just shift the responsibility to the developer where first instance judgements have been won against the developer? They are two different kind of liabilities so they cannot shift this liability to the developer.  Will this breach of contract case-win act against the interests of the client when taking action of this nature against the Bank? No, it will act in favour of the claimer  as the damage arising from lack of bank Guarantee would have even a judicial statment to be used when being showed.

Will cases be handled under the new more efficient legal procedure as highlighted under the thread "Problems with developers" where you identified that for those with cases entered into courts after  4^th May 2010 the following applies

The new  reform and the new Judicial office seem to be walking towards greatest efficiency. The fact that claims under 250.000 € can now be decided through the monitorio system is a step ahead.

Yes, they will. Every claim under 250.000 € needs to be handled now through the monitorio procedure.

Many thanks for the clarification Maria. It really is appreciated.

It is a honour

Maria

Maria,

What would happen in the case that a Bank that you are taking action against for non provision of Bank Guarantee gets into financial trouble (for example one of the failing Cajas) part way through the legal claim against them? Would we finish up in the same scenario as the case against the developers where your chances for recovery of monies are compromised? Are there any financial procedures in place to ensure that this would not happen and that those that have rights for compensation would have their monies protected in some way?

As there is no legal precedence set as yet for a successful outcome against the Banks, it's yet another scenario that those looking towards group action would have to bear in mind.

Well, Banks are beintg backed by the national and european finantial system for the stability of the country... I would see that as a remote possibility.

Thanks Maria.

Oh a few more questions for Maria (sorry )

What sort of timescale do you put to this form of group action against the Banks, are we talking years here? Will there be individual group actions against a specific bank and will they, like developers, use the appeal process to elongate the process for their own ends, or does this new moritorio legal process have timescale limits attached?

Also, would your legal firm taking group action against the Bank have to contend with a significant delay before it would be in your interests to  legally proceed with the case? I'm thinking of the instance where many clients might be stuck in the existing legal system awaiting judgements, whereas those that are ready to proceed right now (with presumably cancelled contracts) may be compromised waiting for others to achieve their successful judgements. Perhaps you can enlighten us on how the process of group action will work.

To all,

I noticed on another forum (property Insight) the following post today:

so I wondered if Suzanne wanted to comment or provide an update on this?

To Keith,

Have you made recent contact with Marta Andreasen or any of the coalition government members regarding your petition? If so what reaction did you get? Or do you consider this a wasted exercise?

To Ruth and all,

Should we not all take issue with the EU Commission's comments to Ruth's petition which stated: 

“Under the Treaty establishing the European Community and the Treaty on European Union, the Commission does not have any general powers to intervene in individual cases relating to problems of general administration of justice, inefficiency of the judicial system and particular issues such as described in the petition, unless there is a link to Community law.

As Community law stands at present, there is no EC legislation regulating the legal requirements relating to the granting of licences to build or the respective remedies against national authorities in case of misuse of public powers. Nor is there Community law concerning the purchase of private property, different from time-share (Directive 94//47/EC),

the recovery of bank deposits, the remedies against building contractors in breach of contract, or the length of national court proceedings. Such issues are regulated by national law.

 Conclusion

In the absence of an infringement of EC law, the European Commission has no competence to intervene. The petitioner should continue to seek redress through the competent judicial authorities in Spain invoking the non respect of Article 6 of the ECHR. “

 Surely here the key wording is competent judicial authorities.

Well I would like to ask, what action can the EU take if a member state’s judicial authorities are proven to be incompetent?

As things stand now the Spanish justice system is compromising thousands of British EU citizens by their failure to provide any form of timescale constraints on legal processes, and they are therefore failing in their duty to ensure that the laws of the land are being correctly administered.

Could this be brought to the attention of our new leaders and EU MEPs while we await any Spanish internal reform, as the timescales to Spain's self correction may well prove too late for many caught up in this scenario? We should be pushing for a compensation fund to be made available until such time as these abuses are addressed by the Spanish government and legal fraternity.

Hi Ads, Ruth & All

The full response to Ruth & Suzanne's petitions can be seen in the following link at Number 12:

http://www.europarl.europa.eu/meetdocs/2009_2014/organes/peti/peti_20100223_0900.htm

My comments on the EU response, which I emailed to Ruth back in August are as follows:


I notice on Petition 0042/2009 Yvonne Hewitt, they state that "a number of new petitions are being received on this subject"

and they say:

"request information from the European Commission concerning obligations of banking institutions and the provisions of consumer safeguards"

Strangely on Suzanne's petition response they seem to ignore the matter of the illegal builds and only focus their reply on the Bank Guarantee issue. They then direct her back to the Banco de Espana website.

But they state:

"EC legislation does not CURRENTLY include provision concerning guarantees which are paid to banks in relation to an acquisition of immovable property...Member states are free to introduce legislation to govern this"

That is the whole point - the member state, in this case, SPAIN, did introduce legislation in 1968 but has chosen to allow Banks & developers to ignore it.

Following Spain's example of complete contempt and ignorance of their own regulations it is now imperative that the EC immediately bring in legislation to cover this issue.

If the member state is not capable of upholding its own Laws then the EC must immediately step in.

In the response to Ruth's petition they state: "...the Commission does not have any general powers to intervene in INDIVIDUAL cases..."

So, my question is - do they have power to intervene on GROUP CASES?

They also say:  "...Such issues are regulated by national law"

Well we can tell them categorically that in Spain these issues are not regulated by national law. The law is there but nobody give a damn about it.

Their conclusion states: "...continue to seek redress through the COMPETENT judicial authorities in Spain..."

I am sorry but in relation to LEY 57/68 the judicial authorities have proved on many occasions they are NOT competent.

Article 6 of ECHR - EUROPEAN CONVENTION ON HUMAN RIGHTS:

Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in 5 European Convention on Human Rights detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of wit-nesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

They do not mention it but Article 13 is also interesting:

Article 13 - Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

And I have been reading further. In the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms:

Article 1 - Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Look at what it says: "No one shall be deprived of his possessions except in the public interest"

My response to the EU Commissioner:

"Mr Commissioner thousands of innocent purchasers in Spain have been unlawfully deprived of their posessions - in this case - large amounts of money.  If the Spanish Government argues that they were deprived in the 'public interest', then the nation of Spain, it's Monarchy and its Government are also complicit in the crimes committed by its real estate and financial sectors"



Kind regards

Keith

Thanks Keith.

Can someone remind me where the Auken report is up to since the European Parliament approved it. Has it hit procedural delays?

To me this is a critical point relating to the Auken report and as such we should be pushing for action to be followed through:

Taken from the blog http://corruptioninspain.blogspot.com/2009/12/spanish-property-scandal.html

"The report is highly critical of Spain, and suggests withholding a sum of money from Spain’s EU grants (billions of euros), until such time as the problems are solved. A vote for this action was due to be held in the EU Parliament on 26th October, however the amendment was never voted on due to some obscure technicality which only applies to budget-votes. The technicality is that you cannot have a vote where you increase the budget line. This amendment did not increase the budget, it only stated that the money for that part of Spain should be frozen as agreed by Parliament in the Auken-report, so it would seem that the decision to disallow a vote may have been politically motivated. The Green MEP Margrete Auken has apparently submitted a complaint, but unfortunately the vote is now closed and the chances of retabling the amendment in December to the vote on the actual budget are slim. However, it may be that this issue can be re-opened as part of the budget discussions required by the Lisbon Treaty. "

So I have put this to Mr David Lidington Minister for Europe on his blog http://blogs.fco.gov.uk/roller/lidington/entry/my_first_two_weeks_as#comment-form

 Perhaps others could do likewise and post their comments according to their own circumstance? We need to do all we can to lift the profile of these issues, so surely it's imperative that as many as possible make their comments known to the Minister of Europe.

Likewise those who support Keith's petition should confirm their support, as Keith has posted on Mr Lidington's blog also.

Please, as Ruth has suggested,  let's make our voices heard.

Here's some useful references:

To all those affected,

Collect all your information together (your contract, receipts for monies paid, to whom, etc)

Sign Keith and Suzanne's petitions. Stating your concerns

www.bankguaranteesinspain.com

www.spanishpropertyscandalpetition.co.uk

Add your specific comments to the Minister of Europe's blog.

http://blogs.fco.gov.uk/roller/lidington/entry/my_first_two_weeks_as#comment-form

Make noises in Europe and send your detailed complaints to

Marta Andreasen (marta.andreasen@europarl.europa.eu)

Margrete Auken (margrete.auken@europarl.europa.eu)

and your local MEP's.

Here’s an alphabetical  list of  MEPs:

http://www.europarl.europa.eu/members/archive/alphaOrder.do;jsessionid=E7FC93673D7D81586897C3434BAEBA97.node2

and a list of  MEP’s by region in the UK 

http://www.europarl.europa.eu/members/public/geoSearch/zoneList.do?country=GB&language=EN

and a list of MEP’s by surname (eg ANDREASEN) 

http://www.europarl.europa.eu/members/public/yourMep.do?language=EN

Here’s a list of Spanish MEP’s 

http://www.europarl.europa.eu/members/public/geoSearch/search.do?country=ES&language=EN

And a list of UK MP’s 

http://findyourmp.parliament.uk/

 Now you’ve no excuses!

 Make your voices heard.

Keith/Suzie/Ruth/Faro

Just thought I would forward on a posting from another thread, relating to a different approach. An approach that presumably falls within the EU jurisdiction.

Do you think we could establish a request for an EU-wide directive to tackle the non application of justice and absence of adequate compensation, and formulate the wording in such a way as to fall within the EU jurisdiction?

_______________________________________________________________________________

Jek,

Thank you for your informative posting. Most important appears to be the following

"So the right approach is to cite the absence of a judicial solution to the illegal activity of certain town halls and the absence of adequate compensation for the innocent victims. You should be asking for an EU-wide directive to provide for speedy and adequate compensation for victims of real estate fraud in all member states. That puts it in EU jurisdiction.  "

_______________________________________________________________________________

Hi ads,

I don't know why, but, it would appear to me, that no one is even considering this "approach", and yet I thought, "we" would need to use every conceivable route to reach our goal.

I have no knowledge of  E.U. Jurisdiction etc. etc. but, if it is not worth pursuing, you would think that those amongst us, with this knowledge would at least tell us, rather than leaving things up in the air, unfinished.

It would be a shame if we all stopped helping each other ! !