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Maria and all
With respect, it is not just Spanish lawyers but the system of Justice in Spain that has to demonstrate a commitment to protecting those "damaged" by these events. The reputation of both are at stake as all too many successful judgements are being compromised by abusive delays, with no apparent time constraints in place to protect the innocent consumer..
Isn't it ironic that you refer to timescale constraints protecting legal professionals, and yet consumers are continually "damaged" by the devastating effects from this "non application" of justice.
In the interim, while consumers await necessary reform, all innocent victims who surely have a right to justice from an EU member state, should be protected by a compensation fund (if necessary taken from Spain's EU contribution). What do you think to this suggestion?
This message was last edited by ads on 25/02/2011.
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Maria
Of course it should happen but the problem is I feel it never happen will.
I see everyday what goes on and it wears you down bit by bit. It is death by a thousand cuts.
I agree there are some good, honest, hardworking Spanish lawyers (probably only 1 in 10) but I am also critical of them becuase they will not unite or speak out against their colleagues. These lawyers must unite and call for change.
This week the topic of discussion at the colegio de abogados de malaga is gowns so they can dress up and appear all important! I don't recall receiving any email explaining how they were going to improve disciplinary hearings!
El Colegio de Málaga es uno de los que mantiene en España un sistema de entrega de togas, lo que supone una facilidad para los letrados al acudir a las vistas.
El incremento incesante del número de colegiados hace sin embargo necesario establecer unos mínimos criterios y requisitos que afectan a la entrega y recogida de las togas.
Necesariamente debe anotarse el número de colegiado al solicitarla, e igualmente al entregarla firmar en el mismo registro; es la manera de garantizar la devolución de las togas y de esta forma mantener un servicio que nos proporciona gran comodidad.
También debemos ser conscientes de que en horas punta es necesario acudir con algo de tiempo, por el gran número de compañeros que coinciden en el mostrador, y que la entrega requiere un mínimo de tiempo y no puede ser instantánea.
El servicio de entrega y recogida de togas en la Ciudad de la Justicia necesita de la colaboración de todos.
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Dear All,
What a fantastic and valuable lesson..............top class Faro.
Can I award superstar status immediately?
I have blamed the lawyer from the outset he has always been the prime criminal to me.
He sat in on the developer and agents presentation and endorsed everything, even to taking the initial reservation payment.
If "European Legal Solutions" is operating in Spain and UK will they have UK control and indemnity levels.
Can I forget the developer and go straight for the lawyer?
Sorry to over enthuse but I particularly liked..............
"You cannot in any way compare a UK solicitor to a Spanish lawyer and that really is the crux of the problem. People came to Spain and thought a Spanish lawyer would look after them the same way an English solicitor would and with the same duty of care."
That was indeed my downfall.
Regards
Norman
_______________________
N. Sands
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Norman queried "Can I forget the developer and go straight for the lawyer? "
That has certainly not been the advice that we have received to date, but it's an important question that needs clarification.
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Just for additional info.....
I spent a year trying to get the Law Socity in England involved with our problems regarding Spanish lawyers. In their last email (which they asked to remain confidential - of course they did!) they told me that it is not unusual for any complaints sent to individual Colegios be left unanswered. And if the Colegio decides to take action against a particular lawyer it would be common practice not to inform the person making the complaint. Sounds more like a cover-up that a regulatory body to me.
As far as the Law Society goes I've personally reached the end of the road. In my opinion, they really don't want to damage relationships or 'rock boats'. Rock the Boat! It needs to be vigorously shaken.
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Hi Suzie,
I hope Norman doesn't get wind of this ?
" Now then where is the nearest Gibbet or Guillotine ?" ( lmao)
This message was last edited by belucky358 on 25/02/2011.
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Suzie - we write we email we phone (all in Spanish) the colegio we go in person but still they will not hear our complaint or deal with the matter (a complaint against another lawyer).
How can you respect a body like that and we are members and we pay fees - absolute joke!
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May I (humbly) post some facts here - as far as I understand them - as this thread may seem very confusing to some.
1. Banks are not clairvoyants. A Bank Guarantee can only be issued when there is something to guarantee & they are not instantaneous.
2. The developer should place investors' funds into a bank escrow account and then provide the bank with the details of the investor. These details - name, address, nationality, passport number etc etc have to be clearly stated on the BG. It is impossible for a bank to prepare these before any payment is deposited in the correct manner, with the necessary information.
3. As far as I am aware developers are the only people currently who can be fined by the courts for not providing a BG. So statements that infer the bank is wholly responsible, in my view, are extremely misleading.
Faro - You forgot faxing, twittering, facebooking etc etc!  But at least more people are now aware of what is going on.
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Dear Suzie:
Just provision 1.2 of Law 57/68:
"For the opening of these accounts or deposits ( it refers to accounts/deposits where purchasers advanced payments are placed) the Banking institution or Savings bank, under its responsibility, will demand the guarantee to which the previous condition refers.
_______________________
Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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Below is a common clause or something similar that appeared in a lot of contracts.
Transcurrido un mes despues de entregada este cantidad, se le entregara a la parte compradora, cuando asi lo solicite, aval garantizando el importe total entregado hasta esa fecha. (sorry no accents!)
it translates within one month of having paid an amount the developer would give to the buyer, ONLY IF REQUESTED, a guarantee (aval) for the amount paid.
Most lawyers did not ask for the guarantee/aval. The question is if the stage payment was not made via your appointed lawyer would they then argue it was not their resposibility to ask for and collect the guarantee/aval?
Of course even where the guarantee/aval was issued it more than likely had an expiry date.
Even today guarantees/avals are still being issued with expiry dates which are very close to the anticipated completion date as per the contract - nothing has changed and probably never will ...............
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Hi Suzie,
I am glad that I am not the only one who is confused about this Bank Guarantee, and who does what, where, and when ? ?
Please correct me if I am wrong but should it all go along these lines :-
1) Buyer pays his deposit to Agent or Lawyer, aswell as giving his full details .
2) Agent or Lawyer forwards money to the seller who then deposits money in an Escrow Bank Account,,whilst giving the Bank the full details of the buyer.
3) Banker completes all the necessary details in the Bank Guarantee and forwards same to the seller
4) The Contract is drawn up then signed by the buyer and seller, and the buyer is given his Bank Guarantee.
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Belucky – a deposit should never be paid to an agent and this was a mistake made by many.
Part of the confusion lies in the fact that there were good contracts and bad contracts and many Spanish lawyers would not stand up to developers and re-negotiate contracts and simply told buyers they had to accept the developers contract as it was …..
A good contract would have a clause something like this:-
El abono de las cantidades estipuladas en los anteriores puntos….., los hará EL COMPRADOR a LA VENDEDORA, mediante ingresos en la cuenta corriente especial y exclusiva …………………………………., cuyo CÓDIGO INTERNACIONAL CUENTA BANCARIA (IBAN) es: ………………………………, código swift, o Código de Identificación Bancario (BIC), …………………….. que mantiene ……………………………….,. en Banco ………………... ………………………………… ó mediante talón conformado ó talón bancario.
The bank account to where the stage payments were to be deposited was clearly stipulated in the contract and IBAN & BIC codes given etc. A copy of the master policy would have been supplied to buyer’s lawyer etc. Funds should have been deposited into this account by either buyer or buyer’s lawyer but NEVER passed via estate agent. In many problem cases developers even dispute sums they received as they were initially deposited with UK or Spanish property agents etc so sometimes very hard to follow the trail and of course commissions were taken along the way.
So paid correctly and providing the buyer’s lawyer followed up and collected bank guarantees then you had a “good” guarantee. But as I mentioned before it was and it still is common practice to include an expiry date so even good guarenteees became bad. Of course we can argue a guarantee should not have an expiry date and therefore cannot expire …
An example of a badly worded contract would be:-
Que cumpliendo con lo exigido por la ley 57/68 con el fin de garantizar las cantidades anticipadas por los compradores, LA VENDEDORA, concertara una poliza de afianzamiento, con la entidad financiera correspondiente mediente aval bancario.
The above clause says that according to law 57/68 the developer would apply for a guarantee policy but no details were given as to the bank or insurance company providing the guarantee nor was the IBAN/BIC code of the protected account stated in the contract.
What tended to happen with the last example was the developer would not bother putting in place a bank guarantee at all as he knew lawyers (especially those that sat in the office of the estate agent or were the agents recommedned lawyer) would not follow up.
Another problem in Spain is there is no one way of doing something and Spain is very much a frontier country in that there are no real laws or laws are not enforced. Yes there is written laws but they have little meaning and are not followed in any way….. What’s needed is a sheriff to bring law and order to what is little better than the wild west.
Anyone with a good guarantee should have been able to recover deposits (these were the good and easy cases!) but many fall into the bad case category and did not receive any guarantees in the first place and have liitle in the way of proof that deposits paid ever got to the Spanish developer and of course in the meantime many of these Spanish developers have collapsed and the UK/Spanish agents have long since vanished.
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Dear All,
we have had Techno telling us that he easily altered a standard "off-the-shelf" purchase contract to satisfy his concerns but Faro tells us that.............
"Part of the confusion lies in the fact that there were good contracts and bad contracts and many Spanish lawyers would not stand up to developers and re-negotiate contracts and simply told buyers they had to accept the developers contract as it was ….."
It occurs to me that as "consumers" we should have a model standard off-plan contract for all to use.
Perhaps even a model procedure to follow.
That would give us every possible protection legally.
I don't know whether there is already anything incorporated in "Spain Uncut"?
Possibly we could even print them off blank and sell them at the property shows?
Can you imagine such a thing approved by Lawbird, Maria, Faro and others, that would surely shake things up.
Perhaps even some sort of claw back fee could be included for every time it was used?
If we make things better for the future then at least something would have been achieved.
Regards
Norman
This message was last edited by normansands on 01/03/2011.
_______________________
N. Sands
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is this not for the Spanish housing minister (in consultaion with lawyers/building/bank sector) to say what should be included in an off-plan contract and also a bank guarantee and set out severe financial penalties for any company or bank in breach - all we need is for the bank to be made ultimately liable if it is in any way involved in off-plan properties.
Why do banks still insist on expiry dates in a guarantee/aval?
SL/SA companies engaging in off-plan activities should be fully bonded in the same way a travel company is and that bond or bank guarantee needs to vary depending on level of activity. This would keep the cowboys out and provide some level of protection should an SL/SA company collapse. To secure a bond a director or administrator would need to either pay bond or pledge assets or house so his neck would be on the line!!!
We need to tighten on asset stripping and transferring assets to wife/company - courts need to be able to lift veil of incorporation and go back an unravel any messing around to create worthless company or individual etc
But I think as we move forward we will see a different type of off-plan activity and maybe in due course a buyer should not have to pay more than a 10% deposit until completion.
We can't have situations whereby buyers funded acquisition of land, plans and building and developer took mega profit and for zero investment.
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Faro: Expiry dates on Bank Guarantees have laerady been declared null and void by many Appeal Courts and Bank of Spain.
With our shortfalls, as every system, Spain has a solid legal system. For instance Law 57/68, which prevented real estate speculation and if it had been fully complied with, we all would be in a completely different situation.
Courts and Judges are applying this Law quite strong and rightly, now Bar Associations would have to take measure on those lawyers who defaulted on obtaining them for their clients, bringing their important contribution to the current mess we are in right now.
_______________________
Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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Yes - but banks are still including expiry dates in the guarantee/aval. Taylor Wimpey (Banca March) are an example of a developer still issuing bank guarantees in this format. From now on every time I come across a newly issued badly worded document I am going to name and shame and if we all keep doing that then maybe things will improve for the next wave of investors.
So why are we not seeing properly issued bank guarantees?
I am still seeing recently issued badly worded and very onerous or one-sided contracts - still no change!
Also I am not aware of any Spanish colegios taking disciplinary action against its members. They are spineless organisations.
You can say you have laws and a solid legal system ONLY when it is seen to function as it should and protect consumers and that's certainly not the case at the moment.
The problem is most are caught between a rock and a hard place and having lost all their life savings have had to pay up to EUR6,000 for try and recover deposits paid and more if it goes on to appeal or enforcement etc when many are what I would descibe as weak or bad cases in my opinion and also that of other lawyers have little chance of success as things currently stand.
When I review a file I grade the likely success based on contract, guarantee or lack of it, reason for not completing, financial status of developer etc and then I tell people even if you win it does not mean you will get back your deposits and it could all take many years.
Probably what we need to see is a message from the bench telling developers/banks Judges will rule harshly if in their opinion the matter should have been settled out of court or the case should not have come before the courts in the first place - ie evidence of pre-action protocols. You know if you send a burofax to a developer or bank they will not respond ..... This might help shift the backlog.
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Hi Maria,
Regarding your statement :-
With our shortfalls, as every system, Spain has a solid legal system. For instance Law 57/68, which prevented real estate speculation and if it had been fully complied with, we all would be in a completely different situation.
How are you able to say "Spain has a solid legal system" then quote, as an example, the very law, that a lot of Spanish Developers, Bankers, and Lawyers, do not fully comply with.
In the UK I would say we have Good Laws and Bad Laws but in Spain, it appears that you have a third category the Laws you just ignore !
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Law 57/68 is being applied more and better. We just need a bit more of time
_______________________
Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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Hi Maria,
I'm sorry, but, if this had been a newish law that had been recently passed, I would accept what you say and that you need a bit more time, however since it has been the law since 1968, how much time do you want ?? ?
I don't think you can have, the lack of time, as an excuse, or defend the antics of your colleagues, who have blatantly ignored this law for FORTY TWO YEARS
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Belucky:completely agree that is is time for this Law to be fully enforced ( specially provision 1.2 of the same)
_______________________
Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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