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El blog de Maria

Your daily Spanish Law reporter. Have it with a cafe con leche. www.costaluzlawyers.es

Legal tip 1195. Law 57/68 Lawyers negligencies
18 August 2014 @ 22:22

An answer to Ads today at the Forum:

Ads:

I agree with your comments on lawyers liabilities. It is a non explored field so far in regards to these disasters. They represented clients and did not ensure that these buyers had  the corresponding individual certificates of Guarantees.

Unless they can prove they requested it, using all the necessary due diligence; if (1) the action against the developer cannot be enforced and (2) there is no possibility of action against the Bank (using Law 57/68), an action against former conveyancing lawyers/ their professional indemnity insurance need to be explored.

Deadlines for these actions are of 1 year after previous measures prove to be fruitless. 

All related damages can be added here ( interests, moral damages...)

Salobreña, Granada, South eastern Spain, at facebook.com

 



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5 Comments


ads said:
19 August 2014 @ 11:06

As discussed within the thread titled "Clients deciding on actions against Banks", there should always be the possibility of action against the Bank according to the principal of legal certainty.... as to deny cancellation rights when breach has occurred is in contravention of this principal, and this would then leave the way open for action against the Bank.




antifreeze said:
19 August 2014 @ 12:41

Banks and developers have colluded - lawyers, caught in the tide of taking on too many cases to reap the benefits, have neglected to inform clients of implications - left them unguarded and vulnerable. Mostly, these were overseas people who did not turn up in their offices.


ads said:
19 August 2014 @ 12:43

Also, in terms of inability to gain enforcement against the developer, wouldn't the time constraint of one year that you identified above be in contravention of the rule of law (and your constitution) if these constraints have not been equally imposed on the courts/judiciary, which subsequently compromised purchasers' ability to gain timely cancellation of contract and thereafter timely enforcement of Ley 57/68 and return of their monies?

The European Commission's press release in annex 2 makes reference to the following:
"The Court has emphasised the role of equal treatment as a general principle of EU law "

Aren't all of these factors relating to serious/systemic breakdowns to the rule of law that have impacted so badly on innocent offplan purchasers during this last decade also be of significance to the ongoing fight for justice and consistent enforcement of Ley 57/68, Maria?

Can these arguments relating to legal certainty and equal treatment not be brought to the attention of the judiciary in ongoing cases or used to counter miscarriages of justice (where for instance there has been a contra legem interpretation which did not cover rights established in Law 57/68)?

I’m confused why the purchaser should be exposed to further risk by another non explored field (action against lawyers) when existing arguments relating to legal certainty and equal treatment supported by the rule of law should be taken into consideration by the judiciary/Supreme Court/Constitutional court?



mariadecastro said:
21 August 2014 @ 12:05

Lack of Bank Guarantees are being seriously covered by Courts in Spain. Supreme Court has already set a doctrine which says that this lack is always serious and deem a cancellation.

Banks liabilities when Bank Guarantees do not exist are being more and more reaffirmed by Provintial Appeal Courts.

Weak points yet, in our opinion:

- Interpretation of provision 3 of Law 57/68. Every delay-- with independence of the existence of Bank Guarantee--- needs to have cancellation rights attached according to that Law.

In regards to Lawyers liabilities, despite the action is not much used presently, I cannot see it failing, honestly.




ads said:
22 August 2014 @ 07:57

Would mention of illegal BG within the purchase contract (i.e. a company not recognised in Spain) and subsequent provision of an alternative BG which altered the "effective date" of the BG beyond that agreed in the purchase contract, without written consent from the purchaser nor annexed to the contract, be treated the same in the eyes of the law as non provision of BG (since it too demonstrates a serious intent to deny the purchaser their right to enact a BG at the point of delay and respect their inalienable rights, including cancellation rights)?
Shouldn’t this also be deemed serious enough to warrant cancellation of contract, Maria?
Doesn't this demonstrate a manipulative ploy between developer/Bank to deny a purchaser of their inalienable rights according to Ley 57/68?
Wouldn't this together with non adherence to the principal of legal certainty be sufficient to block any subsequent enforcement of a final ruling that failed to recognise these facts and deny a purchaser their cancellation rights, Maria?
If any enforcement of such a contra legem ruling was allowed to proceed, then wouldn’t this be deemed a serious breach to the rule of law if it remained unrecognised by the courts/judiciary/Supreme Court?




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