Innocent Brits to be evicted from their homes.

I wonder how they went about transferring ownership back to Masa ...I am sure the paperwork for this would have to be done legally ...and not just a matter of sending the documents back to Masa in the post.. So how would the transfer  of ownership be possible without any money changing hands .

Wouldn't that have been the default position once canx of contract occurs as per the judicial ruling in favour of the claimant ( on the understanding that monies would be returned as per the ruling)?

Ads.   I thought the duty of the civil court was to form a judgement that made each party 'whole' again.  

That would mean the exchange of a void contract for the consideration of the money paid.   Even if the judgement went into an administration it would be a very powerful argument to treat this as a secure creditor, and the 57/68 would make the bank guarantee a valid document too?   

Its an interesting case, someone has been very unprofessional in their work!  

Perhaps our kind supportive educator Maria can clarify this legal principle :)

Ads:

What is the legal principle you want me to clarify? ( Sorry... I might be still a bit sleepy)

Thanks Maria. 

When a contract is cancelled in favour of the claimant following developer breach but they never recvd monies as per the successful judicial ruling, and the developer goes into administration in the interim prior to enforcement, as in this case ( connected with threat of eviction), does property ownership revert back to developer or funding bank ? 

Is the claimant then classed as a non preferential creditor at that point, so they have to issue a separate lawsuit against a guarantor Bank to retrieve those monies as per the successful judicial ruling? 

Or could they be classed as a preferential creditor if they had proof of a BG?

Ads personally I would have thought.. That whatever the judges ruling was apon Masa (to take the property back .).it was.on receipt of money's ...if the claimants did not receive payment then the property would remain in their possession until paid for in full ..l personally know of 2 owners that have won a full refund from Masa via the Court's  ...but the property remained theirs until payment was received from Masa no payment was received ...both these owners lost possession as they refused to pay for the Escuturas ..even after many warning from the Liquidators and the( CRA) Residents Association I think when you dig deeper into this is the case this is what happened ....this has been common on Camposol  with people thinking they would receive a payment ..because of a Court ruling ..but what they failed to take into consideration was the amount of Dept's Masa had which is the reason they went bust...if you new Camposol like I do... I think you would have a different view on the matter.

Masa if they still own it and haven't fiddled it away somehow, have the Masa International Hotel just outside Torrevieja up for sale for 8 million €'s.

Plenty enough to pay all the debts I would think.

Baz1946  Masa transferred all its Dept's over to its sister company Justio Milano...and them Justio Milano filed for Bankruptcy protection leaving Masa Dept free....That's the way a LTD Business works ...Currently Mazorron Council  has a claim in for €16 million ...but up until now have only recovered €1 million in the shape of a bank guarantee .The Mazorron Council are only one of many that is owed money ...I think you can work the rest out yourself.

Ads: See answers to your questions below in bold green ( same text as your message):

Thanks Maria. 

When a contract is cancelled in favour of the claimant following developer breach but they never recvd monies as per the successful judicial ruling, and the developer goes into administration in the interim prior to enforcement, as in this case ( connected with threat of eviction), does property ownership revert back to developer or funding bank ? There are rights in two different and unconnected spheres here. That´s why Law 57/68 was created and is being so useful in these after bubble burst times.

1) Enforcement rights of the bank which lended money to developer with the guarantee of the work which was being built.

and, independently

2) Refund rights of buyer against both ( and jointly and severally) the developer and guarantor ( or depositary bank) 

The two set of rights can be played simultaneously and independently.

Is the claimant then classed as a non preferential creditor at that point, so they have to issue a separate lawsuit against a guarantor Bank to retrieve those monies as per the successful judicial ruling? The intervention of the claimant in the creditors meeting is just necessary to have the contract cancelled as a base for the claim against the Bank.

Or could they be classed as a preferential creditor if they had proof of a BG? No need for a preferential classification of the credit as rights against law 57/68 guarantors ( or depositary) are independent of this. Just the registration of the credit as a proof of contract being cancelled is necessary.

Transfers ( shares, assets, monies) to sister companies seem to be a common theme to avoid repayments according to  outstanding enforcements, which is obviously yet another loophole that these companies continue to exploit. 

But another question for Maria is, is this deemed an illegal activity if it is effected AFTER an enforcement order for repayment has been issued? Are there any legal  procedures in place therefore to speedily effect freezing of assets at point of enforcement, until such time as repayments are achieved? Wouldn't this be a legal solution to this abusive malpractice to prevent non compliance with regard to outstanding enforcement orders?

Once again we see how loopholes of this nature that are not being addressed/ resolved at source, only leads to complex lengthy litigation AFTER THE EVENT.

Law 57/68 is actually the safeguard to all those different situations of either natural or artificial insolvency of developers. Of course, there are different criminal figures of punishable insolvency in Spain but,,.,; that does not give a such effective answer as law 57/68 gives to those situations for off-plan buyers

Again, a "Laudato" to law 57/68 and the great interpretation of it by Judges in Spain. I am proud.  

I do understand how Ley57/68 should act as protection Maria given the current situation that requires immediate resolution.

But going forward how do you resolve the loopholes that are the vehicle through which these awful and significant circumstances arose in the first place?

Is there not a need to have far more effective regulatory structures in place with mandatory controls  (and where applicable, adequate disincentivies in the form of fines)  to curtail such manipulative behaviour from the outset, that does such harm to innocent citizens?

 A couple, just from  a quick review:

Stronger liabilities of Notaries and Registrars in regards to the checking of Urban status of any property transaction

Stronger control and  sanctions by Bar Associations  to Lawyers omitting due diligence

In the UK the courts are likely to prohibit a transfer of assets connected to the insolvency of a limited liability company if it happened within a certain period of time. 

I believe the timescale is three years, but this can be extended at the discretion of the court. But the gist is that the law would dissallow the act where it could be shown that it was undertaken to avoid liability to debtors.

Same in Spain ( provision 259.1 of the Criminal Code) which punishes all those who, by means of any of the conducts described below, causes his insolvency situation, or whoever carries them out being in a situation of current or imminent insolvency.

1. Conceal, cause damage or destroy property or assets that are included, or that would have been included, in the mass of the bankruptcy estate 

2. Transfer money or other assets, or assume debts that are not in proportion to the debtor's assets or income or lack economic or business justification.

3. Carry out sales operations or service provision for a price lower than its cost of acquisition or production and which lack economic justification.

4. Simulate credits from third parties or proceed to the recognition of fictitious credits.

5. Participate in speculative business, without economic justification and contrary to the duty of diligence in the management of economic matters.

6. Violates the legal duty to keep accounts, carry double accounts, or commit irregularities in its conduct. The destruction or alteration of the accounting books will also be punishable when in this way the comprehension of their patrimonial or financial situation is hindered or impeded in a relevant way.

7. Obstruct, destroy or alter the documentation that the employer is obliged to keep before the expiration of the term to which this legal duty extends, when in this way it is difficult or impossible to examine or assess the actual economic situation of the debtor.

8. Make annual accounts or accounting books in a manner contrary to the regulatory rules of commercial accounting, so that the examination or assessment of the actual economic situation of the debtor is hindered or impossible, or fails to formulate the balance or inventory within the term.

9. Make any other active or omission conduct that constitutes a serious breach of the duty of care in the management of economic affairs which decreases the patrimony of the debtor or by means of which the real economic situation of the debtor is obscured.

But, again, despite the existence of  this route, Law 57/68 provides a more direct and expeditious way to being restituted. 

A couple, just from  a quick review:

Stronger liabilities of Notaries and Registrars in regards to the checking of Urban status of any property transaction

Stronger control and  sanctions by Bar Associations  to Lawyers omitting due diligence

Two strong and excellent points Maria.  The UK has tightened up in these areas over time but there is always room for improvement.

I also believe that making the process a little longer in order to get these areas correct, is a small price to pay because when anything goes wrong, its very disruptive to finance, life and well being.

Agreed Maria but....

Extra resources are desperately needed (financial, technological) for the effective administration of courts and judiciary, to better ensure timely enforcements and consistent rulings in line with the most recent case law, together with better reporting and monitoring systems.

A wish list, yes, but so essential to the effective functioning of the justice system.

Sadly this last decade has let down all too many citizens who have been exposed to these shortfalls, and although progress is being made in terms of support for Ley 57/68, which of course is welcome (and you are justifiably proud), this has been compromised all too frequently by under resourcing which directly impacts (still) timely case law and SC clarification.

I do agree.Much improvement, from many different angles, are necessary.

I am aware some efforts are currently being done