ADVICE / HELP PLEASE: Reclaiming instalment payments & interest

Since 2006 , I've been purchasing an off plan property in Huelva province and have paid 4 instalments to date.  Completion was due in March 2008, but such date could be extended by 3 months for justified causes of delay beyond control of the seller. 

There is a bank guarantee in place and the contract states that "quantities recieved on account of the total price shall be guaranteed in accordance with the law with [bank/address/account number] undertaking to deliver the corresponding bank guarantee within one month of the collection thereof .................. if construction does not end on the deadlines agreed, the seller undertakes to return to the purchaser all monies received on account of the price, plus aby corresponding legal interest".

I've instructed my solicitor to execute the bank guarantee but understand that if there is no response from the developer or bank, the matter will need referral to the courts and there is no certainty that judgement would be given in my favour.  Even if judgement was given in my favour, I may be unable to reclaim monies paid and obliged tp proceed with the purchase in return for receipt of some financial damages.

I'm struggling to understand how wording which is so black and white (under English law) can be interpreted differently in Spain.

Any advice or reassurances would be welcome.

If the contract have a clear completion date which has been not met and there is no First Occupation License in place ( ask your lawyer to prove? there is no FOL in place... fore instance.. by sending a fax or burofax to the Local Council asking for that information) you should not worry, because there are almost total possibilities of the case being won in Courts with judicial costs imposed to the Bank.

Oh Maria, if only...

As you are aware, for many of us our experiences have been very different.  In my case, three court hearings and a review taking three and a half years.  We have exhausted the legal processes against the bank despite having a valid BG and doing everything that should and could have been done.  We are left with no property - it's an illegal build - and no hope of recovering our money.  Furthermore our pockets are empty

This is why the Petition to the Governor of the Bank of Spain has been drawn up.

If you haven't yet signed please do so.  You can find it at:

http://www.gopetition.com/petitions/spanishbankguarantees.html

The petition is to be sent very shortly. 

Please don't delay.

ruth

Ruth's situation is typical of the situation hundreds of people have and are experiencing at the hands of the Spanish judicial system. Whatever the laws, the Courts do not abide by them or implement them.

Maria, Ruth & I  use the same lawyer. You know him and  say you hold him in high regard. Despite his best efforts, he cannot win against the Judges who do not comply to your laws. How and why do they get away with it? 

We recently had a case heard (dec '08) against a corrupt lawyer. We still do not have a result/verdict 6 weeks later!! It wasn't a murder case!  

Maria - Thanks as always for your feedback.  What  would be the situation if the FOL was not in place when the request to execute the bank guarantee was made, but subsequently (during the stand off period with the developer and bank) it was obtained?

ASC

Providing your lawyer had instigated the procedure to execute your BG before the LFO was issued then theoretically  the Bank/court supposedly cannot take that into consideration retrospectively. This was as my lawyer explained to us.   Hope you can make sense of that. I'm sure Maria will explain more eloquently.

What is the position if the Judge finds in your favour, instructs the developer to pay back the deposit plus interest plus costs?

Does this money come from the developer?

Does it need the developer to instruct the Bank or Insurance Company to pay out?

Does the money then come from the Bank/Insurance company?

Who pays the money and in what timescales?

What if the developer/bank/insurance company simply refuse to pay even though the Judge has found in your favour?

Kel

If you are using a Bank Guarantee, then the money comes from the bank. The BG is in effect an insurance. The Bank usually appeals though!! They still have to pay that money into the Court where it is held until the appeal hearing.

IF the developer agrees that the terms of your purchase contract has been breached and he aggrees to compensate you by way of the BG, then no Court procedure would be necessary.  I have never heard of this happening though. They do everything and anything not to pay up!!!!

Thanks Tish, that clears up who pays the money.  So if the developer and bank do not appeal everything should work out OK.

Anyone know what kind of a time limit the Judge would apply for either to appeal against his decision?

Thanks

Kel

I'm pretty sure it is 10 days.