Peninsula threatening to seize UK assets and force purchasers to complete on Medina Elvira golf in Granada

My developer is threatening to take drastic action against all purchasers who cannot complete, and I felt this has to be posted on the public forms on this site to ensure it gets the maximum coverage possible. If this is becomming standard practice in Spain then many purchasers need to be aware of the seriousness of not completing on their property purchase. I have posted this to the developer and completion forums and apologise for cross posting, but feel it is relevant to both forums

I would appreciate any comments regarding the legality of this threat - Can they really do this? There is nothing in the purchase contract to say they can, only that the deposit will be lost in the event of non-completion. Is there a consumer-protection body or organisation in Spain that could help a purchaser such as me faced with this situation?

This is a copy of an email I received from Gaspar Lino, the managing director of Peninsula Project Management today regarding my property completion in Medina Elvira 23 in Granada:

Hi,

the threat  you are referring - as it stands - is not only legal, but actual as well.

It is essential to have a look at your purchase contract in order to check the contents and see what the clauses say to be sure, anyway I will try to answer your question in general terms.

In the purchase contract for a property off plan, the purchaser's main obligation is to pay the price and the developer's main obligation is to deliver the property with all the necessary permissions and documents. The delivered property should also be according to the contract in general terms.

Under Spanish Law the party who complies with the contract and fulfils his obligation is entitled to EITHER FORCE COMPLIANCE OR CANCEL THE CONTRACT. It is an OPTION, unless expressly estated in the contract that the developer waives one of these options, both stand. 

In this case, it seems that the Developer has got the First Occupancy Permission and we could also assume that the development is already finished and according to the contract. In this case, we can say that the developer has complied with the contract and therefore he can effectively OPT for the so-called "forced completion", which means that he can sue you at the Spanish courts seeking payment of the outstanding price plus costs, OR to cancel the contract. 

The fact that you are living abroad in the UK poses an additional difficulty because they will very possibly have to notify you the writ abroad in order to ensure the executin of the ruling afterwards, but I would like to warn you that there are effective mechanisms to enable enforcement in your country. It will take a little bit longer for the Developer, and probably they will have to spend their moneys in executing the ruling in the UK through a British law firm, but it is perfectly possible. In fact, did you know that the UK government deparments are chasing through the courts property owned by British people in Spain in order to get debts made in the UK paid? it also works the other way.

The process would be in general terms as follows:

- 1st step, the developer sends you a formal request to complete, with an appointment for completion.

- 2nd step, then the developer goes to the Spanish courts and files a writ, stating that you are in breach of contract and requesting forced compliance.

- 3rd step: the court sends the notification abroad through special mechanisms in order for you to be notified. Since you receive the notifcation, you have 20 working days to appear at the spanish court and defence yourself. IF YOU DO NOT DO IT, YOU WILL BE IN A SPECIAL SITUATION AND CALLED "REBEL", which means that no more notifications shall be sent until the ruling and you won't know what's going on until the end. It goes without saying that THE DEVELOPER WILL VERY PROBABLY ACHIEVE A FAVOURABLE RULING VERY QUICKLY, AS THEIR ALLEGATIONS AND PROOFS WILL BE THE ONLY ONES THEY SHALL TAKE INTO ACCOUNT.  for instance, if they had requested more than they were entitled to, you would not be able to discuss that.

- 4th step:   Once there is a ruling and you have been nofified thereof, then there is a time to appeal; if no appeal is submitted then the ruling is firm and definitive, which means you cannot fight it anymore;

- 5th Step: The developer shall contact a British law firm to have the ruling executed by the UK courts.This may lead to the seize of bank account saldos and other unpleasant consequences.

Consequently, it would be wise to consider that the developer can actually do this. Another question is if he is really interested in doing it or not, or if they have money to do it or not - it could be a bluff!. Please note that court action implies paying money in advance to start the process, and if this is applied to many purchasers the initial costs are going to be high. As an alternative, it is possible to approach the developer and try to reach a friendly agreement which would settle this situation.

Finally, the threats are considered  illegal under Spanish law when they refer to harms that they will cause in things like the phisical integrity, the honor, etc, such us "if you do not complete we're gonna kill you" and that sort of things. Reading the letter, I personally think that it is a warning of what could happen - and from what you have seen, it is for real - and also a reminder of obligations, and as such it is perfectly legal. Consumers laws shall not protect you to this extent.     

I hope the above helps. My suggestion would be to check the contract and your personal situation and decide then if there is a chance to reach an agreement with the developer. For that, we stay at your disposal.

looking at the communications on this page - what about the people such as us who have done everything above board and the developer doesn't complete the contract. We have lost £20,000.00 and we have heard that the builder is in jail, but where are our rights?

the agents say they can give us another development, but we want our money back, but are being told we will never get it!

seems to me that the Spanish law is only suiting one side

looking at the communications on this page - what about the people such as us who have done everything above board and the developer doesn't complete the contract. We have lost £20,000.00 and we have heard that the builder is in jail, but where are our rights?

the agents say they can give us another development, but we want our money back, but are being told we will never get it!

seems to me that the Spanish law is only suiting one side

looking at the communications on this page - what about the people such as us who have done everything above board and the developer doesn't complete the contract. We have lost £20,000.00 and we have heard that the builder is in jail, but where are our rights?

the agents say they can give us another development, but we want our money back, but are being told we will never get it!

seems to me that the Spanish law is only suiting one side

This is a very real threat lurker of which few off plan purchasers are aware. This is yet another reason on why a Licence of First Occupation is so important.

We've gone over the matter of forced completion on this thread.

As from the time a developer attains the Licence of First Occupation as per art 1504 of the Spanish Civil Code he will communicate with the purchaser by means of a registered letter to inform him of a day and time of completion before a certain Notary public.

Failure to comply may result in the developer either witholding part or all the stage payments or else filing a lawsuit against the off plan purchaser demanding contractual fulfilment i.e. that he closes on the property. The latter would be a forced completion. 

As highlighted in our article on 10 reasons why your court case against a Spanish developer may be thrown out of Court, it is not recommendable at all to sue a developer once the LFO has been attained by them as the chances in general are very slim.

Which is why a LFO is a major milestone in the conveyance procedure and often marks the inflection point. A LFO means the property has been delivered legally according to our national laws.

As our colleague Fairway lawyers rightly points out Spanish judges are unsympathetic with speculators whove got their fingers burnt (property flippers). Which is why a lawyer will always try to portray his client as a consumer subject to Consumer Law protection. i.e. is unable to complete because of the change in financial circumstances brought about by the credit crunch and cannot raise a mortgage loan any longer or not enough to cover completion.

As the developer rightly points out, this matter is to be taken very seriously and there's little point in ducking one's head into the sand hoping the problem will go away by itself. Some developers may sue you, some won't; that's a gamble you take if you decide to remain silent.

A Private Purchase Contract binds both parties. This is a delicate issue on which one should take professional advice from a Spanish lawyer. 

Dear Law Bird Colleague:

Rebus sic stantibus and related institutions by which ghood faith in protected at every stage of the contract is not a matter of Consumer Law but a matter of General Principle of Contract and Law and even general Law.

I can send to you Law Provisiond, Court case Law and doctrine if you want. We need to fight for our clients to not be opressed by the present circumsntances arising for the credit crunch!

I would very kindly welcomea conversation with you on this.

Are you coming to London for the conference of English-Spanish lawyers?

Best regards,

MAria

Amazing!  Peninsula promoted El Balcon Alcaucin - we put down a deposit in Sept 05, nothing built and having to go to court.   Peninsula cut all contact with the builder and they made no contact, ignored many emails and were silent!!!!! Oh tell a lie one letter received in Dec 08 and a Christmas card. They offered no options and washed hands of everybody.

Taste of own medicine does not seem to Mr lino's liking.

Dear María,

No, unfortunately we won't be attending the conference held at London.

As you write, these are difficult times and we must fight hard on behalf of our clients.

Let's hope this will all pass soon.

I hope you enjoy the gathering.

Best regards,

Raymundo Larraín Nesbitt

Hello Lucydog. I have received so many emails about this subject. Please do not accept that all is lost. So many people give up because they just do not know which way to turn or who to believe. I am presently assisting a UK family who are in a similar situation. they were going to walk away from their  aval bancario and let the bank keep over 50.000 euros. This is a disgrace. I have encouraged them and answered their many questions. They are now meeting with the lawyer that acted on the purchase to cancel the contract. They will then have many months of heartache and hard work but hopefully will not give up. With respect can I just tell everyone out there that considering buying a property to double and treble check their contracts. I have a contract which the purchasers lawyer allowed them to sign. I am not a lawyer but read it through at home. It made my hair curl. It is disgraceful and totally unacceptable that this has been allowed to flourish. Basta ya is the Spainish saying. (enought now)

The banks making which are making it so difficult for purchasers to be reimbursed with the money they have paid for bank guarantees ought to be ashamed. It is your money fight for it.

There are enough of you out there to fight against this. How could the developers afford to take you all to court.

Hi Lucydog,

I agree with myra cecilia, you cannot be obliged to accept something different to the property you wanted to purchase.  You should try to fight for your rights, as no one - neither the politicians nor the Administration - are going to do it for you.

Dear Raymundo: I will tell you about the conference and will pass notes to you.

Myra: very well said! We need to fight. No capitulations!

Fairway: Do you also want the notes of the conference.... or... are you coming?

Have a good night.... need to say I have enjoyed the city a lot! Amazing junction of people from all over the world!

Gracias María.

Un saludo cordial,

Raymundo

De nada Raymundo... sera un placer.

Maria

Thanks very much for the replies on this, it's very much appreciated

Ok so from the advice it is clear that Peninsula can do this. It also seems clear that if you are not a professional investor / speculator and you are genuinely not able to complete for financial reasons, then you are protected by general consumer law and any such legal action to force you to complete would be significantly weakened

Would this be generally true?

Would it also be true that if the developer sues, then they cannot attempt to re-sell the apartment during this process? They would then be liable for their loans on the apartment during this time

Would it also be true that even if they won a case, the purchaser could take it to appeal and potentially double the time it takes to finish the legal action, increasing the developer's legal fees and debt payments before the matter was resolved?

If a developer is suing their clients for forced completion then they must have decided they cannot re-sell the apartment, even after discounting it by the amount of the deposit they have retained and any further margin that remains in the resale value of the property - otherwise they would just resell the apartment and keep the deposit money

It also seems likely they are under pressure from the bank to pay off the debts on the unsold properties

Are any developers in this position starting to keep unsold units and rent them out? This seems to be a valid option and to my mind would be more financially rewarding to the developer than persuing a client who cannot afford to complete through the courts and possibly through an appeal for months and months during which they cannot rent or try to resell the property and have to maintain the loan payments on them. I believe a lot of UK developers are doing this to avoid bankruptcy

I just can't see the point right now of a developer declaring war and going to court, unless their client is filthy rich and just decided they didn't want the apartment anymore. It simply doesn't add up to me as a good business decision

Any thoughts on this would be much appreciated

Hi Lurker,

just a couple of points.

"Ok so from the advice it is clear that Peninsula can do this. " Yes, technically it is possible. A different question is wether they would proceed or not, taking into account the costs and the time.

 "It also seems clear that if you are not a professional investor / speculator and you are genuinely not able to complete for financial reasons, then you are protected by general consumer law and any such legal action to force you to complete would be significantly weakened". This is arguable; under general Spanish contract law - consumers' law does not provide for such clause specifically -  there is a legal concept called "rebus sic stantibus clause", which has been produced by the courts but which is not laid down in any specific provision which outlines the cases where this is applicable. Such rebus sic stantibus clause works as an implicit condition to the contract and provides for the MODIFICATION - NOT cancellation - of the contract when the basis for the contract have changed dramatically and unexpectedly, out of proportion, and this change gives rise to an absolute unbalance of the respective obligations of the parties, which is detrimental to one of them, and there is no other way to sort out the situation. 

The main problem when using this legal action is that - as said above - there is no legal provision which establishes clearly the cases and the courts mean that its use is absolutely exceptional; please bear in mind that this rebus sic stantibus line was started after the Spanish civil war when there was a huge devaluation of the Spanish peseta, and the courts allowed that the prices on the contracts signed BEFORE the war were adapted to the current situation AFTER the war. Since then, the courts have applied this very very restrictively, therefore its applicability cannot be taken for granted. For these reasons, I would recommend you to be very cautious if the only defence is just this, as there are no clear lines and there is a high risk. As an alternative I would prefer a friendly agreement better than playing this card.

"Would it also be true that if the developer sues, then they cannot attempt to re-sell the apartment during this process? They would then be liable for their loans on the apartment during this time". Well, in principle if the contract is not formally cancelled the developer cannot sell it; if the developer opts for the "forced compliance" at court , he cannot sell in the meantime either, and anyway he will be obliged to pay the mortgage quotes whilst the court process is ongoing; however, the other side of the coin is that the developer is entitled to get compensation for the damages as well, so that the purchaser might be obliged to pay not only the price, but also all the missing mortgage quotes since the breach of contract.  In other words: if you loose the developer's credit could be the outstanding price plus the costs including interest and also the mortgage quotes. Finally, we cannot exclude that the Developer tries seizures as "provisory measures"...

"Would it also be true that even if they won a case, the purchaser could take it to appeal and potentially double the time it takes to finish the legal action, increasing the developer's legal fees and debt payments before the matter was resolved?" Good point. The time average depends on how overloaded the court is, so that in general terms an ordinary process may take 8 months -1 year; and the appeal might take 6 months or more, depending on the fact that proofs are to be done in second instance or not... The fact is that under Spanish law the appeal does not paralize the possibility of forcing the so-called "provisory execution". An example: A sues B for 30.000, and gets an award of 20.000,00 € in the first instance; B appeals; A can request the courts to start provisory execution against A for 20.000 €... However, in my opinion, this is applicable only to the execution process IN SPAIN, as the special process to execute the rulings abroad is subject to confirmation of the ruling as definitive...and this does not happen whilst the appeal is ongoing. Please take into account that the developer may request at court seizures as provisory measures...

"Are any developers in this position starting to keep unsold units and rent them out?" Yes, many are negotiating rental agreements with option to purchase, and option to purchase agreements to sell unsold units. it depends on how wealthy the developer is and how advanced the building process is.   

I hope the above clarifies the issue.

Yours sincerely,

Many thanks for the replies

So I understand that 'rebus sic stantibus' is a clause in General Contract Law you could try to use if claiming 'force majeure' over a change in personal circumstances, and you could use it to effect a change in the contract and not necessarily a cancellation of the contract although it is by no means guaranteed. There was a bit of confusion over this in the posts - if this is not Consumer law then would it make any difference if your lawyer presented you as a consumer or a professional investor in court?

What benefit or protection can Consumer Law provide (if any)?

Hi Lurker,

I try to answer your questions:

- "So I understand that 'rebus sic stantibus' is a clause in General Contract Law you could try to use if claiming 'force majeure' over a change in personal circumstances": No, you are mixing two different things, the force majeure is one thing and the rebus sic stantibus is something different. The only coincidence is that in both cases there is an unexpected change of circumstances, whose reasons are external, which affects the contract, but that's all. 

Furthermore, the change of personal circumstances alone is not currently considered as valid in order to invoke the rebus sic stantibus, there has to be an external and extraordinary reason for that change. In your case, maybe the change of policy of the banks, the so-called credit crunch, so that you would have tried to get a mortgage to purchase the property with 20 banks and the banks simply refuse to grant it to you because they have changed their policy and now they do not accept mortgages to non residents... if it is just that you have lost your savings, that you are divorcing or simply that you have been fired, that's not valid because that could have happened before and is therefore a normal situation to take into account. 

However, you carry the BURDEN OF PROOF of those extraordinary circumstances, so that in my opinion it would be necessary that you apply for a mortgage with several banks and that those banks agreed to appear at court attesting that by reasons beyond your control you are no longer able to get the mortgage you were qualified at the beginning, when the contract was signed. Provided that the vendor sues you in order to force completion, this could give you a chance to paralize the completion or change the payment conditions, but no more.

Finally, I would like to stress the point that the courts are very very restrictive, so that getting a ruling with the rebus sic stantibus is extraodinary. In many cases whereby a devaluation of the currency has produced an imbalance, the courts have refused the application of the rebus sic stantibus by saying that both parties could have foreseen this and they should have included a clause in the contract in order to cover that situation. In other words, "the rebus sic stantibus does not aim at covering the parties' lack of prevision." They put a high standard, yes, therefore I recommend a friendly agreement.  

- "and you could use it to effect a change in the contract and not necessarily a cancellation of the contract although it is by no means guaranteed."

 I would like to underline once more time that the application of the rebus sic stantibus clause means MAINTAINING THE CONTRACT, by changing something and moderating the terms of the contract according to good faith principles. And also that it is applied very very restrictively...that's the reason why I have always suggested a friendly agreement as alternative. The maximum I would expect from the rebus sic stantibus application is a new set of the deadline to complete, and/or a different payment schedule, or something like that. But not a cancellation of the contract.

Please note that the rebus sic stantibus has allowed the judges to maintain and modify the contract in extrem cases where the change of circumstances has given rise to an absolute lack of balance; once the Spanish Civil War came to an end, the value of the republican money was 0 by law. Those who had entered into contracts where the payment was agreed in republican money found themselves facing a writ whereby the purchasers wanted to force them to complete "for nothing", and the Supreme Court came to alter the price of the operation in order to adapt it to the later circunstances: prices were updated, and contracts were maintained. No contract was cancelled.

 - "if this is not Consumer law then would it make any difference if your lawyer presented you as a consumer or a professional investor in court?"

Please see that we have got different rules depending on the parties who sign the contract: when the contract is between two individuals, only general civil law plays; when the contract is made between business men, the commercial law rules apply and in many cases they substitute and modify the civil law; finally, if the contract is between a professional or business man and a consumer who is going to be the ultimate user, then consumers law plays with civil law.

The courts usually take into consideration the personal position and knowledge of the person who enters into a contract in order to determine if they can be considered as consumers or not. Consumers law is based on the idea that the consumer is the less protected party in a contract and therefore the special Consum laws try to defend the consumers by granting them the possibility to render null and void the clauses of the contracts when they are abusive, among other things; this does not happen when you are not a consumer: the same clause can be valid if you are not a consumer and invalid if you're.

Consequently, the difference between being a consumer or not is the applicability - or not  - of consumers' law with their special protection. And this is worthy.

- "What benefit or protection can Consumer Law provide (if any)?"

This depends on the grounds for the defense; if you are going to attack the contract for developer's essential lack of compliance then consumers law is an asset to take into account, as it contains special provisions to protect purchasers. If the publicity has been misleading you could attack that point through consumers law and publicity law as well. If you use just the rebus sic stantibus, in my opinion you do not need consumers law, strictly speaking. However, given that the rebus sic stantibus idea comes from 1944 and that the courts are very very restrictive when using it, I would try to convince the courts that consumers' law would lead to be less restrictive.

** EDITED - Advertising **

Our Supreme Court has ruled for the cancellation of contracts due to impossible fulfilment of the obligations. In these cases, the High Court  interpret the existence of a tacit condition that not being met, not being happened... makes the contract unpossible.

The draft model of Contract which was advised back in 2000 by The National Institute for Consum , part of the  National Department of Health and Consum, states in its recommended contract model  for off plan purchases:

The buyer can opt for the cancellation of the contract, once he knows of the  non approval of the financing  by the Bank, being entitled to the refund of all the amounts paid. 

http://www.eyeonspain.com/blogs/costaluz/482/credit-crunch-times-can-play-in-favour-of-consumers-why-not.aspx