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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 1327. NEW! Supreme Court further protection of off plan buyers with no Bank guarantees
Thursday, October 1, 2015 @ 1:12 PM

Translation into English of main parts of recent, most relevant Supreme Court decision on Law 57/68 and lack of individual guarantee

Law 57/1968 General Guarantee to ensure the repayment of amounts paid on account. Failure to issue individual certificates. 

According to (1) the protective spirit of the Law, recently highlighted by the Chamber, which requires assurance or guarantee of the amounts paid in advance, and

                       (2) the fact that a collective guarantee has been agreed to cover any repayment obligations of the developer in regards to the advanced amounts perceived from  buyers, a copy of which has been delivered along with contracts of sale,

 it is clear that the risk is directly covered, without the need of  issuance of  an individual guarantee in respect of which the buyer has no responsibility. -


Cassation Appeal BBVA and SGRCV

8. Paragraph Five: It is jurisprudence of this Court that article. 1 of Law 57/1968 allows the buyer to act jointly and severally against the developer and its insurer or guarantor  to demand repayment of the advanced, when "construction does not timely  start or does not reach good end" . [Judgments 476/2013, of July 3; 218/2014 of 7 May and 218/2015, of April 22]. This same law also allows the buyer to claim just against the guarantor or insurer without having to sue the developer for breach of contract.

This Court has also stated that the guarantee covers all amounts paid on account of the price,  even if the insurance policy sets a lower maximum amount because otherwise art. 2 of Law 57/1968 and Art.  68 of the Insurance Act would be violated [Sentences 476/2013 of 3 July and 779/2014 of 13 January 2015].

11. Paragraphs Third, Fourth and Fifth:   Provisions 1, 2 and 3 of Law 57/6 can be violated  under the guise of the existence of a general guarantee as the buyer  does not have to know that he should still receive an individualized endorsement. In that scenario, the buyer is at the mercy of the degree of diligence of the developer, depending on if he requests the certificate of guarantee or not.

According to (1) the protective spirit of the Law, recently highlighted by the Chamber, which requires assurance or guarantee of the amounts paid in advance, and

                       (2) the fact that a collective guarantee has been agreed to cover any repayment obligations of the developer in regards to the advanced amounts perceived from  buyers, a copy of which has been delivered along with contracts of sale,

 it is clear that the risk is directly covered, without the need of  issuance of  an individual guarantee in respect of which the buyer has no responsibility. -

  The buyer who has  paid advanced amounts should not weigh on  the gross negligence or willful misconduct of the developer who fails to require certificates or individual guarantees.

In conclusion:

 i)  Guarantor, once General Guarantee is signed and premiums are perceived, needs to cover the guaranteed event, which is to refund the amounts received, together with  interest as provided in the legal standard, in regards to the development the guarantee is linked to.

 ii) the issuance of the certificates or individual guarantees, by the insurer or guarantor, for each of the buyers, legitimizes these to enforce them, according to art. 3 Law 57/1968; AND

 iii) the absence of the corresponding individual guarantees does not preclude the obligation to repay the  advanced amounts, with interest, is covered for buyers who have entered into a purchase agreement and delivered these advance payments, under the existence of the General Guarantee.



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7 Comments


Spanishpunter said:
Thursday, October 1, 2015 @ 9:22 PM

This is very good news for everyone in a similar situation and presumably the decision will make it difficult for the bank to argue a defence to current and legal actions pending as presumably to enter a defence they will have to find a legal argument which negates the Supreme Court Decision
Which should be difficult even for top lawyers!!
So is it now the general consensus of the lawyers involved in legal actions on this topic, that the Banks will now start to settle out of court or is the opinion that the Banks will just defend every case to discourage buyers pursuing them
Perhaps it is time for the Judiciary and the Bank of Spain to bring the Banks to heel
We read that the Spanish property market is on the recovery curve and a 'mass settlement of all claims ' on this issue would provide good publicity for Spain and it follows its economic recovery of which the sale of holiday homes contributes


GuyT said:
Friday, October 2, 2015 @ 10:50 AM

"a copy of which has been delivered along with contracts of sale"

Were copies of the collective guarantee always delivered to buyers together with contracts of sale?


mariadecastro said:
Friday, October 2, 2015 @ 12:14 PM

Spanisgpunter: totally agree with you
GuyT: Unfortunately not. But it is the labour of lawyers representing clients now in their claims to request them and, if not even existing, to use the other possible action against Bank out of Law 57/68. Actions against Banks with received deposits


ads said:
Tuesday, October 6, 2015 @ 12:05 AM

What if mention was actually made of the Generic Bank guaranteeing the development within the original purchase contract, (with no individual BGs made available) would that be sufficient to legally qualify, so long as proof of monies being deposited into developer accounts has been established, i.e. the risk would be covered, Maria? Would the existence of a contract reference to the Bank guaranteeing the development then suffice?


mariadecastro said:
Tuesday, October 6, 2015 @ 7:12 AM

In my opinion, yes. Especially because proof of payments into developers account has been established. The GB document can be requested by lawyers in preliminary diligences



antifreeze said:
Saturday, February 13, 2016 @ 8:19 AM

Congratulations Maria.

What is payment was made to Lawyers who passed it to the developers but still no BG was issued or re-newed?


ads said:
Saturday, February 13, 2016 @ 3:15 PM

Dear Maria,
Doe this Supreme Court ruling also assist the recovery of costs given your previous advice " once Supreme Court sets case law doctrine, a judge cannot leave costs non-imposed for the reason of controverted character of the matter"?


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