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Legal tip 1369. NEW! WON CASE in FIRST INSTANCE COURT AGAINST BANCO POPULAR FOR OUR CLIENTS WHO PURCHASED OFF-PLAN PROPERTIES FROM THE DEVELOPER HUMA MEDITERRÁNEO S.L. AT ALMANZORA COUNTRY CLUB
24 February 2016

WON CASE in FIRST INSTANCE COURT AGAINST BANCO POPULAR FOR OUR CLIENTS WHO PURCHASED OFF-PLAN PROPERTIES FROM THE DEVELOPER HUMA MEDITERRÁNEO S.L. AT ALMANZORA COUNTRY CLUB

We were extremely pleased to inform our clients today that we had won their case against BANCO POPULAR in the First Instance Court.

The clients paid their off-plan deposits to the developer’s account at BANCO POPULAR.  The clients did not receive individual Guarantees for their off-plan deposits from the developer, Huma Mediterráneo S.L. or from BANCO POPULAR, the Bank to which their off-plan deposit was paid and the Bank that signed a Guarantee Line with the developer.

Re: YOUR CASE AGAINST BANCO POPULAR ESPAÑOL S.A.
PO xxxx/2013

Please find attached the Sentence No. 30/2016 from the First Instance Court No.8 in Murcia.

Your case against BANCO POPULAR ESPAÑOL S.A. has been won.

The final paragraph of the First Instance Sentence delivered on 22 February 2016 and notified on 23 February 2016 states:



“Substantially upholding the Lawsuit filed on behalf of xxxxx & xxxxx, xxxxx & xxxxx, xxxxx & xxxxx against BANCO POPULAR ESPAÑOL S.A., I must condemn the BANCO POPULAR ESPAÑOL S.A. to pay the amounts actually deposited by the plaintiffs in the developers account in Banco Popular on account of the anticipated price for the acquisition of several homes of Huma Mediterraneo S.L., ascending to the conviction of the total amount of xxx,xxx€, plus interest at the rate of 6% per annum as agreed in the Guarantee Policy dated 12 May 2005, starting from the delivery date of the advance payments until payment in full, without the imposition of procedural costs on the defendant”


So BANCO POPULAR ESPAÑOL S.A. is sentenced to refund the total amount of xxx,xxx€, plus interest at the rate of 6% per annum from the date you paid to the developer’s bank account until complete repayment.

There was no imposition of legal costs; therefore each party will pay its own costs.

Interesting statements from the Judge in the Sentence were:

“Banco Popular granted Huma Mediterráneo as of 12 May 2005, two general guarantees for the repayment of amounts paid in advance by buyers plus interest.  In this case the buyers paid to the developers account opened at Banco Popular.

However, as a result of planning irregularities and the declaration of bankruptcy of Huma Mediterráneo S.L., the buyers requested termination of the purchase contract and had claims recognised in the bankruptcy procedure.

Banco Popular claims lack of capacity to be sued as it never issued a guarantee for the funds, individually or collectively.  The bank states that neither the contract nor the law LEY 57/1968 establishes this obligation.  It states that there was no evidence to show that the developer had requested it to issue individual guarantees to the buyers.

If there were doubts regarding the liability of the Bank then the Supreme Court Sentence of 21 December 2015 has set as case law as follows: ‘In the house sales governed by Law 57/1968 credit institutions that receive income from buyers into the promoters account without requiring the opening of a special account and corresponding warranty/guarantee are liable to buyers for the total of the amounts anticipated by the buyers and deposited in the account or accounts that the developer has opened in this organization’.

Nor is it an irrelevant fact of the economic benefit accruing to banks to arrange these transactions, since the obligation to deposit the advance payments into an account opened for that purpose in that entity as consideration involves not only the price of the guarantee, but also the gain or advantage derived from the financing of the property development.

In consideration of this doctrine is to be understood that it is the responsibility of the bank receiving the funds into the developer’s account to require the developer to constitute a specific individual guarantee to cover the amounts paid in advance by each buyer and the lack of requirement by the bank for the developer to issue such individual guarantees may have an impact on the purchaser if the developer breaches its obligations to construct the property.

It is true that this is not a breach of obligations by the bank guarantor, but it is aware from the outset that the granting of the guarantee line creates a legal relationship that produces effects towards a third party, a third party which has the status of consumer, who cannot be adversely affected by the violation of the duties by any of the contracting parties, formed by two business entities.

In short, Banco Popular awarded Huma Mediterraneo a guarantee line for the provision of individual guarantees to various individual homebuyers in the promotion Almanzora Country Club, guaranteeing the amounts paid on account by the buyers of these homes. And then the buyer’s funds were entered in an account of the entity in the name of Huma Mediterraneo SL without the Bank making any inquiry about the reason why any individual certificate of guarantee is not requested for the home buyers.  Therefore, the defendant Bank must respond to the applicants for the sums of money given to the seller as advance payments for the purchase of housing and deposited into the account. 

The defendant bank is ordered to pay interest at 6% as agreed in the General Guarantee Policy issued to Huma Mediterraneo dated 12 May 2005.

With regards to legal costs it can be seen in this case that there were doubts in law regarding the liabilities of the Bank according to LEY 57/1968, since both at the Statement of Defence (26 February 2014) & Preliminary Hearing (17 November 2014) the Supreme Court Sentences dated 30 April, 23 September & 21 December 2015, which now definitively clarify this subject, had not been issued.  Therefore, there is no imposition of legal costs”



BANCO POPULAR has 20 working days from the date of notification of the Sentence, which was 23 February 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Murcia.

If an Appeal is filed by BANCO POPULAR it will be necessary for us to file an Opposition to the Appeal on your behalf.

Vegetable garden and Segura river, Murcia, eastern Spain



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Legal tip 1368. NEW! WON CASE in FIRST INSTANCE COURT AGAINST ASEFA S.A. FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER ENGRAULIS S.L. AT BUENA VISTA DE CORTES DEVELOPMENT
19 February 2016

WON CASE in FIRST INSTANCE COURT AGAINST ASEFA S.A. FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER ENGRAULIS S.L. AT BUENA VISTA DE CORTES DEVELOPMENT

We were extremely pleased to inform our clients today that we had won their case against ASEFA in the First Instance Court.

The clients did not receive individual Guarantees from the developer, Engraulis S.L. or from ASEFA, the Insurance Company that signed a General Guarantee Policy with the developer.

The Purchase Contract had already been cancelled in a previous Lawsuit filed in 2012 against the developer in which the developer was sentenced to refund the off-plan deposit, however due to its financial situation the developer never paid.

Re: YOUR CASE AGAINST ASEFA S.A. SEGUROS Y REASEGUROS
PO xxx/2014

Please find attached the Sentence from the First Instance Court No.3 in Ronda.

Your case against ASEFA S.A. has been won.

The final paragraphs of the First Instance Sentence delivered on 11 February 2016 and notified on 19 February 2016 state:



“FIRST: I uphold the Lawsuit filed on behalf of xxxxxx xxxxxx and condemn the company Asefa S.A. to pay to the plaintiffs the sum of xx,xxx Euro.

SECOND: I condemn the company Asefa S.A. to pay interest according to article 20 of the Law of Contract Insurance accrued from 24 November 2014.

THIRD: I condemn the company Asefa S.A. to pay the costs”



So ASEFA S.A. is sentenced to refund the amount of xx,xxx€ plus interest according to the Insurance Law from 24 November 2014.

Costs of the legal proceedings are also imposed on Asefa S.A.

Interesting statements from the Judge in the Sentence were:


“The plaintiff asks in the Lawsuit for the defendant to be condemned to hand over the individual certificate of insurance for the amounts paid on account of the dwelling or, in the alternative, to issue a refund of the amounts paid in advance plus interest & costs.

The defendant does not deny the existence of the General Guarantee signed between the developer, Engraulis S.L. & the insurer, Asefa S.A. but argues, in essence, lack of standing to be sued as it never issued the individual certificate of insurance or guarantee to the buyer.

The plaintiff evidenced by way of a previous Court Sentence that the purchase contract was cancelled and that the developer was sentenced to refund the amounts paid.  The developer has not paid.

Therefore, the main issue on which this case must be decided is whether the General Guarantee Policy covers the request of the plaintiff.

In this regard it is necessary to refer to the recent Sentence of the Supreme Court dated 23 September 2015 in which the Supreme Court interprets that the General Guarantee Policy signed with the developer to ensure the obligations to repay the sums advanced by the buyers in compliance with Articles 1, 2 & 3 of LEY 57/1968, covers the buyers even though no individual certificate had been issued.

After studying the facts of this case and in accordance with the legal foundation exposed in the Supreme Court Sentence dated 23 September 2015, the alternative claim in this Lawsuit is upheld and the defendant, Asefa S.A. must pay to the plaintiff the amounts paid on account as advance payments for the dwelling as it had issued a General Guarantee Policy to a value of 1,663,000€, which is enough to accept the claim of the plaintiff without the need for an individual guarantee or certificate of insurance.

The Lawsuit is upheld in the alternative request since the issuing of the individual guarantee is not now required, since there is no contractual relationship between the parties and the General Guarantee Policy is sufficient to uphold the claim.

The defendant alleges that there is a limitation of 2 years for this type of action as per Article 23 of the Law of Insurance Contracts.

However, Article 1964 of the Civil Code provides 15 years for personal actions that did not have an appointed special term of limitation and since LEY 57/1968 does not establish a special deadline regarding the actions regulated in its text, we therefore apply the general deadline as per Article 1964 of the Civil Code.

The starting date for the computing of the period of limitation date will be from when the plaintiffs knew that they would not be receiving their money from the developer, Engraulis S.L.  Therefore, starting from the date of the Sentence, 19 March 2014, in which the purchase contract was cancelled and the developer sentenced to refund the amount.

In this case the interest according to Article 20 of the Law of Insurance Contracts applies as a result of the default of the insurer in meeting its obligation to return amounts advanced under its General Guarantee Policy.

In view of the above, I am condemning the defendant to pay the interest according to Article 20 of the Law of Insurance Contracts from 24 November 2014 which was the date on which this Lawsuit was filed and that the defendant insurer became aware of the incident.

In accordance with Article 394 of the Civil Procedure Code, having substantially upheld the Lawsuit, costs are imposed on the defendant”.



ASEFA S.A. has 20 working days from the date of notification of the Sentence, which was 19 February 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Malaga.

If an Appeal is filed by ASEFA S.A. it will be necessary for us to file an Opposition to the Appeal on your behalf.

Ronda, Malaga

 

 

 



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Legal tip 1367.NEW!WON CASE in FIRST INSTANCE COURT AGAINST BANCO SANTANDER & PROMAGA FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER PROMAGA AT RESIDENCIAL VISTA HERMOSA
17 February 2016

WON CASE in FIRST INSTANCE COURT AGAINST BANCO SANTANDER & PROMAGA FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER PROMAGA AT RESIDENCIAL VISTA HERMOSA

We were extremely pleased to inform our client today that we had won their case against BANCO SANTANDER & PROMAGA in the First Instance Court.

The developer completed the property one year late and Banco Santander had issued an individual Bank Guarantee to the buyer but had refused the enforcement of the Guarantee.  The developer & Bank both maintained that the purchase contract had been fulfilled.  The Bank was also of the opinion that the buyer was an ‘investor’ and not protected by LEY 57/1968.  Therefore, it was necessary for a Lawsuit to be filed asking for cancellation of the Purchase Contract and the joint and several liability of the developer & bank to refund the off-plan deposits paid by the buyer.

Re: YOUR CASE AGAINST PROMAGA S.A. & BANCO SANTANDER S.A.
PO xxx/2014

Please find attached Sentence No. 10/2016 from the First Instance Court No.3 in La Linea de La Conception.

Your case against PROMAGA & BANCO SANTANDER has been won.

The final paragraph of the First Instance Sentence delivered on 8 February 2016 and notified on 11 February 2016 states:



“Fully upholding the Lawsuit filed on behalf of xxxxxx xxxxxx against PROMAGA S.A. & BANCO SANTANDER S.A., I must declare cancelled the purchase contract dated 17 January 2007 signed between the buyer & promotor for a property situated in Residencial Vista Hermosa in the town of La Linea de La Conception and must condemn PROMAGA S.A. & BANCO SANTANDER S.A. jointly and severally to pay to the plaintiff the amount of xx,xxx€ plus legal interest from the date of filing of the Lawsuit with the imposition of procedural costs on the defendants”


So your purchase contract is cancelled.  PROMAGA & BANCO SANTANDER are sentenced jointly & severally to refund the amount of xx,xxx€ plus legal interest from the date of filing of the Lawsuit.

Costs of the legal proceedings are also imposed on Promaga & Banco Santander.

Interesting statements from the Judge in the Sentence were:

“The facts alleged in the Lawsuit are that the purchase contract was signed on 17 January 2007.  Completion was due by November 2008 with a 3 month grace period.  Banco Santander had issued a Bank Guarantee for the buyers off-plan deposit.  On 7 January 2010 the buyer sent a burofax to the developer to cancel the contract.  On 10 January 2010 the developer replied recognising the delay but denying that it was grounds for termination of the contract.

On 22 August & 12 September 2012 the buyer sent burofaxes to Banco Santander to enforce the Guarantee.  Banco Santander ignored the first burofax, but replied to the second burofax and requested several documents to be provided.  On 20 September 2012 the buyer sent the requested documents to Banco Santander.  The bank did not reply.

On 31 July 2014 this Lawsuit was filed.

Banco Santander submitted a timely defence in which it alleged that LEY 57/1968 does not apply in this case as the buyer is an investor who lives abroad and was buying 2 properties on this development.  Santander stated that the developer had fulfilled its obligations to deliver the property on time.

The developer, Promaga, also submitted a timely defence in which it stated that the delay was not sufficiently important to result in the cancellation of the purchase contract.

So we must determine in this case whether the delay in the delivery of the housing has decisional character or merely some reimbursement for delay where appropriate.

In the tenth clause of the purchase contract signed on 17 January 2007 it states that the property would be completed and delivered in November 2008 with an additional grace period of 3 months which could extend the completion deadline to February 2009.  The property was completed in November 2009 with the final works certificate being issued on 3 November 2009.  The First Occupation Licence was issued on 14 January 2010.  On 5 February 2010 the developer sent a burofax to the buyer confirming completion of works and the issuing of the First Occupation Licence.

So the completion came one year after the period provided in the contract and nine months after the three month extension period.  The developer did not claim that the delay was for reasons beyond its control, but instead said that the delay in delivery was normal for these types of off-plan projects.

The buyer confirmed that he did purchase 2 houses in this development, one for his family and one for their in-laws and that the houses were required as they were working in the colony of Gibraltar.  According to the buyer the delivery of the property according to the contracted dates was important because he needed an address for his job.  The buyer paid the amounts stated in the purchase contract and as so it must be concluded that the buyer has fulfilled his obligations.

Given all of the above it is correct to terminate the purchase contract dated 17 January 2007 and condemn the defendant developer, Promaga, to refund the amounts paid on account of the purchase.

As the purchase contract is cancelled it must now be determined whether the co-defendant Bank should be jointly and severally liable as guarantor of the payments.  The Bank considers the buyers as investors and outside the protection of LEY 57/1968.  However, the burden of proving this assertion lies with the party claiming this.  The facts in this case cannot be considered as proof of it.

The Supreme Court Sentence of 21 December 2015 has set as case law as follows: ‘In the house sales governed by Law 57/1968 credit institutions that receive income from buyers into the promoters account without requiring the opening of a special account and corresponding warranty/guarantee are liable to buyers for the total of the amounts anticipated by the buyers and deposited in the account or accounts that the developer has opened in this organization’.

So the Bank is liable for all sums advanced by the purchaser and in this case should be liable to refund the full amount paid”



BANCO SANTANDER & PROMAGA have 20 working days from the date of notification of the Sentence, which was 11 February 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court.

If an Appeal is filed by BANCO SANTANDER or PROMAGA it will be necessary for us to file an Opposition to the Appeal on your behalf.

You also have the right to file an Appeal to the Provincial Appeal Court regarding the fact that interest was only awarded from the filing of the Lawsuit (31 July 2014) and not from the date you paid the off-plan payments to the developer’s bank account in 2007.

Our litigators recommend an Appeal for additional interest.



Like 3        Published at 18:34   Comments (5)


Legal tip 1366. NEW! WON CASE in FIRST INSTANCE COURT AGAINST BANCO POPULAR FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER HUMA MEDITERRÁNEO S.L. AT ALMANZORA COUNTRY CLUB
17 February 2016

WON CASE in FIRST INSTANCE COURT AGAINST BANCO POPULAR FOR OUR CLIENT WHO PURCHASED AN OFF-PLAN PROPERTY FROM THE DEVELOPER HUMA MEDITERRÁNEO S.L. AT ALMANZORA COUNTRY CLUB

We were extremely pleased to inform our client today that we had won their case against BANCO POPULAR in the First Instance Court.

The client paid a six figure sum to the developer’s account at BANCO POPULAR and only received an Individual Guarantee for around 50% of the amount paid.  The client did not receive an individual Guarantee for the other 50% of the off-plan deposit (claimed in this Lawsuit) from the developer, Huma Mediterráneo S.L. or from BANCO POPULAR, the Bank to which their off-plan deposit was paid and the Bank that signed a Guarantee Line with the developer.

Re: YOUR CASE AGAINST BANCO POPULAR ESPAÑOL S.A.
PO xxxx/2014

Please find attached the Sentence from the First Instance Court No.8 in Murcia.

Your case against BANCO POPULAR ESPAÑOL S.A. has been won.

The final paragraph of the First Instance Sentence delivered on 29 January 2016 and notified on 3 February 2016 states:



“Substantially upholding the Lawsuit filed on behalf of xxxxxx xxxxxx against BANCO POPULAR ESPAÑOL S.A., I must condemn the defendant bank to give to the plaintiff within 30 days an individual guarantee or certificate of insurance for the amount of xx,xxx Euro that was paid by the buyer to the defendant bank to the account of the developer on account of the purchase price of a house from Huma Mediterráneo S.L., plus interest at the rate of 6% per annum as agreed in the Guarantee Policy dated 12 May 2005, starting from the delivery date of the advance payments (10 August 2005) until payment in full, with the imposition of procedural costs on the defendant”


So BANCO POPULAR ESPAÑOL S.A. is sentenced to issue the Individual Guarantee within 30 days and to then refund the amount of xx,xxx€ plus interest at the rate of 6% per annum from the date you paid to the developer’s bank account until complete repayment.

Costs of the legal proceedings are also imposed on Banco Popular.

Interesting statements from the Judge in the Sentence were:

“Banco Popular granted Huma Mediterráneo as of 12 May 2005, two general guarantees for the repayment of amounts paid in advance by buyers plus interest, one for a maximum amount of 2.5 million euros and another for a maximum amount of 4.25 million euros.  In this case the buyer paid a total of xxx,xxx€ to the developers account opened at Banco Popular.  The bank issued an individual guarantee for xx,xxx€ which was legally satisfied by the defendant bank.

However, as a result of planning irregularities and the declaration of bankruptcy of Huma Mediterráneo S.L. the buyer requested termination of the purchase contract and had a claim recognised in the bankruptcy procedure amounting to xx,xxx€ which was the amount not individually guaranteed by the defendant bank.

Banco Popular claims lack of capacity to be sued as it never issued a guarantee for the funds, individually or collectively.  The bank states that neither the contract nor the law LEY 57/1968 establishes this obligation.  It states that the account to which the funds were paid was a normal current account and not a special account.  Furthermore it states that it was not the only guarantor in this promotion and that although Banco Popular had issued some individual guarantees there was no evidence to show that the developer had requested it to issue an individual guarantee for the amount of xx,xxx€.

The issue regarding the lack of capacity to be sued must be rejected as the legitimisation of Banco Popular is determined by the General Guarantee policies signed with Huma Mediterráneo on 12 May 2005.

The fact that the General Guarantee policies signed between the bank and developer are for a limited amount is contrary to the law.  Any agreement that contradicts the mandatory rule (Article 6.3 of the Civil Code) is void as the rights recognised in LEY 57/1968 to home buyers are of an inalienable nature.

Indeed, to understand the full extent of the scope of the obligations imposed by this Act to financial institutions is necessary to go to the final paragraph of the second condition of article 1, which states that ‘for the opening of these accounts or deposits the bank or savings bank, under its responsibility, must require the guarantee that the above condition refers to’.

This statement attributes to the bank the duty to demand the guarantee, coupled with accountability, of ensuring the amounts advanced by the buyers are entered into a special account with separation from any other kind of funds belonging to the promoter and from which it may only make withdrawals for the construction of housing.  If there were doubts regarding this then Supreme Court Sentence of 21 December 2015 has set as case law as follows: ‘In the house sales governed by Law 57/1968 credit institutions that receive income from buyers into the promoters account without requiring the opening of a special account and corresponding warranty/guarantee are liable to buyers for the total of the amounts anticipated by the buyers and deposited in the account or accounts that the developer has opened in this organization’.

Nor is it an irrelevant fact of the economic benefit accruing to banks to arrange these transactions, since the obligation to deposit the advance payments into an account opened for that purpose in that entity as consideration involves not only the price of the guarantee, but also the gain or advantage derived from the financing of the property development.

In short, we are not facing common contract bond under Article 1822 of the Civil Code, but an endorsement of a special nature regulated by Law 57/1968, which provides the indispensable guarantees for homebuyers who delivered quantities towards the total price (STS. of 4 December 2009) and has a strong protective nature of the rights of these buyers, as consumers who hire a professional construction, since they can suffer irreparable damage. As a second premise, there is repeated jurisprudence stating that it is not a prerequisite that the entry of the amounts is verified in an account specifically listed as Special for the bank to respond even to sums not guaranteed, without limitation.

In consideration of this doctrine is to be understood that it is the responsibility of the bank receiving the funds into the developer’s account to require the developer to constitute a specific individual guarantee to cover the amounts paid in advance by each buyer and the lack of requirement by the bank for the developer to issue such individual guarantees may have an impact on the purchaser if the developer breaches its obligations to construct the property.

It is true that this is not a breach of obligations by the bank guarantor, but it is aware from the outset that the granting of the guarantee line creates a legal relationship that produces effects towards a third party, a third party which has the status of consumer, who cannot be adversely affected by the violation of the duties by any of the contracting parties, formed by two business entities.

In short, Banco Popular awarded Huma Mediterraneo a guarantee line for the provision of individual guarantees to various individual homebuyers in the promotion Almanzora Country Club, guaranteeing the amounts paid on account by the buyers of these homes. And then the buyer’s funds were entered in an account of the entity in the name of Huma Mediterraneo SL without the Bank making any inquiry about the reason why any individual certificate of guarantee is not requested for the home buyers.  Therefore, the defendant Bank must respond to the applicant for the sums of money given to the seller as advance payments for the purchase of housing and deposited into the account.  Furthermore, the mention of Aldea Asesores SL as a legal person performing the transfer of xx,xxx€ has no bearing on the outcome of this procedure, as the transfer document contained sufficient data for the bank to identify the buyer. 

The legal questions raised by the Bank at the Preliminary Hearing (4 November 2015) regarding the Supreme Court Sentence dated 5 February 2013 were already superseded by the Supreme Court Sentences dated 30 April & 23 September 2015 which definitively clarified any dispute concerning this matter but despite this the defendant bank decided to continue the procedure”



BANCO POPULAR has 20 working days from the date of notification of the Sentence, which was 3 February 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Murcia.

If an Appeal is filed by BANCO POPULAR it will be necessary for us to file an Opposition to the Appeal on your behalf.



Like 4        Published at 10:44   Comments (1)


Legal tip 1365. Congrats to Keith Rule and Spanish Judges
15 February 2016

Answering an EOS members congratulating us on our victories with law 57/68 cases

Antifreeze:

It is very good  (1) Judges in Spain are applying Law so wisely and correctly in favour of consumers of those crazy years.

(2)Good that people like Keith Rule persisted on finding justice and finally,

(3) Good that we have the will, energie, passion and discipline to help Keith and many like him.

I am very glad for that all.

Cheers

María

Castle of Fireworks in Valencia, Eastern Spain



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Legal tip 1364.WON CASE in FIRST INSTANCE COURT AGAINST CAIXABANK FOR OUR CLIENTS WHO PURCHASED OFF-PLAN PROPERTIES FROM THE DEVELOPER ANDAINVER S.L. (now DESARROLLOS EMPESARIALES NAPLES S.L.) AT CALANOVA SEA GOLF DEVELOPMENT
12 February 2016

WON CASE in FIRST INSTANCE COURT AGAINST CAIXABANK FOR OUR CLIENTS WHO PURCHASED OFF-PLAN PROPERTIES FROM THE DEVELOPER ANDAINVER S.L. (now DESARROLLOS EMPESARIALES NAPLES S.L.) AT CALANOVA SEA GOLF DEVELOPMENT

We were extremely pleased to inform our clients today that we had won their case against CAIXABANK in the First Instance Court.

The clients did not receive individual Guarantees from the developer, Andainver S.L. or from CAIXABANK, the Bank to which part of their off-plan deposit was paid and the Bank that signed a Guarantee Line with the developer.

Re: YOUR CASE AGAINST CAIXABANK S.A. - PO XXX/2015

Please find attached the Sentence from the First Instance Court No.4 in Fuengirola (Málaga).

Your case against CAIXABANK has been won.

The final paragraph of the First Instance Sentence delivered on 3 February 2016 and notified on 4 February 2016 states:


“Fully upholding the Lawsuit filed on behalf of XXXXXXX, XXXXXXX & XXXXXX and condemn CAIXABANK S.A. to pay to the plaintiffs the amount of XXX,XXX euros (XXX,XXX€ to Messrs XXXXX & XX,XXX€ to Mr XXXXXX), increased by that amounting from applying the interest under LEY 57/1968, of 29 July, with the imposition of costs to the defendant”


So your Lawsuit has been upheld and CAIXABANK is sentenced to refund the amount of XXX,XXX€, plus interest in accordance with LEY 57/1968.

We have requested the Court to clarify if interest is to be calculated from the date in 2004 when you made the off-plan payments to the developer or from the filing of the Lawsuit in 2014 as it is not clear from the Sentence.

Costs of the First Instance Proceedings are imposed on CAIXABANK.

CAIXABANK has 20 working days from the date of notification of the Sentence, which was 4 February 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Málaga.



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Legal tip 1363. NEW! Regulations on property rentals in Andalucía
11 February 2016

Main features of a Tourism Rental:

• Tourism channels are offered:  travel agencies, brokers, organized tourist services and any other channels in which the possibility to book the accommodation is included.

• Property is located on residential land. Those properties on Tourism Land will not be licensed for a holiday home

• Lease is shorter than two months’ time

Properties which are excluded:

• House accommodation offered at no price

• For a period longer than two months´ time

• Rural houses

• Tourist apartments: (blocks of properties situated on Tourism land, under one sole management company)

Liability declaration:

Before the property is promoted through tourism channels, a "declaration of responsibility" to the Regional Tourism department needs to be presented.

The minimum content of the declaration of responsibility will be:

• Property Details:  number of beds, according to Occupation License.  If there is no copy of the Occupation License, owner will have to request one from Town Council and if the license has not been granted by the Local Council, one will have to be requested, because it is a prerequisite for filing a declaration of responsibility. You cannot rent your property in the tourism market if there is no Occupation License.

• Information on the owner.

• Details of the person or entity that will operate the activity, and the contract allowing him to do so if the owner is a different person.

After the declaration, the Tourism department will request it to be included in the Register of Tourism of Andalusia.  Once the registration is made, a registration number will be communicated to the owner. This number will have to be made visible on any advertising material.

Prices of rentals will have to be placed anywhere in the home. Overcharging is prohibited obviously and charging for items different to those exposed or indicated on the tourism channels are not possible.

Price conditions, reservation, advanced payments and, where appropriate, cancellation shall be governed as expressly agreed between the parties, which in all cases will be detailed and publicized prior to contracting.

A proof of reservation document will be handed to tenants when they make the initial reservation payment. This document will express full price of the renting, advanced payments and penalties.

Important requisites

• The house will have to have occupational license

• The housing will have to be air-conditioned if rented from May to September, and heating if you rent from October to April (these requirements come into force on 12 May 2017, not May 12, 2016).

• Landlord will provide tourist information about the environment, health care, transportation, plane and guide shows.

• Telephone  number of owner/ manager will be available to tenant.

• Claims forms available.

• First aid kit available.

• Rental can be of the entire house or of some rooms. Rental of whole house cannot be of more than 15 seats.  Rental of rooms cannot exceed 6 seats. In any of the two cases, rooms can be occupied by more than 4 beds.

• Housing will have to be furnished for immediate use.

Responsibility

The responsible person before the Regional Government and the tenant/ tourist will be the person which, appears as in charge of the operation of the apartment in the Liability declaration submitted to Andalucía Regional department

Penalties

From 2000 to 150000 euros



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Legal tip 1362. Supreme Court decission on Bankia shares
01 February 2016

I am sure you of course know of this new!

http://www.nytimes.com/2016/01/28/business/spanish-supreme-court-orders-bankia-to-repay-2-investors-in-its-ipo.html?_r=0

http://elpais.com/elpais/2016/01/27/inenglish/1453902595_666151.html

If you have any question, I am pleased to answer them for you

Cheers and happy week!

Maria

You can contact us for litigation services here

costaluzlawyers

saferent

takelegal

wemovetospain



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