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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: 1454 - LEY 57/1968 Case won against Banco Santander for buyers in the Aifos development 'Cala del Sol' in San Fernando
01 May 2018 @ 14:33

A law from 1968 and the interpretation of that law by Spanish judges and courts in favor of off-plan buyers of first or second homes in Spain results in the return to six claimants the savings they lost during the real estate crisis in Cala del Sol, San Fernando.

At the completion date as stated in the purchase contract, the building licence had not even been issued and the developer Aifos then entered liquidation.

The Judgment states that purchase contracts were cancelled during the Bankruptcy proceedings as a result of the approval of the Liquidation Plan by the Mercantile Court; and it is also concluded as proven that the claimants had not received any refund from that procedure.  The defendant entity, Banesto, now Banco Santander, appears as a creditor in the aforementioned bankruptcy proceeding, thus having full knowledge of the buyers off-plan deposits.

The Judgment also states that it has been proven that BANESTO signed a General Guarantee with the entity AIFOS and that although none of the claimants received an individual guarantee, there are many individual guarantees issued in favor of other buyers on the same development.

Although the Bank tried to evade its responsibilities in the trial by alleging the speculative nature of the purchases and therefore, the non-conformance with Law 57/68 (law that protects first or second home buyers), this argument was rejected as it was not proven and the burden of proof is on the party that alleges it.

The bank also alleged a time limit on these actions of 2 years; however that argument was also rejected by the judge in favour of the 15-year statute of limitations.

The bank is also ordered to pay interest from the date Aifos declared bankruptcy, a limit that may be appealed by the claimants since the right to be paid interest, according to law and jurisprudence, is from the date of payment to the developer’s bank account.

The costs are also imposed on the Bank.

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