Advice required re non completion of amenities. Can we withdraw from contract due to this?

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10 Apr 2009 12:00 AM by kdr45 Star rating. 9 posts Send private message

We have purchased an off plan apartment in the Costa Calida area which should be ready around September this year.    When we visited the site in 2006 we were promised that all amenities would be ready for us moving in (although there is nothing in the contract to confirm this!!)   However we received an e-mail from the developers in May 2007 confirming that "the south course, a bar, restaurant and supermarket would all be available for the first people moving in.

We have sent a couple of e-mails to the developers recently asking for an update on how these amenities are coming on as we know from this site that they have yet to be started.      We have received no replies.

This property was sold to us on the understanding that we would be able to move in and would have all the above amenities at our disposal and the developers have confirmed it would be.     It now appears this is not the case.   

The developers have to complete the apartment by September, 2009 as per our contract.   If at that stage the apartment is ready and the amenities are not would we be able to withdraw from this due to the fact they have advised us, in writing, that these amenities would be ready.

Any advice would be greatly appreciated.

kdr





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10 Apr 2009 3:10 PM by inspectahomespain Star rating in Orihuela Costa, Spai.... 2417 posts Send private message

Vip Supporter

Not having things in writig makes that a more difficult situation

Can you advise the name of the development and builder



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10 Apr 2009 3:39 PM by kdr45 Star rating. 9 posts Send private message

Sorry , bit confused by your reply, we do have things in writing which clearly state the amenities would be ready for us moving in.   I was hoping this would make the situation clearer not more difficult.

Thanks





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10 Apr 2009 3:48 PM by inspectahomespain Star rating in Orihuela Costa, Spai.... 2417 posts Send private message

Vip Supporter

Can you advise who the builder and development is as this can have a bearing on the situation

There have been recent cases, as with Polaris where people had beed told that the facilitues would be there

Any action based on completion can be lengthy to resolve as the law strickly applies to the conditions of the written contract and the fact that providing the property is completed, and the Cerificate of Habitation is issued, then legally you have to complete

What you currently don´t have it in writing is I believe in the contract plus it depends who has made the statement regarding the finished facilities the company whose name is on the contract or the agent

On one site recently in Alicante the agent was merrily telling people the facilities would be finished and the developer denied everything and advised that the agent had no authority to make any statements

 



_______________________
Roy Howitt Independent Property Consultant www.sonrisaproperties.com www.snaggingspain.com WE CAN FIND YOUR DREAM HOME 627 955 748



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10 Apr 2009 4:22 PM by pepino Star rating. 14 posts Send private message

I think you will find that emails are not admissible as evidence in court.  And you have said that it was not in the contract that you signed so you didn't make it a condition then.  I wouldn't hold out much hope. 

Are they likely to complete on time?  Again I'm not certain but I think that they have three months' grace over the contract date after which you can cancel.





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11 Apr 2009 1:18 AM by Rixxy Star rating in San Pedro. 2010 posts Send private message

Rixxy´s avatar

As the others have said, the email wont prove anything, its what was in your contract that stands. However, promotional materials can be taken into account and I know of succesful cases where it has been taken into consideration. Each case is different.

Do not complete until you have the licence of first occupation as without that you cannot be legally connected to the services you need - many people comleted without this in the past and have either been connected to the developers supply, meaning thier properties are illegal until the situation changes, or have been left without any services as the developer pulls out!

It is illegal to be forced into completion without the LFO and if your lawyer tells you otherwise find another lawyer.

You may have to complete even if the grounds havent finished, supermarket etc unless you want to walk away from your deposit, but only after receiving the lfo



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11 Apr 2009 11:14 AM by kdr45 Star rating. 9 posts Send private message

I'm so disappointed by al this.    I really thought that the e-mail we hold would confirm all the promises that they made prior to us signing the contract but I feel that we have been foolish in accepting their promises at face value.   If only we knew what was going to happen!!!     The developers (not an agent) have, until recently, always confirmed everything but now we are getting no response from them.

I know from various posts on here that people have been successful in arguing their cases re promotional material etc so I think it may be worth a try.      

Does anyone know how long it takes to get the LFO and can the developers only apply for this once the build is complete.

Many thanks

 

 





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11 Apr 2009 12:04 PM by Rixxy Star rating in San Pedro. 2010 posts Send private message

Rixxy´s avatar

Yes the build needs to be finished in accordance to the specification accepted by the town hall in the planning licence. After that it can take a long time, most developers try to get it quickly as it is only then they get the rest of the money and pay off their mortgage.

You really need to take legal advice - is your lawyer not giving you any help here?



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11 Apr 2009 4:40 PM by kdr45 Star rating. 9 posts Send private message

Below is the advice we have received from our lawyers.    I'm even more confused now.    They say that April 2009 is the estimated completion date but we should wait until September 2009 before executing the Bank Guarantee.

Does this make sense to anybody?

Many thanks

In your case, you won't need to go to Court because if they are not in the position to complete the property by September 2009, they will need to refund your money and if they do not do it you will be able to get it by executing the bank guarantee.
 
Regarding the date in the bank guarantee, it is true that says April 2009 as an estimated completion date for completion. If you want, we can try to execute the bank guarantee at that moment, but probably they are going to reject it based in the fact that it is a necessary requirement the non fulfilment of the contract by the builder. Executing a bank guarantee, it is expensive: 2.000 euros plus VAT, because there are some official requests to be done and paid (first to the builder and secondly to the bank); so my advice is to wait until September 2.009 to iniciate the execution of the bank guarantee.
 




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11 Apr 2009 4:44 PM by inspectahomespain Star rating in Orihuela Costa, Spai.... 2417 posts Send private message

Vip Supporter

This is pain and most contracts the builder is allowed to overun on the build by 6 months, eg to September, on the agreed contract completion date, and of the course the same applies to the facilities

The property however legal for completion until tbhe Certificate of Habitation is issued 



_______________________
Roy Howitt Independent Property Consultant www.sonrisaproperties.com www.snaggingspain.com WE CAN FIND YOUR DREAM HOME 627 955 748



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11 Apr 2009 5:08 PM by kdr45 Star rating. 9 posts Send private message

Does that mean the Certificate of Habitation  has to be issued for September 2009 and it it's not, then can we execute the Bank Guarantee?

Many thanks





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11 Apr 2009 5:22 PM by inspectahomespain Star rating in Orihuela Costa, Spai.... 2417 posts Send private message

Vip Supporter

Yes for the property to be LEGALLY complete the COH has to be issued



_______________________
Roy Howitt Independent Property Consultant www.sonrisaproperties.com www.snaggingspain.com WE CAN FIND YOUR DREAM HOME 627 955 748



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11 Apr 2009 5:27 PM by kdr45 Star rating. 9 posts Send private message

That's good news.   Thanks for your help.

 





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11 Apr 2009 5:36 PM by pepino Star rating. 14 posts Send private message

The promoter has to be in a position to go to the notary and complete the escritura by a given date.  In your case you are being advised September 2009.  To do that he has to have completed the building works on your property and, as others have said, to have obtained the licencia de primera ocupacion.  That covers not just the completion of your unit but infrastructure and landscaping as specified in the approved plans.   So keep monitoring the position and, a few weeks before the deadline chase your solicitor.  He may need to book a date at the notary so that the promoter is seen to fail to fulfil the contract.





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11 Apr 2009 5:42 PM by inspectahomespain Star rating in Orihuela Costa, Spai.... 2417 posts Send private message

Vip Supporter

Just to clarify the whole of the development doesn´t have to be completed to obtain a COH as they are often issued for individual phases.Your pool, and phase could be finished but they still could be building the blocks next to yours with all of the resulting noise and disruption or even the main site access roads

On villas it can even be that they issue them for individual properties

 



_______________________
Roy Howitt Independent Property Consultant www.sonrisaproperties.com www.snaggingspain.com WE CAN FIND YOUR DREAM HOME 627 955 748



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11 Apr 2009 11:24 PM by kernow24 Star rating. 105 posts Send private message

Be sure who promised the facilities as we have had the same problem with landscapeing in a development we have pruchased on.  This was advertized , and promised, with lots of promotional pictures etc and looking really lovely.  The promoter then told us the developer was going to carry out the landscapping once all the houses were complete but since then the promoter has gone in to liquidation and the developer has told us that it was the promoter that had promised to landscape.  The outside landscapping is not included on our contract, only on promotinal materiel and emails sent to us by the promoter!!!  We are left with NO landscapeing and the site looks like a building site a year from completion and there is no way it will now be done!!!  Who will want to live or holiday in a property like this?

Be sure you get all the information before completion.





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12 Apr 2009 11:31 AM by Fairway Lawyers Star rating. 48 posts Send private message

Hi,

It would seem that the developer is in breach of contract and therefore IN GENERAL TERMS you can force him to comply with the terms of the contract and also to provide for compensation. You carry the BURDEN OF PROOF, which means that you have to prove that the Developer is in default. 

AS TO THE CANCELLATION OF THE CONTRACT, the courts allow the cancellation of the contract and the refusal to complete in the event ESSENTIAL OBLIGATIONS are not fulfilled by the other party. In other words, NOT ALL BREACH OF CONTRACT SITUATIONS GIVE RIGHT TO CANCELLATION, ONLY BREACH OF ESSENTIAL OBLIGATIONS.

However, the term ESSENTIAL OBLIGATIONS gives rise to speculation, because there is no uniform line on this point. It is currently admitted that the delivery of the property is essential part of the obligation, however the lack of delivery of the amenities would be arguable ...

It would be necessary to have a look at your contract AND ALSO TO THE PUBLICITY in order to give you a proper reply. If you were interested, please send me a private post or write to info@fairwaylawyers.com .

TO SUM UP:

a.- you have the right to sue for compliance of the contract and also seek compensation.

b.- the cancellation of contract is a legal remedy only for breach of essential obligations. Without a look at the publicity and the contract wording I cannot tell you what the chances are.

c.- in some cases it is possible to refuse and put off completion on the basis of non compliance with the contract. However, as in b, it would be necessary to have a look at the publcity and the contract. 

 

Yours





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22 Apr 2009 10:29 AM by mariadecastro Star rating in Algeciras (Cadiz). 9402 posts Send private message

mariadecastro´s avatar

I am adding some comments below in bold green:

We have purchased an off plan apartment in the Costa Calida area which should be ready around  ?  What is the completion deadline writen in the contract? September this year.    When we visited the site in 2006 we were promised that all amenities would be ready for us moving in (although there is nothing in the contract to confirm this!!) do you keep publicity of those amenities?   However we received an e-mail from the developers in May 2007 confirming that "the south course, a bar, restaurant and supermarket would all be available for the first people moving in. Are you keeping that writing it?

We have sent a couple of e-mails to the developers recently asking for an update on how these amenities are coming on as we know from this site that they have yet to be started.  Keep those letters.     We have received no replies.

This property was sold to us on the understanding that we would be able to move in and would have all the above amenities at our disposal and the developers have confirmed it would be.     It now appears this is not the case.   

The developers have to complete the apartment by September, 2009 as per our contract.   If at that stage the apartment is ready and the amenities are not would we be able to withdraw from this due to the fact they have advised us, in writing, that these amenities would be ready. Of course yes:

Publicity - Part Of The Contract

 

Legal SpainAre you buying a house and the unit does not correspond to the advertised one?

The following article explains the legal grounds that allow requiring the correspondence of the contractual object with the object offered by means of any kind of advertisement.

The article 3.2 as well as the article 3.1 of the Royal Decree (RD) 515/1989, April 21, about Protection of Consumers in the moment of providing the information while sales contract and dwelling renting defends the principle of honesty in the matters of offer, promotion and advertising of rent and sales properties, prohibiting the deceitful advertisement.  

The article 3.2 is valid in all the territory of the State and it can not be ignored by the Autonomous Communities, which have assumed the full jurisdictional capacity of defence of the consumers and users in accord with the additional clause 2.RD 515/1989, April 21, 1989.

In its turn, the article 3.2.RD 515/1989, April 21, 1989 extracts the consequences from the mentioned principle on having established, that the buyer or the tenant of a dwelling would be able to demand as much information, characteristics and conditions relative to the construction of the dwelling, its place, services and facilities, acquisition, use and payment, as there were included in the offer, promotion and publicity of the same ones, “even if they do not appear expressly in the celebrated contract”.  With general character, this article supports and expands the Law 26/1984 from July 1984, which proclaims, that the content of publicity would be exigible by consumers and users even if it does not appear expressly in the celebrated contract, document or received voucher.

We can not help mentioning the Judgment of the Supreme Court (JSC), ( source of Law in Spanish Legal System) Courtroom num.1 from January 27, 1977, already classical in this matter, with its argument of the same compulsory force of the exposed in the offer, publicity or propaganda in general.

The article under discussion is the result of the reiterated jurisprudential doctrine, according to which, the promotion of the selling of housings is not fulfilled delivering only the housing, as when the buyer takes possession of the same one, but this obligation also spreads to the rest of the incidental elements, with which the housing is being defined in the contract, and even in the papers given to the buyer before the signing of the contract, such as plans, publicity, building specifications or project of execution, papers, that is necessary to understand,  that form a part of the contractual content.

In this way, it is confirmed that the seller has an obligation to fulfil the exposed in his advertising brochures, since the influence of publicity is essential in the moment, when the consumer decides whether to buy. Due to this fact, the content of publicity forms a part of the contract (JSC, Courtroom num.1 of November 8, 1996 and JSC, Courtroom num.1 of June 15, 2000, between others). JSC, Courtroom num.1of July 21, 1993 indicates, that the building company must finish the construction so, that it should assemble the characteristics offered publicly to future buyers.

The doctrine explained here allows stating that the project of execution plays an objectively important role for the promoter/seller each time, when it performs the descriptive function of the contractual object, since it makes compulsory for the promoter to construct the sold dwellings in accordance with it. This is the compulsory force of the project, as of the document of reference, which would derive from the arranged in the article 2 of the Law 26/1984 of July 19, 1984, that defends the information as basic right of the consumer. And the article 8 of the Law 26/1984 of July 19, 1984 recognizes the compulsory force of the offer, promotion and publicity.

The RD 515/1989 of April 29, 1989 expands this regulation about protection of the consumers, because it indicates, that at the moment when lease or sales contract of a dwelling is being signed, the information, characteristics and conditions relative to the contracting of a dwelling, which find place in the offer, promotion and publicity would be exigible, even if they do not appear expressly in the celebrated contract. Judgment of Regional High Court of Guadalajara, 10 of April, 2003. 

Really, the jurisprudence has repeatedly commented on the effects of publicity in determining the compulsory content of the contracts. And it affirms, that publicity of an object, especially, if the object still does not exist, forms an essential part of the offer, as it is recognizable by the doctrine and proclaimed by the article 8. Law 26/1984 of July 19, 1984, a General Law for the Defense of the Consumers and Users, which generates responsibility of the offerer. JSC, Courtroom num.1, on the 1st of September 29, 2004.

By continuing we give you another example supporting the statement made above.     JSC, Courtroom num.1 of November 8, 1996 affirms, that knowing the compulsory force of publicity, the General Law for the Defense of the Consumers and Users and general articles about obligations and contracts,  Regional High Court had no right to ignore the thirty five brochures of the advertising, that were received together with the court files. And if the Regional High Court had borne in mind these brochures, its evaluation of the proof results to be, when less, illogical, since the brochures are documents, that contain advertising activity, with the intention of attracting the clients, and a true offer is being clearly constituted on their pages.

As the Regional High Court failed to understand it in this way, it infringed the article 57 of the Code of Commerce, the principle of the good faith and the article 1283 of the Civil Code (CC), because the publicity forms part of these contracts. In opposite case, it should have been expressively said in the contracts, that the content of the advertising brochures remained outside the contract. To come to this conclusion, it is not necessary that the promoter would have made use of trick or fraud, since the article 8 of the Law 26/1984 of July 19, 1984 does not require this. The indicated article becomes infringed too, specially bearing in mind, that the interpretation is related to the RD 515/1989 of April 21, 1989.

The mentioned JSC, Courtroom num.1 of November 8, 1996 puts into interrelation the next assumptions:

- JSC, Courtroom num.1 of January 27, 1977, which protects the buyer or buyer of a flat who, on having given his conformity in the acquisition, " was guided by " the printed leaflets of propaganda spread by the building company ", since " the private contract signed by the parts was very sparing in descriptive elements, and it was logical ... that the buyer of the flat relied on the promised in the brochures of propaganda, in accordance with the principle of good faith proclaimed in the article 1258 of the CC, and believed in their content, finding it compulsory for the company”, moreover, the planes were in tune with the public line of promises and with the requirements of town planning.

- JSC, Courtroom num.1 of February 19, 1981 , which estimated that the sports ground and the swimming pool were included in the contract since “the public offer of the sale included them” and what have served without any doubt as public and general offer, and as long as it is not expressively excluded, remains estimated as a base of this offer, and therefore in noway it supposes an erroneous interpretation of the article 1253 of the CC in relation to the article  1283 of the CC.

-JSC, Courtroom num.1 of April 5, 1999, which estimated nonperformance, since in the publicity that the building company used to capture buyers, there existed an area of recreation and free time, contemplated in the Technical Project, but in this zone of recreation, three housings were unduly constructed.

-JSC, Courtroom num.1 of November 7, 1988, which says, that publicity of an object, especially, if the object still does not exist, forms an essential part of the offer, as it is recognizable by the doctrine and proclaimed by the article 8 of the Law 26/1984 of July 19, 1984, and generates responsibility of the offerer.

-JSC, Courtroom num.1 of January 20, 1989, which exams the description of building specifications, that the builder-developer put in the commercials, and affirms, “that on one hand, it allows to the Court to come to conclusion, that the influence of publicity on the conduct and will of the actors” plays a decisive role at the moment of contracting, and on the other hand, it reveals the existence of shortcomings and omission of details in the terminated work, with regard to the offered publicly and contemplated in the description of building specifications and corresponding contracts. "

-Finally, the JSC Courtroom num.1 of July 21, 1993 indicates, that the building company must finish the construction so, that it should assemble the characteristics offered publicly to future buyers.

Written by

Maria de Castro

Lawyer

Maria de Castro is a Spanish Lawyer and the Director of the Law Firm www.costaluzlawyers.es.

She specializes in advising private foreigners in Spain and making the Spanish adventure a good dream. You can contact her at mldecastro@costaluzlawyers.es 



_______________________
El blog de Maria


 

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

 

Any advice would be greatly appreciated.

kdr



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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22 Apr 2009 2:35 PM by kdr45 Star rating. 9 posts Send private message

Hi Maria

I've sent you a PM regarding this.

Many thanks

 





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