Spanish Lawyers Professional Indemnity Insurance

Hi,

I originally entered this onto another "thread"  by mistake.

I hope it is noticed on this Spanish Lawyers  "thread" ? ?


 

This message was last edited by belucky358 on 30/01/2011.

Hi

I am in the same position and want to know how to claim off a UK solicitor on an off plan development that didnt come with a BG even though we asked for one and the solicitor out sourced it to a Spanish lawyer.  SAN JOSE (JUMILLA)  Is there time limits on these things?

thanks

Monica

 Any indemnity claim needs to be one year after the effective damage ( this, the day the effective damage was caused is the important aspect for your lawyer to clarify if needed) If you have been trying to obtain a result through other means and/or claims against other parties, time for expiration of the action has not started to count yet.

Maria,

Please can you advise if a Bank Guarantee has to be delivered before signing the purchase contract or is the conveyancing lawyer not obliged to do this according to Ley 57/68?

Ads,

Since Maria has not replied I have the following personal information......

I don't know if this is of any help but my Purchase Contract was posted to my home in England, and it was the first time I had set eyes on it.  

  It was signed by "my Spanish Lawyer" and the Spanish Developer, so I considered it binding and lawful even though it had never been discussed or explained to me.

It also included the paragraph    Agree that, in the case of requiring a Bank Guarantee or Insurance for the monies paid it will be obligated to provide it once the planning permission, licence of work is obtained, the cost of this being with the purchaser.

Since our Block of Apartments were never built, infact the Developer had no intentions, of ever building them, I assume there was never any planning permission or licence of work, therefore it follows that a Bank Guarantee was never provided.

 Ads,

according to provision 2 of Law 57/68, the delivery of the guarantee needs to be at the moment of signing the contract:

"En el momento del otorgamiento del contrato el cedente hara entrega al cesionario de documento que acredite la garantia, referida e individualizada a las cantidades que han de ser anticipadas a cuenta del precio."

Belucky - what a useless lawyer you had but no doubt he enjoyed a very cosy relationship with the estate agent and developer so of course he was not going to bite the hand that feeds him.

Like many Spanish lawyers he has since re-branded and now also does a lot of claims against developers and indeed claims to be somewhat of an expert in this area.

I would suggest you name and shame him because you owe these types nothing.

Thank you Maria,

So the BG has to be in place when signing the contract. This has obviously not been the case with us, and neither do we have proof from our originating law firm of the bank details where our monies were placed (since our law firm transfered our deposited monies in the form of a cheque). Does this now leave us with no option therefore but to persue the law firm for negligency and endeavour to regain our monies as per the successful first instance judgement from them or their insurers, or do we have to wait indefinitely for a response from our original law firm to disclose this information? Also do we still have to wait until the developer appeal is resolved before we can take action against the law firm? We are totally confused just how long we have to wait before knowing which is our best way forward to regaining our monies.

Please help.

Hi Maria,

Sorry to keep pushing this subject but we are in the same position as Ads i.e. we were not given a Bank Guarantee at the time of the Contract signing, or at any other time.

Therefore who is responsible for ensuring that this very important document is present at the precise time and location, not theoretically but in practice ?

Is it the Developers responsibility or the Lawyers ?

If it is the Lawyers, could I ask, do you arrange the Bank Guarantee, with the Bank, prior to the signing, as part of your role, also do you ensure the relevant Bank, deposits the down payment, in a special account, aswell as, any following payments ?

Thank you.

Developers are just liable of a fine

Banks are liable for not ensuring Bank  Guarantees/Insurance  policies are in place according to provision 1.2 of Law 57/68

Lawyers are liable as proffessionals as they signed the contrat without the required bank guarantees being in place as Law 57/68 requests.

normally what happens is that prior to signing the private contract we receive a copy of the master guarentee/policy and then once we have made the stage payments we collect the individual policy from the developer. But we never make payments through estate agents always to the designated account.

But here's the catch you have to drive to the developerS office to collect the signed guarantee/aval for each stage payment - a bit of a pain but I do it.

Sometimes you have to harrass until they release them which they do.

Problem is most lawyers were too busy signing up the next client to worry about collecting your aval/guarantee.

YOUR LAWYER WAS CLEARLY NEGLIGENT

It's not that simple though Faro..... If I have understood this correctly, according to Maria and Keith you have to first prove that the deposited monies were not put into an account linked to the developer (in which case a claim against the Bank would be possible). Where it gets even more complicated is if the law firm transfered the monies to the developer via a cheque, as this too is neglgent, but presumably you still have to discount if those monies were placed into an account linked to the developer before taking action against the lawyer. Is this correct Maria/Keith?

Where I am also confused is where the developer appeal comes into all of this? Does that have to be resolved before a client can take action against a negligent lawyer? Do you have to also prove that the developer is not able to meet their obligations according to the first instance win before taking action for negligence against a lawyer? 

So many outstanding questions........ sorry all.

Hi Faro,

Thanks for the info, but I am still confused, (it's my age.) Could you clarify the points below please......

normally what happens is that prior to signing the private contract we receive.....( Who from ?) a copy of the master guarentee/policy.... ( Is this the Bank Guarantee ?) and then once we have made the stage payments we collect the individual policy...(What is this individual policy ?) from the developer. But we never make payments through estate agents always to the designated account.....(.Are you refering to the "Special Bank Account" which must only be used for building the property ?).

But here's the catch you have to drive to the developerS office to collect the signed guarantee/aval...(.What is this guarantee/ aval ?) for each stage payment............(Are you saying each stage payment has a separate guarantee ?) - a bit of a pain but I do it.

Sometimes you have to harrass until they release them which they do.........( Sounds rather strange behavior from the Developer !)

Problem is most lawyers were too busy signing up the next client to worry about collecting your aval/guarantee..........(Yes I can easily believe that !)

YOUR LAWYER WAS CLEARLY NEGLIGENT............(That goes without saying !)

Maria,

Very useful advice but for the fact that you are wrong by...14 years. The time limit for bringing an action against a lawyer is 15 years, 1 year is for non-contractual negligence (tort).

I suggest you take your time to do research before you provide legal opinion as otherwise, you may also be held accountable for negligent advice.

Michael

Solicitor

Ads - I am not talking about what happens if you pay your money to some other third party other than to your lawyer.

All my clients pay their deposits into a solicitors client account and from there the money is transferred to the designated/specified account as per the private contract which is also in agreement with the master bank or insurance guarantee policy etc

Thereafter each time a stage payment is made a specific quarantee or aval is issued which refers to the amount deposited etc.

But you have to stay on top of the situation and monitor completion dates and expiry dates which banks or insurance companies always try to sneak into the aval when they shouldn't etc

But in many of what I call the bad cases the deposits were paid to UK estate agents and the trail is very hard to follow and the lawyers involved did absolutely nothing but take a fee - these are very difficult cases and those cuaght up in this have to tackle the burden of proof issue .....

Belucky - a good lawyer will request all kinds of documentation from the developer - plans, building licences, dia, visit site, visit town hall and so on until your lawyer is satisfied. But if your lawyer is paying for desk space in the estate agents office he won't do that and will just say it's all fine - next punter please and of course if your lawyer costs the estate a deal then their little private relationship ends so they don't bite the hand that feeds them.

The aval or  guarantee is the document you need that confirms the amount you have paid and is on bank letterhead and signed by the bank. You need to make sure you have the original of this document and that is why I always collect in person or the solicitor handling the file and place carefully on file just in case we need to use it!

If you are chasing them up quickly after each stage payment then you end up with more than one Aval but each one specifies the amount it guarantees.

Once the private contract is signed the developer also loses interest and is more concerned with new pending contracts so sometimes you need to harrass but I have never had that much difficultly getting them.  

Sometimes the problem is you are dealing with a developer in CDS and the bank or insurance company can be in another part of spain or on the islands and this leads to a slight delay but always it should be within a few weeks.

But all this is what your lawyer should have been doing and more so becuase this is not your country.

Thanks Michael. 

Yes, it is true I need to go deeper now into Lawyers Indemnity Actions as more and more people are demanding this regarding Lawyers who did not obtain Bank Guarantees during the off-plan period in Spain. Thanks a lot for your contribution

Michael

This is actually a very interesting area becuase regardless of professional indemnity insurance if the lawyer has been negligent then you have a posible claim and there is no doubt these lawyers had been negligent.

Solicitors in England carry PII becuase the law society says they must do so to obtain a practising certificate and futhermore to protect them from unlimited liability as UK solicitors cannot trade through basic LTD/SL structures and are either sole traders or in partnership - we do permit LLPs but that's a different vehicle altogether. In UK a solicitor must carry GBP2m in PII and GBP3m if trading through an LLP structure and many solicitors will buy top-up cover of up to GBP5m, GBP10m, GBP20m, GBP50m depending on the type of work/client etc. Without PII these solicitors would lose their house!

But the problem we face in Spain is rarely will one lawyer go up against another and furthermore the law society will rarely assist you. Compared to the disciplinary committee of the law society of england & wales they are absolutely spineless. I think it's fair to say there is zero regulation and I am more than happy to explain that comment to the colegio de adogados de malaga. You pay the fee to the colegio and that's about it I'm afraid!

The other problem is Spanish lawyers do have an extended duty of care as do UK solicitors.

and then of course we are back to the same old problem in that Spain is a highly procedural environment which imposes an almost impossible burden of proof of the wrong doing or negliganet act.

and even if these cases go to court the judge will also know the lawyer or his family ........so don't expect to win!!!

You cannot in any way compare a UK solicitor to a Spanish lawyer and that really is the crux of the problem. People came to Spain and thought a Spanish lawyer would look after them the same way an English solicitor would and with the same duty of care.

Michael - I would be interested to hear your thoughts. I'm guessing you are a UK solicitor?

Faro:

I fully agree with you. As lawyers we need to do our work with the best of our diligences and according to the deonthological code. I think we also have a responsability towards reporting and claiming on actions which have damaged people and the reputation of our proffession.

There are many honest proffessional lawyers in Spain, and they also deserve the restoration of their reputation.

Yes, we need to go this way too.

Best regards,

Maria

But this is all just talk

I want to see a colegio with a strong disciplinary committee that will hear complaints against members in a timely manner and rule and revoke practising certificates.

Then I will respect the colegios - all 80 of them!!!!

What is really needed is one strong governing body based in Madrid and the local colegios should just be regional societies who can arrange local training sessions or whatever.

But this will never happen.

 I do fully agree with you Faro.

Why should not this happen?