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El blog de Maria

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

Did developer make changes? - Abusive-Null and Void
Tuesday, June 24, 2008 @ 8:26 PM

It is frequent ( almost a general rule) to find an off plan purchase contract with a clause which says something like:

" The buyer gives permission to developer to make those changes required by technical  or legal reasons"

Well... that is an abusive clause and therefore, it is null and void. You can ask for compensation if those changes were not expressly allowed by you and for cancellation of the contract  if there are substantial changes that derive in a " aliud pro alio" .

The clause for  the legal regulation of possible changes between what is being contracted off plan and what is finally handed needs to meet these criteria:

1.- Reasons for change need to be expressed in the contract. It is not valid those generic references to " Act of Nature", " Force majeure", " unplanned circumnstances", " legal or technical reasons"

2.- Reasons need to be valid reasons: There are some parameters to judge on the validity of the reasons:

- Fact which happens out of the control of the developer´s activity ( it is not the denial of license, which is a regulated by Law, controllable and predictable fact)

- It needs to be unpredictable ( rains are strikes are predictable, as they are commun and frequent every year)

-The exact fullfilment of the contract needs to be specially costly for the developer

3.- The financial settlement needs to be established in the same contract

- By reduction of price

That reduction of price needs to operate too if the changes consist on a lack of quality .

If the defect is meaningful: cancellation.

 

By Maria L. de Castro

web@costaluzlawyers.es

www.costaluzlawyers.es



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10 Comments


james cottnam said:
Thursday, June 26, 2008 @ 1:56 PM

Hi I bought an off plan apartment in may 2004,completion was set for summer 2007 ,it is still not finished because the builders added an extra floor without permission ,so now we have to wait for the junta de andalucia to make a ruling.
where does this leave me ,am I entitled to some form of compensation ,would appreciate your help

james cottnam


Maria de Castro said:
Thursday, June 26, 2008 @ 4:05 PM

You are entitled to both compensation ( price reduction) and cancellation of the contract with refund of all money paid plus legal interests.


Tom Cullen said:
Monday, June 30, 2008 @ 3:55 PM

When we bought on our development, we were told that there would be a swimming pool and sports complex included, and it was also in their publicity brochures. We have since been told that they are not building the pool and complex, but the local council is, but they dont know when. We have been misled on this development. What are our entitlements and legal standing on this issue.


Maria de Castro said:
Monday, July 7, 2008 @ 4:49 AM

Publicity is part of the contract, so, according to what you just have said, you are entitled to cancellation and refund of all money paid.


Anne Phillips said:
Monday, July 28, 2008 @ 5:59 PM

Hi I bought an off plan link detahced villa in Dec 2006,completion was set for Dec 2007. At that time I had a mortgage lined up and i was ready to complete and then just before the completion was due I was advised of a delay until April/May with no explanation. Then after much badgering another delay ocurred until June 2008, and then a further delay now until Sept 2008. The contract states delays can ocurr if they come under the heading 'imponderable circumstances' but I cannot find out the real reason for the delays as my selling agent just states all delays will come under this heading. What can I do?


Mrs Maria Stevens said:
Wednesday, July 30, 2008 @ 8:46 PM

Hi Maria,
I ive put down a pecentage on a property in larsol dona julia project.
The ocmpletion date was set forearly 2009 and i have been advised to sign another ppc as they are now looking to complete in 2010.
I've been on dona julia complex where the 5* hyatt hotel is going to be and they larsol hasn't started building yet.
I have been down to their office in Estopona and no one has been able to explain wots going on aand wen likely it's they are goig to start building. ADH who sold us the off plan property and Larsol has not kept intouch.
At one point I did sk the lawyers ofSpain to provide me with a cpy of the bank guarantee and again hat was ignored and I am still in the dark, the only thing I do now is drive up to the plot hoping to see some development.
can you please advise as to where I stand and what can I d. I feel so useless!

Regards

Maria



Mrs Maria Stevens said:
Wednesday, July 30, 2008 @ 8:50 PM

Hi Maria,
I have put down a deposit on a property in larsol dona julia project.
The completion date was set for early 2009 and I have been advised to sign another ppc as they are now looking to complete in 2010.
I've been on the dona julia complex where the 5* hyatt hotel is going to be built or in the process but and they larsol hasn't started building yet.
I have been down to their office in Estopona and no one has been able to explain what's going on and when it's likely for them to start building. ADH who sold us the off plan property and Larsol has not kept intouch at all.
I have been doing al the chasing to no avail.
At one point I did ask the lawyers of Spain to provide me with a copy of the bank guarantee and again that was ignored and I am still in the dark, the only thing I do now is drive up to the plot hoping to see some development.
can you please advise as to where I stand and what can I d. I feel so useless!

Regards

Maria



Mrs Maria Stevens said:
Wednesday, July 30, 2008 @ 8:51 PM

Hi Maria,
I have put down a deposit on a property in larsol dona julia project.
The completion date was set for early 2009 and I have been advised to sign another ppc as they are now looking to complete in 2010.
I've been on the dona julia complex where the 5* hyatt hotel is going to be built or in the process but and they larsol hasn't started building yet.
I have been down to their office in Estopona and no one has been able to explain what's going on and when it's likely for them to start building. ADH who sold us the off plan property and Larsol has not kept intouch at all.
I have been doing al the chasing to no avail.
At one point I did ask the lawyers of Spain to provide me with a copy of the bank guarantee and again that was ignored and I am still in the dark, the only thing I do now is drive up to the plot hoping to see some development.
can you please advise as to where I stand and what can I d. I feel so useless!

Regards

Maria



Mrs Maria Stevens said:
Wednesday, July 30, 2008 @ 8:52 PM

Hi Maria,
I have put down a deposit on a property in larsol dona julia project.
The completion date was set for early 2009 and I have been advised to sign another ppc as they are now looking to complete in 2010.
I've been on the dona julia complex where the 5* hyatt hotel is going to be built or in the process but and they larsol hasn't started building yet.
I have been down to their office in Estopona and no one has been able to explain what's going on and when it's likely for them to start building. ADH who sold us the off plan property and Larsol has not kept intouch at all.
I have been doing al the chasing to no avail.
At one point I did ask the lawyers of Spain to provide me with a copy of the bank guarantee and again that was ignored and I am still in the dark, the only thing I do now is drive up to the plot hoping to see some development.
can you please advise as to where I stand and what can I d. I feel so useless!

Regards

Maria



Maria de Castro said:
Saturday, August 30, 2008 @ 8:45 AM

Anne Philips: You can act for either price compensation or cancellation in your case. I would be pleased to send to you a couple of articles regarding your problem if you email me to: mldecastro at costaluzlawyers.es or marialuisa at costaluzlawyers.es.
Apologies for not responding earlier.

Maria Stevens: There are different possibilities in your case, but of course, if you do not want to grant an extension for the completion, you are not legally obligued to do so. Of course ask for the hard copy of your Bank Guarantee.


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