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Having recently lost our court case against Polaris world, we are being forced to complete and face the prospect of trying to get an €88,000 mortgage on a property worth €50, we are willing to loose our deposit but I understand if we don't complete they are able to seize assets in the UK, I'd be grateful for any advice! Thanks
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I would advise contacting Maria De Castro (Costa Luz Lawyers) who posts on this site before you do anything or sign anything further. If anyone can help she can.
This message was last edited by kelju on 25/04/2013.
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Sarah W, send us some more details and I will try to advise. it's not always back and white, there is normaly a grey area somewhere
_______________________
Air Conditioning, Energy Assessor+Technical Services,
chris@homecomforts.es
http://www.homecomforts.es/
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Can I ask on what grounds you took Polaris World to Court on??? I find it hard to believe that any Judge in this day and age would side with such a dreadful company like Polaris World, especially when the Contracts they have handed out to innocent buyers over the years, break the vast majority of EU consumer rights!!!
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Can I ask on what grounds you took Polaris World to Court on??? I find it hard to believe that any Judge in this day and age would side with such a dreadful company like Polaris World, especially when the Contracts they have handed out to innocent buyers over the years, break the vast majority of EU consumer rights!!!
Look at this another way, they entered into a contract to buy a property from a house builder, paid a deposit, now the house has gone down in value, so they say, or perhaps the buyers have had second thoughts about buying it so they want out, if every company said yes it's okay to do this, what kind of business would they have after it got about that you just changed your mind as and when you want to, the builder might have had more then enough back out for many different reasons and now they have said "No more, enough is enough"
From the Judges point of view it matters not that this house builder is one of the bad ones because he can only judge the case on the facts in hand about this case, not past and what the company has done to others.
The other weird thing is the buyer says the house is now worth only 50,000€ but have to get a mortgage for 88.000€, how is, i suppose, a new house valued at 50,000€?, who values a new uninhabited house? when others must have sold sometime at the 88,000€, also the time difference is wrong, how long ago was the deal struck at 88,000€, for it to drop down to this 50,000€ value .
Did the buyer know in the first place the house was to be bought at 88,000€, if yes then surely this amount must have been asked for when obtaining the mortgage, if the builder asked 50,000€ then put it up higher...another story. Perhaps it was agreed to buy before a mortgage was even obtained.
Four days have passed since advice was asked for, Chrisinspain has asked for more information to help out with advice, come on give it over if you want help.
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Put your uk assets in some body else's name( children etc ).it will take ages for them to chase you, that's if they do. plenty of people did not complete are you on Las Terrazas de la Torre ????
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friends of ours also lost their case against Polaris world - it was an abusive clauses case . Polaris simply cancelled the contract and kept the deposit also our friends had to pay the legal costs . Sometimes a case just isnt strong enough to win . Its no ones fault that prices have tumbled ( well except the recession) and its unreasonable to expect that builders will compensate clients for market failures .Our friends didnt appeal their lawyer got Polaris to agree to keep the deposit and get their legal fees paid and no further action is possible against any party..
I know abuse will follow this remark but its not always the constructors fault we are adults and when we enter a contract we are equally bound by its terms .
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I know abuse will follow this remark but its not always the constructors fault we are adults and when we enter a contract we are equally bound by its terms .
Exactly my point, otherwise why draw up contracts for anything.
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If they started the enforcement, I would advise you to deffend it ( among other possibilities) on the lack of finances, following strict rules set by the Supreme Court for this type of cases to succeed
_______________________
Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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If there has been alleged professional negligency by a lawyer and waiving of inalienable rights according to Ley 57/68 then can this be used as a realistic means of defence to challenge an enforcement of this nature?
This message was last edited by ads on 07/05/2013.
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ads,
No, it cannot as opposition to enforcement.
Yes, through a different action as compensation of damages. If we can prove a clear , undoubtable case-effect relationship between negligency of the lawyer and damages suffered.
_______________________
Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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Thank you Maria.
What are the strict rules set by the Supreme Court that you made reference to with relation to the lack of finances?
Also could an enforcement of this nature be challenged if the developer, by putting their signature to a BG that for whatever reason (e.g. unrecognised in Spain, post-dated beyond contract end date, etc. ) subsequently denied the purchaser their inalienable rights according to Ley 57/68? This message was last edited by ads on 08/05/2013.
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We are in exactly the same position. After the court ruled against us Polaris offered to pay our court fees if we handed our property back and forfeited our deposit of 68k. Our claim was based on the abusive contract, delay in completion, lack of advertised facilities and also the fact that even after over 40 requests we never received a bank guarantee from 2006. The judge stated that the bank guarantee issued wasn't valid as it only applies to unfinished properties which means that because of the 4 1/2 years that it took the Spanish legal system to hear our case Polaris finished our property. We agreed in 2006 and were told that completion would be at the end of 2009 but I think this was just to get us to sign. We have just been told today that Polaris have decided that they won't pay the legal fees but now want 10k for them. Our solicitors have also sent us a bill for 17.5k just for their time which is ridiculous considering our friends paid 3200 for the same issue and decision. I have just contacted the Foreign and Commonwealth office as we kept our side of the contract re deposits but Polaris did not have to keep theirs.
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Maria,
Many years ago you identified the following
By way of provision 3.1 of same law (from 1968):
Once the initium date or expiration deadline is met and house is not started or finished on time, the cessionary (buyer) will be able to choose between contract cancellation and refund of all money paid plus interests, or granting of contract extension, which will be exposed in an additional clause of the contract, with specification of the new completion deadline.
My questions therefore are as follows:
- For those who have "had their contracts exposed with additional clause of the contract with specification of the new completion deadline", does the purchaser have to agree in writing to this additional clause, or can the conveyancing lawyer , under POA, provide an additional clause without seeking the purchaser's agreement to the contract extension? Can changes to the contract of this significant nature be applied without the written agreement from the purchaser? What happens if an additional clause was never written into the contract or appended to the contract?
- Also what is the definition of "unfinished property"? Is a property that has not received an LFO by the contract end date (or any exposed contract extension deadline), nor has met any valid force majeure criteria, be deemed an unfinished property according to Ley 57/68?
- When the lawsuit for contract cancellation is officially submitted into court and an LFO has not been issued at that point in time, can this qualifying criteria for contract cancellation be subsequently challenged by the judge, if in the intervening period before the lawsuit reaches a ruling, the LFO is issued? In other words, once the lawsuit has been submitted to court, should the judge only look to the evidence presented at that time, or can a later issue of LFO and subsequent building completion be taken into account? Surely court delays of this nature should not be allowed to impact judicial rulings?
- Would a subsequent agreement to forfeit the deposit under specific conditions, as Darren has identified below, which has been renegued upon by the developer, enable him to appeal the original judicial ruling (if he met the criteria for unfinished property) and thereby gain return of his deposited monies?
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Ads
Thanks for the comments. As you mention I cannot understand why we are being penalised for the Spanish legal system delays which in effect gave Polaris World the opportunity to finish our apartment (although not the facilities as advertised.
I should also mention that we sent a Burofax to Polaris World in January 2009 formally asking for contract cancellation re lack of license, delays and lack of Bank Guarantees which we never received a reply to. All these issues had already been proved successful at court yet because ours was delayed we were ruled against! Is the lack of answer to a Burofax not a breach of Spanish law?
I mistyped 2009 in my original message as we were originally repeatedly promised the apartment would be completed at the end of Dec 2008.
I believe that there may be some Polaris World cases similar to ours being heard at the Supreme Court. If successful will this impact on decisions already made such as ours i.e. overturn them?
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http://www.eyeonspain.com/blogs/costaluz/10234/Legal-tip-947-NEW--Spain-Supreme-Court--and-lack-of-financiation.aspx
Legal tip 947. NEW! Spain Supreme Court and lack of financiation
14 May 2013 @ 16:27
In a decision dated January 13rd this year, the First Chamber of the Supreme Court confirmed the cancellation of a property purchase contract due to breach of the obligation of the seller to provide finances to the buyer.
According to claimants, seller had breached its contract, which expressly stated the right of subrogation of mortgage loan of developers, thereby ensuring obtaining the necessary funding for housing acquisition.
The Supreme Court had stated on previous occassions that the obligation to provide financing by developers is incidental ( non essential- no cancellatory), as reflected in the contract as an activity duty rather than a result duty, being the buyer, who is obliged to manage the mortgage himself.
However, in this new case, the reservation contract made by the seller included an offer of great commercial appeal, which was that "in any case, if you want, you can subrogate the mortgage of the seller". The developer promised that the bank would agree to subrogation and did not act sufficiently to fulfil this promise.
The Sentence keeps saying that if the developer was not in a position to offer an unconditoned financing offer to the buyer, this should have not been promised to the consumer on the contract.
Good for the pro-consumer Supreme Court!
_______________________
Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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