Norman,

As Roy says, 'Maria may be away at the moment', but I have noticed that she very often does not post on Fridays.

Perhaps it is her day off. She deserves one day off!

I have also noticed that she sometimes posts on Saturday and Sunday so you may be lucky this week, otherwise you will have to wait until Monday.

You could of course send her a private message via this forum but you will still probably have to wait until Monday for a response.

Regards,

Maria was around earlier in Maria de Castro in the Wall Street Journal but she seems to be a very busy lady.
 

 What is the question? Linking character of publicity/ offers/ qualities included in publicity? 

Sometimes, it is not that I am absent, it is that I prefer to listen and not to intervene.

Dear Techno,

thankyou for the clarification.

I of course admire your care and diligence.

I also have a sneaking admiration of your lack of trust in "professional experts".

Nevertheless it is farcical that such an army should be necessary to safely buy a simple house, ridiculous in fact.

We have been told before by experts on this forum that the Spanish do not do this and do not understand why we Brits employ lawyers to buy houses. They simply agree and pop down to the notarie's together.

You have disagreed before, I cannot recall the experts involved but Smiley may have been one of them? Justin should know.

It is of course quite insane that my lawyer should have signed a contract like yours for my proposed purchase unless Maria's earlier assertions are right and there is no need to change anything because all is automatically included without question. At Casares del Sol there are hundreds of purchasers so surely hundreds of lawyers must have believed likewise or were equally negligent.

You do not say whether your care was as a result of disatisfaction in your first purchase?

Experience is a great teacher.

Regards

Norman

This message was last edited by normansands on 18/12/2010.

My understanding is that any group action can only relate to communal facilities while any issues with an individual property is for action between Purchaser and Developer under their purchase contract. This requires 2 separate actions.

I think it would be worthwhile asking Maria if the marketing literature which you would have to produce as evidence as part of the case for breach of contract against the developer, automatically forms part of the contract according to Spanish Law, in which case you would not have required an extra clause written into the contract. Is that right Maria?

Also if the developer at Casares Del Sol has asset stripped, is close to insolvency, and there is little opportunity for ultimate return of monies via this legal route, then isn't a group claim relating to the Bank that took your deposited monies (but failed to provide a BG as per your contract, nor placed your depsited monies into a special account as per the law 57/68) the best way to ensure return of deposited monies (would costs/interest as per succesful judgements against the developer to date also be included in this legal route, Maria)?

This message was last edited by ads on 19/12/2010.

Ads: Yes to both questions below..

So there we have it.

Technoape,according to Maria, is incorrect to state that the sales/marketing literature does not form part of the contract on offplan property. It does. So the marketing literature that was provided at Casares Del Sol (or any development for that matter) does form part of the contract and no special clause(s) are required to qualify this.

Also, as I iunderstand it from Maria, those who have spent monies on legal action against the developer's breach of contract to date, and have successfully proved their case (albeit possibly awaiting developer appeal), should be able to regain their monies as per their successful legal judgement (which in some cases would have included costs and interest), via a group claim against the Bank who took their deposited monies. But there are qualifications to this see below.

Those who appear to be at risk when taking action against the developer are those who cannot bring sufficient evidence to support their case for breach of contract, whether this be lack of marketing literature, or lack of evidence to counter force majeure claims by the developer, evidence to support delays, abusive contract clauses etc. But surely this is always the case for any legal claim?

As I understand this, according to Maria, those who have trod the legal route against a developer who is now financially at risk, now have a potential alternative route for return of monies (including costs to date) via a claim against the Bank that took their deposited monies for the offplan purchase.

BUT, I would also query if those who have not taken action to date against the developer (presumably like Norman) might now need to prove breach of contract against the developer, before qualifying for a claim against the Bank?. Or, could they just take action against the Bank without this supportive evidence (since the deposited monies were never protected by a BG and special account as per the contract and law 57/68)?

As I understand it , where this becomes complicated however, is that the Bank has to be proved to have been aware from the outset that these monies were related to an offplan purchase. Is that correct Maria? So investigation/research has to be performed to identify

1) The Bank and account where monies were actually deposited (sometimes this is not a straight forward exercise).

2) The link between that Bank and the developer.

Both of these aspects would have to be investigated before a purchaser would know if they qualify to make a claim against the Bank.

Is this correct Maria, or are there more complications that the purchaser needs to be aware of before they commit to this legal route?

I hope this is helping, Norman, and not adding to your stress .........

Dear Ads,

thank you meticulously spelt out as always.

Thank you also for your concern, I am perhaps odd in not getting too stressed until the explosion or heart attack stage.

I consulted another disappointed purchaser last night who tells me that the few thousand I have saved is not enough even to join Maria's group scheme.

Perhaps she has out grown EOS, or Roy is correct and legal help is inordinantly expensive in Spain?

I was quite concerned at her reticence in joining the thread since I already had her views in archive form.

That purchaser also has connections with a wealthy individual, owner of a penthouse, something of a speculator, who purchased without survey and now has a damp and unusable shoe-box property on his hands. Which of course has zero value or less if you take into account community fee liability.

The community forum has complaints on it of the unpleasant appearance of the "stalag 17" security fences installed to make the best of things by the owners.

I believe that off-plan cotracts can and have worked in Spain and find it difficult to understand why such as Smiley and Bobaol would have used them if they did not.

I may have to abandon, squander the money on a Turkish holiday or take up Guslopez's suggestion buy a machine gun and hunt down the miscreants,it has quite a lot of thought appeal.

Regards

Norman

As I understand it , where this becomes complicated however, is that the Bank has to be proved to have been aware from the outset that these monies were related to an offplan purchase. Is that correct Maria? So investigation/research has to be performed to identify

1) The Bank and account where monies were actually deposited (sometimes this is not a straight forward exercise).

2) The link between that Bank and the developer.

Both of these aspects would have to be investigated before a purchaser would know if they qualify to make a claim against the Bank.

Hi Ads,

Regarding the above, I think you would need documentory evidence to prove your money was going to either :-   1) Your Agent ; or   2) Your Lawyer;  or  3) Your Developer; and finally to the Bank.

In my case I only have reciepts to prove paying my agent, then Bank transaction forms showing it being sent to my lawyer.  I know that the money was forwarded to my Developer because they have admitted owing me this amount of money in open court and did agree in writing to refund me.( HA !  HA! )     However I have been informed that the developer used three separate Banks to deposit the monies for our complex, so how would we be able to take a bank to Court  when we can't prove which Bank our money was deposited.

I can't see the Developer being forthcoming with this information..........can you ?

Even if he did (HA! HA! )      how would you prove that the money was from an off plan purchase ?

Maria,

Can Banks be requested by law to perform an audit trail to establish which developer's Bank ultimately took the deposited monies that were forwarded by the purchaser to, either a lawyer, and/or agent, and/or directly via bills of exchange to the developer? Can the Banks refuse to provide this information?

How long could this process take?

Perhaps Keith also has information that can assist purchasers to understand the complexities to this process.

As for the Bank "knowingly" taking monies relating to off plan purchase, perhaps Maria can clarify how this can be proven?

It is understandable that purchasers require reassurance to comprehend the processes involved before they would be willing to commit to this process.

European Anti - Terror legislation since 9/11 has required all money transactions over £10,000 to be traceable and for cash there are stricter rules.

"Technoape,according to Maria, is incorrect to state that the sales/marketing literature does not form part of the contract on offplan property. It does. So the marketing literature that was provided at Casares Del Sol (or any development for that matter) does form part of the contract and no special clause(s) are required to qualify this."

I think all interested in this thread should have a good read of this:

The Principles of European Contract Law 1998:

Article 5.101 - General rules of Interpretation

Article 6.101 - Statements giving rise to contractual obligation

Article 8.101 - Remedies Available

Article 9.301 - Right to Terminate Contract

The Principles of European Contract Law 1998 : Full document

As you can clearly see, there as many loopholes as there are craters on the moon!

Unless you clearly state in a purchase contract what it is you are actually purchasing, then there is room for maneuver for the other party involved.

If you are purchasing a particular property purely on circumspect that the Urbanisation/Holiday Complex is to have extra amenities beyond those that are a basic requirement to the purchase of the property itself, including the communal aspects, then it needs to be included in the purchase contract that you are doing so. Thus it can be agreed, during the drafting of the purchase contract, that:

Any such amenities as promised in the Sales/Marketing Brochures, directly implied or otherwise, not completed or not provided due to any and all unforeseen circumstance, would result in a breach of contract,

In addition, the previous agreed sum of monies shall be withheld at point of completion, in accordance with the aforementioned breach of contract, not withstanding any difficulties the vendor is currently or has prior to,financially or otherwise not stated, has previously and/or is now directly or indirectly of this penalty resultant at the due date of completion of this contract, or indeed subsequently facing, bare any reasons behind such failure to provide full and total contractual obligations, as previously stated.

Or something along those lines, and have the agreed sum of monies to be withheld and.or discounted from the final purchase stated before the above, countersigned by Lawyers from both sides!

Basically, the law is an ass... and you need to cover your own!

Thanks Technoape.Hopefully Maria will now explain further....... has case law been established or is this still open to interpretation? No doubt it comes down to skilled legal arguments but purchasers need to know if developer's marketing literature counts for little at the end of the day. If this is the case in Spain, there will be many who will be loathe to purchase so long as the developer can basically state whatever they like without any accountability..

We also need an answer to how it can be established that the Bank "knowingly" took monies relating to off-plan purchase.

This message was last edited by ads on 19/12/2010.

This message was last edited by ads on 19/12/2010.

Yes thanks Techno

Article 5.101 (Ex art. 7.101/ 101A) - General Rules of Interpretation

Article 8.101 (ex art. 3.101) - Remedies Available

Article 9.301 (ex art. 4.301) - Right to Terminate the Contract

Well folks that seems perfectly straightforward we did not get anything like our reasonable expectations - no question

No moon craters there

If at further stages the holes appear which makes the law an ass when you try to apply it............

then under that "umbrella" what did Techno think he was doing with his expensive charade???????

Nothing he did could lift that "umbrella" with or without his lawyer's assistance.

So in fact he was left with.............

"subject to the requirements of good faith and fair dealing,"

in effect the developer was a decent bloke who provided what he charged for..............simple.

But there again, I thought Goodstitch's case was simple and worthy of no more than two munutes consideration. The judge eventually got there 6 months or more later.

Regards

Norman

norman

yes, we went to court in April, and it was nearly six months before we got a decision from the judge.  That was bad enough, but what really sunk us was the fact that the courts had accepted our case against Aifos and granted a court embargo against an Aifos asset 18 months previous to the hearing taking place in the April!!.   Even if the court delay had been 12 months, we could have actioned our embargo if Aifos were not cash rich enough to pay our court win as Aifos were then still in business and didn't appeal against the court judgement in our favour. Today we have nothing. 

It's all very well being in the right, and winning your very clear case, but your win and your court embargo mean virtually nothing if the courts delays mean the company you are suing has months or years to go bust before your case is settled. This can never be called justice until we are paid what we are owed by the courts/government?

Absolutely agree with Goodstich. The court delays are the major contributory factor to compromising purchasers as things stand right now, and I would be interested to know if ANYONE has managed to place a complaint against the CGPJ and have their case brought forward and thereby receive return of their monies as per the first instance ruling. In fact has any lawyer ever challenged the justice administration system and received any favourable response?

Just a few outstanding questions for Maria.

Has case law been established relating to the marketing literature acting as part of the contract, or is this open to interpretation as has been suggested?

How can you establish that the Bank "knowingly" took monies relating to off-plan purchase.

ads

what makes this even worse, is that at the time our embargo was granted to us, the courts were very aware of the fragile nature of Aifos. They were in court several times a week for similar scams to ours. What possible grounds for an 18 month long delay with that in mind?. (plus the further 6 months for the judge to pass sentence!) 

"If at further stages the holes appear which makes the law an ass when you try to apply it............

then under that "umbrella" what did Techno think he was doing with his expensive charade???????"

It was no charade and certainly not expensive to ensure that one is entering into a contract that is as "Iron Clad" as possible with regards to what it is that is being purchased and what rights I had after purchase!

Nothing he did could lift that "umbrella" with or without his lawyer's assistance.

I used the law to ensure I had the law on my side!

So in fact he was left with.............

"subject to the requirements of good faith and fair dealing,"

Nope! I was left with a purchase contract that left no room for maneuver and/or interpretation!

As can plainly been seen from my previous post, much is left to interpretation.

Marketing literature will show extra facilities that are to be built, and will also show the specifications of the property being purchased. However the property purchase contract only refers to what you are actually purchasing, and if there is no mention of the extra facilities being a part of the condition of sale of the property being purchased, then it can and indeed is difficult to argue that there is a breach of contract in supplying the property itself.

If you add such conditions into the purchase contract, then there is little or no room for maneuver or interpretation.

Article 9.301 (ex art. 4.301) - Right to Terminate the Contract

"A party may terminate the contract if the other party's non-performance is fundamental."

What one person may consider fundamental, another may not.

Quote Inspectahomespain:

"There have been numerous claims made on this forum that the information included in the marketing material relating to things like hotels, spa´s shopping facilities but there is little real evidence of success with these cases, some claim to have won actions but there still seems nobody willing to ACTUALLY confirm this with the actual details of the case and if this has really set any sort of legal precedence

The biggest issue is that if a developer is still in business they will claim as defence that they will EVENTUALLY build the facilities when the economic situation allows and there are real example here, Polaris at Hacienda Requelme when they did eventually convert the Hacienda into a commercial facility"

As has been stated on this forum and this thread, there is also an allowance of 10% discrepancy actual build footprint of the property itself, and the Judge will also take that into consideration.

Goodstich. Has your lawyer submitted a complaint to the CGPJ? The more evidence you gather relating to this the better. Not that this is any consolation but if you have been seen to be following all the recognised procedures then they will have little room for manoevre if we ever manage to make them accountable.

I'm hoping Maria will respond to my latest queries as consumers definately need to be made aware of the realities relating to the marketing literature forming part of the contract and to know if any case law has been established  (and not conjecture on our part), Plus I think claims against the Bank  route needs further explanation with regard to how you can prove that a Bank has "knowingly" taken monies relating to offplan development.

These insecurities and lack of knowledge will only fester in consumers' minds so long as we have conflicting information, so we need factual information, backed up with case law and actual case wins where possible, to assist us all in our struggle.