NEW! Granada Appeal Court greatly applying Law 57/68

M11block:

Good point.

According to Law 57/68, Bank Guarantee expires just when the house is finished with full licenses and deliverd to buyer.

Supreme Court making an interpretation of the use of this Law according to good faith parameters, say that lack of it is breach of contract just at early estages of the building procedure.

They are two different concepts: first is telling you that at any stage you can use the Guarantee and get your money back ( any time before issuing of Bank Guarantee) and second one is telling you that the lack of it is  a cause for contract cancellation just if you use it at early stages of the building procedure.

Hi Maria,

The following questions which were posted on the 14 DEC 2013 @ 10:10, were originally addressed to Keith in response to his post dated 12 DEC 2013 @ 11:55.

Hi Keith,

Am I right in thinking that the below would apply to the AIFOS cases from which your firm are at present trying to obtain the details of clients deposits

It could also be an option for the Litigator to request that a representative from the buyers original conveyancing Lawyer be called as a witness to the Trial/Final Hearing.

Q.  If it transpires that there are no bank accounts in the AIFOS books appertaining to my deposits could your firm request the attendance of my original conveyancing lawyer, as, up till now he will not divulge this information ?

If the Lawsuit has not yet been filed then the Bank or conveyancing Lawyer could be named in a pre-procedure called Preliminary Diligences whereby the Court is asked for its assistance in obtaining evidence necessary for the case to proceed.

Q.  When you say that the court can "ask" for his assistance, what happens if he refuses to assist are there any penalties ?

Unfortunately there are many conveyancing Lawyers that accepted their clients off-plan deposit funds and now, despite repeated requests, will not provide evidence of the developers account to which they sent the funds.

Q.  Would the fact that he has deliberately ignored mine and Maria's requests for this information be highlighted in court ?

Maria,

How can innocent purchasers be expected to make a claim to gain cancellation of contract in the early stages of  build for lack of guarantee if they have no intellectual knowledge of same, nor have they been advised by conveyancing lawyers who acted negligently from the outset by failing to ensure that bank details relating to secure accounts for deposited monies were written into the original purchase contract?

Secondly, delivery of housing is defined and mutually agreed in the contract in the form of a completion date, and if build is running late and licences have not been issued by that stipulated completion date and force majeure does not apply, then presumably developer breach of contract has occurred and this is sufficient to qualify to enact a BG for return of monies, is this correct Maria? ........ but if a BG has not been provided in this instance, or for whatever reason cannot be enacted (for instance illegal BG or a BG with illegal extension parameters that cannot be enacted until an extended period beyond the completion date), again without purchasers' intellectual knowledge, then why does this not qualify for cancellation of contract and return of monies, given the purchaser has been denied their inalienable rights to have their deposited monies secured in a special account and return of same when breach of contract occurs? Surely this demonstrates a complete lack of good faith on the part of the developer as not only has he not delivered the housing according to mutually agreed date but neither has he ensured deposited  monies were protected and covered by a legal BG?

 Why is the Supreme Court not recognising these facts Maria? Are they in effect turning a blind eye to consumer rights, to acts of "bad faith", to basic contract law?

This message was last edited by ads on 24/01/2014.

This message was last edited by ads on 24/01/2014.

This message was last edited by ads on 24/01/2014.

Hi ads,

Your first paragraph hits the nail on the head, and describes my position exactly, I wonder how many other ex-buyers were let down by the Spanish Lawyers in a similar manner, also when I suggested, years ago, to my second set of lawyers, that my first lawyer had been negligent, they stated that it was not their policy to prosecute another Spanish Lawyer, and therefore since I did not have any details of the bank, I thought all was lost.   Thank goodness for Keith and Maria and Co. and Ley 57/68.

Hi Maria,

I have copied my original questions as you requested, on 24 Jan 2014 at 08:41;  can you please spare a couple of minutes to answer them ??

Ads: In the case of someone losing refund possibilities due to the lack of a Bank Guarantee ( being this cause-effect relatioship clear and well proved), and having used a conveyancing lawyer, I would definitely use an action against this.

Belucky358: ( answers below in bold green. Please email me privately if you have more doubts/questions)

Q.  If it transpires that there are no bank accounts in the AIFOS books appertaining to my deposits could your firm request the attendance of my original conveyancing lawyer, as, up till now he will not divulge this information ?

Yes, we could

Q.  When you say that the court can "ask" for his assistance, what happens if he refuses to assist are there any penalties ?

Bar Association will be in charge of assisting us.

Q.  Would the fact that he has deliberately ignored mine and Maria's requests for this information be highlighted in court ?

Yes, it would, if necessary, in the right moment and action

Hi Maria,

Thank you for those encouraging replies, I was afraid that if AIFOS did not record my deposits truthfully, then we may have hit another brick wall, however if this Spanish Lawyer, ( to whom I paid the deposits and who forwarded them to AIFOS ) can be brought as a witness, then I believe we have a good chance of obtaining this Banking information, especially if the Bar Associating will be involved.

Great stuff, belucky and Maria. I wanted to know a bit more about that too.

There are also important and concerning implications for some to consider that are covered in Maria's blog, see http://www.eyeonspain.com/blogs/costaluz/12208/Legal-tip-1099-Supreme-Court-and-3-months-delay.aspx