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Legal tip 1305. NEW! WON CASE AGAINST ZURICH INSURANCE PLC FOR A GROUP OF OFF-PLAN BUYERS FROM THE DEVELOPER INMOBILIARIA NADALSOL S.L. AT MEDINA GOLF RESIDENCIAL
18 June 2015 @ 08:19

WON CASE AGAINST ZURICH INSURANCE PLC FOR A GROUP OF OFF-PLAN BUYERS FROM THE DEVELOPER INMOBILIARIA NADALSOL S.L. AT MEDINA GOLF RESIDENCIAL

We were pleased to notify our clients today that Zurich Insurance PLC had lost its Appeal against the First Instance Sentence and that we had won our Appeal regarding the amount of interest awarded.  The clients did not receive individual Guarantees from the developer, Inmobiliaria Nadalsol or from the Bank to which their off-plan deposit was paid; however Zurich Insurance PLC had issued a General Guarantee to the developer.


Re: YOUR CASE AGAINST ZURICH INSURANCE PLC

Please find attached Sentence number xxx from the Provincial Appeal Court Section 4 in Granada.

I am very pleased to advise you that the Appeal filed by Zurich Insurance PLC has been dismissed and your Appeal in respect of interest only being awarded from the filing of the Lawsuit has been upheld.

The final paragraphs of the First Instance Sentence delivered on 11 December 2014 and notified on 23 December 2014 stated:

“I estimate the Lawsuit filed on behalf of 7 claimants against ZURICH INSURANCE PLC and condemn the defendant to pay the plaintiffs the amount of 505,959.81 Euro plus legal interest from the date of filing of the Lawsuit until payment in full, with legal costs imposed on the defendant”

Zurich Insurance PLC filed an Appeal against the First Instance Sentence. 

We filed an Appeal regarding the interest only being awarded from the date of filing of the Lawsuit.  We asked for interest to be awarded from the date the buyers paid to the developer’s bank account.

The final paragraphs of the Provincial Appeal Court Sentence delivered on 29 May 2015 states:

“1. That estimating the Appeal filed on behalf of the Plaintiffs we revoke the First Instance Sentence only in terms of the computing of the legal interest payable.  Instead the calculation shall be produced and made from the date each amount was paid to the developers account.

2. We dismiss the Appeal filed by ZURICH INSURANCE PLC and fully confirm the First Instance Sentence with the imposition of the costs of this Appeal on the Appellant”



So the Provincial Appeal Court has dismissed the Appeal filed by Zurich Insurance PLC against the First Instance Sentence.

The Provincial Appeal Court has upheld our Appeal regarding the interest only being payable from the date the Lawsuit was filed.  In this respect only, the First Instance Sentence is revoked and interest will now be payable from the date each amount was paid to the developer’s bank account, until full payment to the Court.

The costs in respect of Zurich’s Appeal are imposed on Zurich Insurance PLC.

Interesting statements from the Provincial Appeal Court are:


The appeal is not acceptable as it favours the Appellant to the detriment of the Plaintiffs who are consumers and may not be affected by any possible breach between the promotor and insurer.  According to the provisions of the Ministerial Order of 29 November 1968 the insurer assumes certain obligations when issuing a General Guarantee and should therefore meet the minimum requirements of that standard, which allows it to check the validity of all documentation relevant to the obligation and, in particular, the movements of the aforementioned Special Account.

We must emphasise the protective nature of LEY 57/1968 and complementary regulations, having been expressed by the Supreme Court, that the purpose of this law is to establish general preventative rules ensuring both the real and effective protection of funds paid in advance by buyers of off-plan homes.

The point is not whether the buyers receive individual guarantees, but that the defendant has concluded the insurance required by LEY 57/68, which generates the inalienable rights of the buyers as we have already stated (article 7 of LEY 57/68).

Consequently the original ruling does not incur the alleged violations and the Appeal filed by Zurich Insurance PLC is rejected.

The plaintiff also appealed as they disagreed with the original judgment regarding the awarding of limited interest only from the date of filing of the Lawsuit.  While indeed this was an alternative claim contained in the original Lawsuit we have now been asked to consider calculating interest from the date of payment of the respective amounts to the developer’s account.

As for its origin, we must stress that the payment of interest is an obligation imposed by the law, to repay the amounts paid on account plus interest initially imposed by Articles 2 & 3 of LEY 57/68 and then the D.A. First of LOE maintained this but with setting the interest at the ‘legal rate’.

The legal obligation of the promotor or seller who fails to comply with the content of those provisions cannot be interpreted differently and interest will be paid from the date of the respective payments.

This obligation is guaranteed by the Insurance Agreement which is required by LEY 57/68.

Consequently the Plaintiffs Appeal regarding the payment of interest from the date of payment to the developer’s account must be upheld”

Gol "Alcaidesa" and Gibraltar to the bottom, Cádiz, South east of Spain

 



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