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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 1263. NEW! Case won against Sabadell and Promociones Eurohouse AGAIN
17 February 2015 @ 15:39

PROMOCIONES EUROHOUSE 2010 S.L. - BANK ACTION WON AGAINST BANCO SABADELL (formerly BANCO CAM)

Notification sent today to a client who had reserved two off-plan properties from the developer, PROMOCIONES EUROHOUSE 2010 S.L., informing them that their action against BANCO SABADELL had been won in the First Instance Court in Orihuela.

 

Please find attached Sentence number xx/2015 from the First Instance Court No.2 in Orihuela.

 

Your case against BANCO SABADELL S.A. has been won.

 

The final paragraph of the First Instance Sentence delivered on 9 February 2015 and notified on 12 February 2015 states: 

 

 

“Partially estimating the Lawsuit filed on behalf of xxxxxxxx & xxxxxxxxx against BANCO SABADELL S.A., and condemn the defendant to the repayment of the amount of xx,xxx Euros, plus legal interest from the date of payment to the account of Banco Sabadell S.A. until full payment.

 

No imposition of costs on any party is made”

 

So BANCO SABADELL S.A. is liable to refund the amount of xx,xxx€ plus legal interest from the date the amount was paid to the Promociones Eurohouse account at BANCO SABADELL until full payment to the Court.  Legal costs are not imposed on any party, so each party will pay its own costs.

 

The Sentence explains in great detail the liability of BANCO SABADELL according to its obligations under LEY 57/1968 for the off-plan deposits paid to the account opened by the developer, PROMOCIONES EUROHOUSE 2010 S.L. in BANCO SABADELL (formerly Banco CAM).

 

Particular points of interest stated by the Judge in the Sentence are: 

 

“When interpreting and applying LEY 57/1968 we should not forget the aim of the Law which is to protect consumers against real estate fraud.

 

The main aim of consumer protection has been highlighted by the Supreme Court in a Sentence in 2001.  Such is the protective purpose of LEY 57/1968 that jurisprudence has clarified that the interpretation of this Law should not be to the detriment of the consumer.

 

All these rights and guarantees to the purchaser are declared in Article 7 of LEY 57/1968 and are of an inalienable nature.

 

Article 1.2 of LEY 57/1968 in its desire to protect purchasers of homes, also involves banks.  It states that for the opening of these accounts the bank, under its responsibility, must demand the Guarantee referred to in the previous condition.

 

The question is whether the responsibility of Banks always arises when purchaser’s funds are paid into any type of accounts when the Bank is aware that the source of such income is from buyers of homes under construction, or if such liability arises only when the funds are paid to a Special Account.

 

In this case the account opened in Banco Sabadell according to the account opening contract is not called a Special Account.  Likewise the Purchase Contract states that buyers funds should be paid to an account at another Bank, BBVA S.A.

 

We follow current jurisprudence which explains that the status of the account for the purpose of LEY 57/1968 is not determined by the account opening contract, but by the fact that if the Bank is aware of the nature of the business of the account holder and has clear indications that the account is to be used for the receipt of off-plan funds then follows the duty of supervision and control of the account and the responsibility to ensure the Guarantee is provided by the developer as per the requirements of LEY 57/1968.

 

So although in this case the account at Banco Sabadell is not called a Special Account, several concurrent circumstances lead us to conclude that the account should be treated as a Special Account.

 

First we note that the defendant Bank has failed to provide to the Court copies of transaction statements for that account despite being required to do so.  It relied on the fact that these statements were not available as the tax law does not require them to keep them for more than 6 years; but the truth is, as stated by the representative of the defendant Bank in Court, that the bank statements from 2006 and 2007 are stored in the Banks system and can be ordered.

 

Secondly the representative of the defendant Bank stated in Court that they were aware that the business of developer, Promociones Eurohouse 2010 SL was that of property development.

 

Thirdly they stated that the account to which the buyers payments were made was the only account that Promociones Eurohouse 2010 SL had opened in that Bank.

 

Fourth, they stated that the account was managed by the business department of the Bank.

 

Therefore, if Promociones Eurohouse 2010 SL is dedicated to the promotion of housing under construction, the account opened in the Bank was the only account the developer opened at that Bank and the account was managed by the Banks business department in order to grant mortgages and credit facilities, then it is clear that the Bank should know that funds paid to this account was for homes under construction as this is the main source of income from the activity of a property developer.

 

From this it follows that the account was considered a Special Account for the purposes of Article 1.2 of LEY 57/1968 and that the Bank must fulfil its obligation to ensure the funds paid in advance for the price of homes under construction were legally guaranteed, and by not doing so the Bank incurs liability.

 

In this case the buyer’s amounts were paid to the account by cheques from Olé International, a property company, and this leads us to conclude that the defendant Bank had strong indications that this amount had come from buyers of off-plan properties and must therefore meet its supervisory role according to Article 1.2 of LEY 57/1968.

 

It is true that the Purchase Contract stated that the designated account for off-plan payments was held in BBVA, however the fact that the buyer paid funds to the developer via his legal representative in Spain and that the funds were finally paid to the developers account in a different Bank to that mentioned in the Purchase Contract cannot harm the buyers.

 

As such the defendant Bank must take responsibility and be accountable for the buyer’s two payments made to the developers account opened in its offices”

Benadalid, Malaga, South eastern Spain, at facebook.com



Like 1




3 Comments


antifreeze said:
19 February 2015 @ 08:37

Congratulations Maria - for an honest justice and a judge who is well versed with his own laws. If more judges were like this and make developers and banks aware of their duties, people would come back to Spain to buy. The law was a good one, protective of consumers.

In this case Maria, were the properties completed or did the developer just walk away with the deposits?

Thank you.




mariadecastro said:
19 February 2015 @ 16:02

Properties were not built!
María


broph said:
19 February 2015 @ 20:23








Well done to all the legal team for their persistent hard work . It's so refreshing to see that the Spanish legal system is capable of delivering justice.


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