What happens if I do not collect a Burofax???

I have received a notification for a Burofax, which was received at a Spanish address where I was previously 'registered' (I am no longer registered at that address).

I know that this was sent by an estate agent who is demanding commission on a sale of a property which was negotiated by them, but which never completed.

What happens if I do not go to the post office to collect the Burofax?

And could the agent commence proceedings in Court without my knowing and obtain judgement in my absence?

Any advice will be appreciated!

Many thanks

 

 

This message was last edited by gollygolly on 08/01/2013.

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This presumably all hinges on the contract you had with the real estate people. Although most contracts provide for the fee to be payable on completion, it is not entirely uncommon in the UK or in Spain for the full fee to be payable on exchange, or in Spain the equivalent would be at the point of the 10% deposit being paid. Just because it is in a minority of contracts doesn't mean it doesn't exist. So if your contract was one of these, and you signed it, then sadly you became liable for the full fee, even though the sale did not go through.

Following from that, if you were liable for the fee, however annoying that must be (especially if you didn't realise that was what was specified in the contract), then it is a contract and the Burofax presumably needs to be collected and proceedings begun so that you can agree a payment schedule for the payment that is due.

If on the other hand, the contract specified that the fee was due on completion, then presumably the Burofax needs to be collected so that proceedings can begin to rid you of this silly attempt to extract payment which is not due.

Personally, I can't see any reason why you would want to not collect the document and get this sorted out so that the weight is lifted from you, this person is no longer chasing you, and you can sleep easy.

This is a personal comment with no specialist knowledge or expertise. However if you Google "estate agent fees if property not sold" you will find many articles covering UK and Spain, setting out these two options of payment timings within contracts.

Good luck.

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Many thanks for your response - very appreciated.

The question that I have remains what are the consequences of not collecting the Burofax, and if the agency could obtain judgement in my absence and without my knowledge.

 

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Re the sale, though this is quite separate to the question of collecting/not collecting the Burofax : I never accepted or took the deposit, as stated in the contrato de arras, so I believe that without having accepted or taken there is no contract. 

 

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 Well I don't consider myself an expert on this but in my time I must have sent over 200 burofaxes for outstanding debts owed to a company I used to work for so  I am talking from personal experience, mainly with the Valencian Courts. Firstly it is important to know what type of burofax they have sent you, and you won't know unless you pick it up, because if the burofax has not had the "text" validated it does not constitute an official notification but if it has, and normally they are, it costs a bit more (around 27 euros), having sent this type of burofax to the address decalred in the contract is sufficient for the other party to initiate a judicial proceeding, as all contracts require each party to communicate any breach of contract via "una notificación fehaciente" (an official notifiaction). Even if you don't collect it, it is sufficient to start the law suit, it is proof that the other party has tried. From now on they have fullfilled their obligations. The responsability will then be for the courts to locate you. From my experience this can be easy or can take forever, depends who you are, where you are and what you have. If the court cannot locate you because you are in another country they may well decide to publish it in the BOE and from that point on it is considered that you have been offcially notified (this could take well over a year) and the court proceeding will begin. Naturally if you are not there to defend yourself and the other party believe they can defend their argument and produce evidence that you have breached the contract by not paying them the commission (I do not know the ins and outs of your contract), maybe it wasn't conditioned to closing the deal. The Judge will not give it a second thought and file against you. But even if this is the case, and you are there to defend yourself maybe you can present other evidence that proves the contrary and the Judge may file against them. But one thing is for sure, the proceedings will go ahead with or without you, it will take a long time though and if they win they will start to iniciate an embargo procedure, if you have assets, if not it will stay on the books for, if I remember correctly 15 years, before it disappears. So for a dubious commission on the sale of a property that was never sold, I would suggest you pick up the burofax and talk to them, as Judges tend to be fair and recognise if contracts are abusive/ excessive or not and judge accordingly- In Spain what goes in the contract isn't necessarily always accepted in court.

Hope this helps

 

 

This message was last edited by mac75 on 09/01/2013.

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 I will add to my previous post, that the court will decide if you have been notified or not. We had cases where we couldn't notify people who had moved abroad, had no assets in the country (which is easy to find out) so we either continued if we believed they would return someday or gave up if you felt they wouldn't come back as it entailed unnecessary lawyers fees. It depended on the amount outstanding. But a court proceeding if you are present can take years with appeals and if you are not will be done and dusted in about 18 months in Valencia, from the moment you present the documents in the court. If you are certain it is them, I would give them a phonecall first to understand what their intentions are and take it from there. That does not constitute an official notification. I would however suggest that you speak to a lawyer familiar with your local court as all courts have their own way of working.

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Thanks a million Mac75, and yes, this has helped me understand my position, and yes, I will now and collect the Burofax, and see where this leads me.

 

Very much appreciate the time taken in preparing your explanation.

 

 

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As an update to previous postings.

 

Again thanks for the time taken by the contributors.

 

I have collected the Burofax, which appears to be of the sort that certifies the contents.  The text is very brief : a simple demand for the payment of the commission + IVA on the whole sum that would have been paid had the sale completed.

I am making arrangements to get a lawyer to advise me, but if anyone has knowledge of the following, it would be appreciated:

 

1]  the signing of the original Contrato de Arras states Reunidos - is it valid given that we were NOT reunidos.  The document was signed without both parties being "Reunidos"

2]  I never collected, took or even touched the cheque that was the payment for the deposit under the Contrato de Arras - it was only ever held by the estate agent

3]  the claim is for commission on the total sum for the sale of the apartment, and not the sum stated under the Contrato de Arras

 

Any information or knowledge would be very appreciated

Thanks

 

 

 

 

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Hi Golly golly

1]  the signing of the original Contrato de Arras states Reunidos - is it valid given that we were NOT reunidos.  The document was signed without both parties being "Reunidos"

This doesn't mean that you were physically together in a meeting while signing the document. It merely means that the two parties mentioned are united or bound by this contract. 

2]  I never collected, took or even touched the cheque that was the payment for the deposit under the Contrato de Arras - it was only ever held by the estate agent

If you have never received any money or payments, or signed a receipt for it , I suppose that you could perfectly defend that the Contrato de Arras was not completed. However if in your contract you gave permission to the agency to receive money on your behalf there would be  a discrepancy there. In many occasions the contrato de arras is a receipt for the money that is handed over in that moment, in which case it will state in the contract that "este documento sirve como recibo de dicho pago" ó algo parecido. whether you received it or the agency received it on your behalf, if you sign the receipt of it, you have received it. The problem would then lie with the agency in handing over the money to you or you pulling out of the sale. 

However the contrato de arras has nothing to do with your contract or agreement with the agency,  it is an agreement between the buyer and the seller. The whole problem lies with the contract you have with them and what it obliges the both of you to do. 

3]  the claim is for commission on the total sum for the sale of the apartment, and not the sum stated under the Contrato de Arras

If the sale did not go through then there can't be a comission, surely there is some sort of clause in the contract that contemplates this situation in case someone pulls out or the contrato de arras is not fulfilled by either party. It would be ridiculous to pay a comission on the sale of the house if it wasn't sold. I would negotiate a reduced comission for the work carried out by the agency as from what it sounds like, they took the sale as far as it could go; to the contrato de arras. It depends on what you agreed with them and if you have that in writing, signed by you. If there isn't an agreement in writing there is nothing more to be discussed. I have had little experience with estate agents but from the ones I know, all Spanish,they will only receive a comission if the sale is completed, not on the completion of a contrato de arras. Without more details I am afraid I can't help much more.

Hope it was of help.

 

This message was last edited by mac75 on 15/01/2013.

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On the issue of the deposit, I'm wondering then if the estate agent kept that - 10% of the sale price is presumably a lot of money.  Or was it given back to the buyer, which I find strange, because it would usually only be given back if the seller reneged on the deal and the seller would then have to add a futher 10%.  That's my understanding.  If the estate agent pocketed the 10% they will have in fact received more than their commission and I would be threatening to take them to court, to get hold of it.

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 If the sale did not go through then there can't be a comission, surely there is some sort of clause in the contract that contemplates this situation in case someone pulls out or the contrato de arras is not fulfilled by either party. 

 

Not necessarily. For example, if the estate agent did his job and found a willing buyer, and then the seller changed his mind and decided not to sell, then the estate agent would have a valid claim for his fee. This happens quite often.  In "Anglo-Saxon" law the clincher would be a clause that confirmed that commission would only be paid on transfer of title. This would protect the seller, even if he pulled out of the deal. 

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