Legal Action Against Non-completion

I have heard that Corvera are threatening court cases against anyone who does not complete the purchase . Despite having 30%

of the money and the property , they will seek the full cost plus some damages .

My solicitor thinks that , even if they won the case ,  it would only apply to spanish assets and not be enforceable in the UK . Does anyone have any info. on this ?

Has any action been taken at Corvera yet , I believe it would take a year or two to get to court .

Roda Golf is a few years ahead as a development , do you know of any cases being started there by the developer ?

I suggest that you post this query up onto the main forum and ask for Maria to comment beacause there are examples on there where judgements made in Spain, under the EU legal system, where judgements have been enforced  and actioned in the UK against UK assets, but I do not claim to be an expert

As with most things with lawyers in Spain if he says that if it cannot be enforced in the UK get him to put this is writing so that if things go wrong you can claim against their professional indemnity insurance 

As I don´t have the expertise I asked the question on the main forum for you and received the following response

A Court decission in Spain can be cashed against assets worldwide.

_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

marias de castros  posting on main forum     15 years to claim against the developer

if people want the facalaties as advertised    why not follow her advice and agree to complete when calidona complete the facalaties as advertised ??  the more people that do this it is then in calidonas interest to finish the resorts .

spot on Searay.

Obviously people make their own minds up on whether they want to complete or not but if you havent got what you paid for then why not wait until you have? I guess a chat with a solicitor of Marias expertise in this field is key to whatever decision you take.

re the query about developers chasing you for money there have been so many differing theories on this  throughout this forum but obviously Maria is the expert . I think it is worth pointing out that although it is possible to do the actual process of going about it is both very lengthy and very costly especially if you are not actually residng in spain. No matter that Britain is part of the European union i still find it difficult to believe that a British court would be dictated to by a Spanish developer! As for the rest of the world -  well i think its a safe bet that they wouldnt stand a chance. But obviously it goes without saying get proper legal advice on every aspect- i dont think its a simple case of yes or no.

There was great debate about this topic previously on the forum on threads like Liability and walking away (see webpage -www.eyeonspain.com/community-forum/12323/liability-and-walking-away.aspx?pageno=0  ).

I believe there was no consensus despite many people asking their lawyers, but the general opinion was that they could not chase you for your UK assets although as I said this was not the opinion of all the lawyers. I believe Roy is correct when he says that people have been previously chased for their UK assets  but this might depend on the wording of the contract and if my memory serves me right, ours says something to the effect that liability is limited to the deposit paid so far, although again I believe this is open to debate. Unfortunately it appears that you can ask six lawyers their opinion on a section of contract and you can get six different opinions. I should also add that I am in the process of trying to recover my deposit.

Searay - I completely agree, they promised certain things and they should deliver before we complete.

kev

Please note that I was trying to keep my response here very simple, nothing to do with the rights and wrongs of the facilities or completion just what happens if there is a judgement against the person in The Spanish Courts and can they come after you in the UK so I thought Maria would be the best expert to answer

The danger is that if somebody goes to Court, and ignores the case, and does not defend or appeal, the judgement will be given to the developer and the payment can be easily enforced in another EU country and of course to mount a defence costs more money

This is not the advice being givem to this client by the lawyer regarrding the enforcement

To avoid this therefore you must defend or appeal the Court case

 We too read the contract which refers solely to the loss of the deposit. it does not mention pursuit of cllients for any other monies. But the contract aso seems to think that our property would have been built some months ago. The Phas 3 properties by the roundabout seem to be problematic.  Why I wonder?  Can the developers hold the money indefinately?  Is there a limitation on it?

There is little doubt that the potential is there for the developers to "go after UK assets" if they get a judgment against an individual who does not complete, or after Irish, French or other EC country assets, if the individual is domiciled in the UK, Ireland or other EC country. This was provided for in EC Regulation No. 44 of 2001. As Roy points out this can be done very easily in the case where the proceedings in Spain are not contested as EC Regulation No. 805/2004 provides for this. In Ireland these regulations were implemented into Irish law by way of Statutory Instruments and no doubt similar provisions were implemented in the UK to allow for the recognition and enforcement of judgments given in another EC country.

The developers may be slow however to seek to register a judgment against one's family home by e.g. registering a judgment as a mortgage against the property and ultimately seeking a sale of the property to get the money awarded by the judgment but we can't be sure of this at this stage.

Kev 2 you say that you have taken steps to get your deposit back. I'd consider going down this route myself if I thought there was a possibiltiy of succeeding. As regards the potential for the developers to hold one's deposit indefinitely I would think that courts would not approve of such an open ended arrangement. However it appears that a Spanish court has fairly recently held that Calidona could not be held responsible for the delays which were blamed on the Local Authority which was very slow to process and issue building licences etc.

Crosser

I think the problem is that there may be a number of different contracts so as normal the advice remains get help from a qualified independant lawyer regarding what the developer may be able to claim

If you get  Court date make sure that you do something in response raher that do, what a number of buyers are doing, just ignoring, it as if the developer does go to Court and the case is not contested they will win the case plus a large amount of costs and interest which may add tens of thousands of euros to the costs

I think that isn´t now in dispute is that if a judgement is obtained in a Spanish Court it can be enforced against UK assets and there is evidence, given the economic situation, more and more Spanish developers are doing this 

If you are in financial difficulty, can prove that your financial situation has changed and that you cannot get a mortgage, there is consumer law in place that will enable you to cancel the contract

Again this response is not in relationship to any of the issues regarding facilities but is simply saying if you are in this siuation get professional advice

Hi Crosser

  I suggest that you contact an independent lawyer that has studied this case, listen to the legal arguments, and then see if you believe you will recover your deposit. I strongly suspect you will have a change of mind, I've sent you a PM suggesting a lawyer. Lets just say when it comes to getting my deposit back I am not a worried man.

kev

This message was last edited by kev2 on 22/11/2009.

Hi,

Interesting posts - A lot hinges on legal advice, how confident you are of your case, the circumstances surrounding the case and the appeals procedure. For example if you have a fair contract (in the eyes of Spanish Law), a developer that has honoured all its advertised commitments on time and with the requisite standard, then you will have a piss poor case to answer and will loose. As always, get advice from a good independent solicitor such as a contracts lawyer who has experience of dealing with Spanish Property Issues. One thing you must never do is let Reg 44 of 2001 take over and let the case go uncontested, defined as:

Uncontested: the debtor has not objected to the claim in the course of court proceedings or has not appeared in court or has expressly agreed that the claim exists and is justified in the course of court proceedings, including by means of a settlement or in an authentic instrument.

Regards,

Ash