Murcia Appeal Court states Polaris has breached contracts

http://www.eyeonspain.com/blogs/costaluz/6801/legal-tip-725-murcia-appeal-courts-state-polaris-has-breached-contracts.aspx

Legal tip 725. Murcia Appeal Courts states Polaris has breached contracts 
11 March 2012 @ 00:41 

Maria 

Does this now mean that the marketing literature now counts for little in terms of consumer rights?

What facilities were not made available in these cases re Polaris World I wonder?

Doesn't this mean that purchasers are having to complete on properties within complexes that no longer met their original requirements?

I'm confused by this ruling Maria so perhaps you could clarify the details.

Many thanks.

According to Murcia Appeal Court ( which is of course questionable at the Supreme Courts) the lack of facilities: downtown, hotel, shops, restaurants... that were advertised as part of the complex is not a breach deemed cancellation but compensation if not completed in a reasonable period of time.

We understand from time contracts were signed to present time, that reasonable period of time is now over.

This understanding is not the same in other provintial courts such as Malaga for instance

Kindest,

Maria

 Does this mean that compesation on original purchase price can be persued on completed properties in lieu of lack of promised facilities?

According to the last posting on your blog Maria, it appears Polaris are still promising facilities to new purchasers. Is this correct?

If so, where exactly does the law stand on false marketing now Maria? If this judicial ruling is inconsistent with other rulings elsewhere, which ruling applies in terms of the law Maria? I thought that the marketing literature acted as part of the contract in which case this would be breach of contract wouldn't it?

It's a nonsense to expect new purchasers in Spain to be exposed to this level of uncertainty and risk.... never knowing where the next falsehood will arise and what end result they will be compelled to live with at the end of the day.

This sadly just adds to the growing list of  insecurities when purchasing in Spain.

 Dear Anne:

According to Murcia Appeal Court ( which is inconsistengt with other decissions of Appeal Courts in other provinces and with the Supreme Court), as the lack of facilities is not definitive, buyers cannot ask for cancellation, just for price compensation.

If the lack of facilities became long enought cancellation rights might be possible

I of course do not agree with the ruling as both rights ( cancellation and compensation) due to breach by Polaris should be available to buyers but... it is what Murcia Appeal Courts has decided as a solution for these cases.

The battle for cancellation can be followed up in the Supreme Court.

Some people are happy though anbout receiving a good compensation for lack of facilities

To your knowledge Maria, are these Mercia rulings being fought at Supreme Court level and if so how long would it take to overturn a ruling such as this?

Inconsistencies such as these rulings that you described in your blog as "rogue rulings" within the Spanish Justice System are just as much a problem as indefinite delays are proving, and more importantly they are now undermining all the good work by those such as yourself.

If you look at the implications of this ruling everyone will recognise that marketing literature by any developer in Spain can no longer be relied upon in the eyes of the law, until such time as the Supreme Court clarifies the legal position.

Presumably now this means that marketing literature no longer acts as part of the purchase contract., so following this logic through, for those who do not wish to complete on a property denied of facilities as promised within the marketing literature, is an alternative legal option to take action against the conveyancing lawyer who presumably failed to protect the client from open-ended anomolies such as this within the purchase contract? Does this ruling now shift the responsibility to the conveyancing lawyer?

Hi Ads

There will always be inconsistencies in decisions relating to off-plan purchases.

Courts all over Spain are currently dealing with Lawsuits in relation to Off-Plan property purchases.  As a result hundreds of different Judges are passing judgments.

The Judges all seem to have their own interpretations of LEY 57/1968 and other regulations regarding off-plan purchases.

The Judges also pass their Judgments based on the Lawsuit that is presented to the court.  Some Lawsuits may be well prepared and contain strong legal arguments, evidence and examples of case law.  Other Lawsuits may be weaker.  It depends on the Law Firm who prepared the Lawsuit and the quality of evidence available to them.

On each development there may be a number of different Law Firms representing a number of different Purchasers.  The contents of each Lawsuit will vary and the Court Jurisdiction in which each case is heard may vary.

Therefore, on one development it is possible to have two buyers with adjacent plots being represented by different Lawyers.  One case may be heard in Madrid and the other case heard in Albacete for example.  Virtually identical cases, but different Lawyers, different courts, different Judges - and possibly totally different Judgments - One buyer could win and the other could lose.

So there will always be these inconsistencies because in most cases it comes down to the strength of the Lawsuit and the Judges understanding of the facts and interpretation of the Law.

This will be most evident in the situation at Polaris World as they are one of the largest developers with a great number of purchasers - some happy and some not.  There are probably 30 or 40 Law Firms representing the unhappy Polaris purchasers.  So there will never be consistency.

Kind regards

Keith