Inconsistent judicial rulings, BG malpractice and ongoing concerns re consumer rights

Following the welcome success of Keith Rule and his Finca Parcs group action against the CAM Bank and a response received via our MEP from the European Commission, President Barroso, in May 2013 relating to the continuing problems faced by off-plan purchasers in Spain, in which it was identified that the Commission have “no legal basis on which to intervene and therefore the issue will need to be pursued at National level”, we felt it necessary to write the following response to our MEP, who noted “I only wish we could have brought you a more positive response “.

 For all those who continue to be affected, please may we suggest that you do likewise and express your continuing concerns to your MEP via www.writetothem.com .

Dear Sir,

 Many thanks for your attention to this matter.

Yes we were thrilled and it was great news for Keith Rule and his group at Finca Parcs relating to his successful fight for justice against the CAM Bank, but although this was hoped to set a precedence, we sadly continue to witness inconsistent judicial rulings relating to Ley 57/68 in Spain, where all too many financial offplan deposits remain in a black hole, unaccounted for.

Alongside the use of unrecognised and illegal Bank Guarantees, we have recently become aware of a malpractice to post date Bank Guarantees so as to deny the purchaser the opportunity to enact their BG at the point of breach of contract, which fails to ensure timely delivery of housing according to the contract, and we are wondering how widespread this manipulative practice has become to once again deny citizens their rights according to an existing law.

This coupled with increasing compromising delays to the Justice System in many areas of Spain and the common practice of appeals, only extenuates the need for an ombudsman, specialised courts and fast tracking, as Keith Rule has advocated in his highly respected Bank Guarantee petition www.bankguaranteesinspain.com .

Jose Barroso has identified once again how vulnerable European citizens are with regard to the protection of their property rights across member states, so long as inconsistency of judicial rulings and compromising failures to administer justice within reasonable time constraints remain.

Citizens should not have to be exposed to this legal lottery with accompanying fear and major expense as Banks/insurance companies/developers and in some cases lawyers (who failed to represent the best interests of their clients), play the system of delays and endeavour to use all manner of manipulative and often "hidden" illegal ploys, which sadly continue to discredit the real estate and legal system in Spain.

I trust and hope that you will continue to remain aware of our ongoing concerns and recognise these failings and impact on the rule of law in Spain, and how imperative it has become for the European Commission to review and reform the legal basis upon which they can intervene in such matters. Until such time as citizens in Europe are protected in this regard, the strong and restrictive message BUYER BEWARE ACROSS MEMBER STATES will only accentuate the failings of consumer protection within Europe. It hardly inspires confidence in an already fragile system that many are sadly now calling into question.

I look forward to your response in this matter.

Kind regards.

 Those postponing practises are null and void. Whatever the Insurance Policy or the Bank Guarantee document says, Law 57/68 Guarantees are always valid till the issuing of first occupation license and handing over of property to buyer.

Case Law in Spain is clear on this.

The instance I was referring to here Maria is when an "effective from" date written into a Bank Guarantee post dates the end date written into the purchase contract, thus denying the ability to enact the BG if an LFO is issued late, after the end date as per the purchase contract. This would appear an illegal act and a manipulative ploy, which has the potential to deny the purchaser their inalienable rights by not guaranteeing timely delivery of housing. 

Sadly it would appear that some judges are failing to refer to this illegality within their judicial rulings which begs yet more questions relating to correct interpretation of consumer rights according to Ley 57/68 and timely delivery of housing.

I know it's not an exact science but there are still aspects of inalienable rights according to Ley 57/68 that are not being recognised by some Spanish judges, and in the interim purchasers who have been exposed to this form of manipulative malpractice by developers/lawyers will remain at risk, so long as judicial interpretation remains inconsistent.

Let’s hope that any attempts to enforce judicial rulings that fail to recognise consumers’ inalienable rights according to Ley 57/68 are subsequently deemed unenforceable!