no Bank Guarantee=refund

We have recently came accross several Court Cases in favour of consumers  who back our thesis that if a Bank Guarantee was not granted by developer, being that a non-excusable obligation since 1968, the buyer can cancel the contract ( with no further evidence effort required) and get all money back plus legal interets.

Very interesting!!

Maria

This message was last edited by mariadecastro on 2/14/2008.

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Hi Maria.

I and i'm sure many others would be interested in approx how long this process would take and approx how much would it cost. i am sure if the figures are favourable any solicitor able to deliver would be able to work some very long hours.

Looking forward to your reply.

Best regards Ken.

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Well, a declarative judicial process is needed and that is feed according to the rules of the Bar Association. Bars offer minimums to Lawyers that they can increase, know this.

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Hello Maria, We have a bank guarantee for our off plan build which should have been completed end of November 2007. the builder  was given 90day extension in the contract which takes us up to end of Feb 2008, we have asked our lawyer to execute the bank guarantee and refund all our money which amounts to 64000euro ,after many phone calls, emails and a lot of patience with all the excuses we receive that he can never meet with the builder our lawyer now say's it is time to take court action against the builder and also grant power of attorney to them to go ahead and make a claim on our behalf  , surley we should not have to do either of these as the builder has not upheld the contract,so by law he should refund our money as we have requested? We did make the big mistake by using the solicitor that was recomended by the agent, should we end dealings with our current solicitor and engage a new one or just hope that they will now deal with our request as the guarantee for the build is coming to an end.

We have been told by the solicitor the builder has told them that the build is not expected to be completed until 2010. any information would be most helpfull. Regards. Daphebba.

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As a matter off interest can anyone tell me if a  bank guarantee  should be given by a builder or do you have to buy it. Thanks 

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daphebba: Go an execute the Bank Guarantee, if your lawyer is not willing to do so, just change your legal represetation.

Remmy: The developer needs to pay for the Bank Guarantee. It is a legal obligation since 1968. Insist and do not go forward in the contract if that is not given to you.

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Daphebba, take Maria's  advice and act ASAP.

We bought off plan in 2003. Our place was never built due to an illegal building licence. You would have thought, no build the developer would refund us our 100,000 euros...but no. It took us 15 months from instigating proceedings, even with a BG to get our money + interest (avg 4%) + legal fees back.  Then the Bank appealed the Judges decision to pay us. That meant another Court hearing. Now it could take much longer as the Courts are clogged up. We took action against the Bank not the developer. We also changed Lawyers to action this. In fact it took  us three attempts to find a competent Lawyer!

Good Luck and remember, nothing happens quickly in Spain ...or without a fight!

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Hello Again, We have just been informed by our solicitor today that our bank guarantee ran out on the 30 th November when the build should have been completed but the builder has a 90 day extention written into the contract so it should at least be legal until the end of Fenruary? I did contact our agents in June last year about the guarantee runnung out and they informed us that the builder said the guarantee runs through until the build is completed is this true??? I do have a copy of the email the agent sent through to me to back this claim up.He told us that he has a promissory note in his office which the builder has agreed to sign next week, Help!!!!!! Daphebba.

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Hi Daphebba,

As I understand it, your BG guarantees your payment /s until the build is completed. You should have a BG for every stage payment you make.  I'm sure Maria de Castro can confirm the position re BG's. Personally, I think you should look to change Lawyers if you cannot trust your current one to act in your best interest 100%.   What area are you buying in?

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Hello Tish, We were supposed to be buying in La Atalya Garrucha, As you may have seen in recent posts for the La Atalya  message board quite a few have now pulled out and have had their deposits returned!!

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PLease have comments below in green:

Hello Again, We have just been informed by our solicitor today that our bank guarantee ran out on the 30 th November when the build should have been completed but the builder has a 90 day extention written into the contract so it should at least be legal until the end of Fenruary? Extensions need to be communicated, justified and approved by you once the completion deadline stated in the contract arrives. Our Supreme Court prohibits automatic unilateral extensions. I did contact our agents in June last year about the guarantee runnung out and they informed us that the builder said the guarantee runs through until the build is completed is this true??? Of course, by Law this guarantees are always operative till the First Ocupation License is granted. Any cancellation deadline does not apply. I do have a copy of the email the agent sent through to me to back this claim up.He told us that he has a promissory note in his office which the builder has agreed to sign next week, Help!!!!!! Daphebba.

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Hi Daphebba,

The best thing that you can do is to communicate with the people from your development.(by private email or pm through EOS. )  Contact the people who have been refunded and ask them to give you their lawyer's name. The lawyer will be well versed in the procedure against the developer or bank.  They will have done the ground work and know the history of the development. This will save a great deal of time in getting the wheels in motion to action your case. You do not need to have any contact with your current lawyer. Your new lawyer will get all of your paperwork for you. Agree a fee upfront  and ask for and sign a formal engagement letter with the new lawyer. 

I hope this helps. If I can be of any further help then pm me or write via the forum. I've been there...and as the saying goes...got the T shirt!!

Tish

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Since when did a builder like Aifos give a Bank Guarantee to anyone ?

It is absolutely no good having a law that says since 1968 Bank Guarantees(or insurance) on people's deposits

is there unless it is enforced.

how about mandatory 5 year prisons semtences for directors of building

 companies not providing one ? why not ?

people are being constantly ripped off in spain (including me) this will never stop until harsh action is taken

 

 

 

 

This message was last edited by johnmfranci5 on 2/23/2008.

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You are absolutely  right John. Many developers do not give BG's. It is against the law not to and there can be a mandatory fine or prison sentence. Guess what? It is never impossed!!!

Just to add to this, no one should be fobbed of with a "common" BG. A personal BG should have your name, passport number, the address of which apartment/villa that you have paid a deposit on and the amount that you have paid. Each stage payment should have a BG.

This message was last edited by Tish on 2/23/2008.

This message was last edited by Tish on 2/23/2008.

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I agree with both comments here. I have said before there is a simple way to enforce total legality on all new and resale properties. It should be made law that all purchase contracts should be signed before a Notary. The Notary should ensure all licenses, BG´s, etc. are in front of him before any vendor or builder recieves a penny. A full legal pack can then be handed to the buyer with a fast track to action should the seller not deliver the goods, because he has sworn to do so in front of the Notary. It can be of little doubt who has broken the rules and compensation should be swift and concise without the wronged party loosing a penny. Of course it would also have to work the other way around should a buyer try to cancel without good reason.

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Gillespie, in an ideal world...you've come up with a solution that would put an end to the misery of soooooooooooo many people.

Some purchase contracts are signed before Notaries that have illegal clauses in them that favour the developer if things go wrong, as in our case and all those that dealt with the same Lawyer/developer. Also, when we sat before a Notary for something to be signed for which we paid an exorbitant fee, I'm not sure his backside actually touched the chair before he walked out of the room again.!!!  Do they actually READ what they are signing or just take the lawyers word for it?

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It can be done that way... if you agree on that with the developer.  There would be a tax charged though. There is no reason for not to... but, generally,  purchase contracts are signed privately  as it is a cheaper and fully legal way. The Bank guarantee system has been there since 1968 and that covers legally  all the risks. The duly  reinforcement of that system is in my opinion what needs to be improved.

 

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Yes Maria, it could be made illegal to sign a private property purchase contract. That would force all buyers and sellers to go to the Notary, and, end the black money issue. I don´t think it is enough to offer the option, it must be made law. I know it costs more to do it through the Notary, but, I´m sure many who have lost thousands on illegal builds and had their homes demolished wish they had paid a little extra for the peace of mind.

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Tish, I see Notaries as the biggest single problem in the buying chain. They are the most shabby indivduals on the planet and need to be btought to task on their working practices. They allow all sorts of illegal properties to pass through their expensive offices in exchange for 800 euros´ worth of nothing.

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We have a contract signed in Aug 2006 for completion by end march 2008.

 

The developer doesnot seem to be able to give us a handover date although the work is well developed.

We have made 3 payments and only recieved 2 BGs the last pay ment made in Dec 2007 has no BG.

 

Is there a time limit on the reciept of the BG and what is our position if the handover date extends in definatlely

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