Going through the courts to get deposit back from developer

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19 Jul 2014 15:49 by bracket Star rating. 3 posts Send private message

Hello everyone,  I have been trying to get my deposit back from a developer for about 5 years and have been through the local courts with no success.  The developer was 6 months late on the build and by then the market was falling and the property had devalued but they still wanted me to complete at the contractual price.  I am in the process of deciding whether to go as far as the Supreme Court for a ruling or whether to walk away from the deposit which is a big sum.  Has anyone else had any experience of taking a developer through the Courts?  I should have got my deposit from the bank guarantee when the builder was late in the first place but I had a useless Lawyer at the time and was not given this advice.  I don't know whether to take the risk of going to the Supreme Court. And would I get my money even then?  Any info or experiences would be much appreciated.  Have a good lawyer now but they haven't got a crystal ball !





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19 Jul 2014 18:35 by ads Star rating. 4021 posts Send private message

Maria has recently advised in legal tip 1178 http://www.eyeonspain.com/blogs/costaluz/13428/Legal-tip-1178-NEW-Case-won-in-Corvera-Phase-III.aspx

  “Law 57/68 and its strongly protective spirit stablishes that any time extension needs to be express and written, with a new specific deadline, as a clear new clause of the contract.

 

Also there appears to have been a recent Supreme Court ruling relating to delays as Maria advised “Every delay is cancellatory under Law 57/68. “ within her legal tip 1176

 http://www.eyeonspain.com/blogs/costaluz/13322/Legal-tip-1176-NEW-Supreme-Court-says-every-delay-brings-a-cancellation-under-Law-5768.aspx

 

So perhaps the question to ask is, if the SC has already issued a ruling in this regard and you have no new clause signed by both parties defining a new deadline, (and annexed to your purchase contract), then can these important legal points (precedents) be used to challenge any subsequent enforcement by the developer, or do you still need to go to Supreme Court? Why would this be necessary given the recent ruling by the SC relating to delays? Is this the only way to gain cancellation of contract? Also, bear in mind that the SC appears to rarely accept individual cases for consideration that fail to meet very specific monetary criteria…..

 

If the SC fail to accept your case for consideration then how do you gain cancellation of contract to regain your monies if the courts have not recognised the developer’s failure to adhere to existing law 57/68? Did you win at first instance court, did the developer appeal  and subsequently have the first instance decision overturned without due knowledge and consideration of the strongly protective clauses in Ley 57/68 relating to delays?

 

Of equal concern is the following. What happens in cases where the judiciary have not acknowledged all clauses relating to Ley 57/68 in their rulings and the SC subsequently rejects admission for consideration? Why should an innocent purchaser be denied justice according to existing law under these circumstances? These are vital  issues that many have been fighting for, for YEARS.

Perhaps Maria can clarify?

 

 

 

 

 

 

 

 





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19 Jul 2014 22:11 by bracket Star rating. 3 posts Send private message

Ads, thank you for that info and I have not had any extension agreed or in writing.  Maria is helping me but we don't know what the SC will decide.  I have lost both the local courts decisions and so the SC would need to overrule these.  I am interested in your points though about having an extension in the time agreed which did not happen.  The other issue is how likely that the developer has the money to return my deposit?  So even if I win, will I lose?

Thanks for your response which is v. useful.





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19 Jul 2014 23:31 by ads Star rating. 4021 posts Send private message

Can I ask what area of Spain are the local courts that have issued your rulings? Also have you gained a recent solvency report on the status of your developer?

Sadly this has always been a contentious issue ...... by the time your case is resolved, will the court delays (over which you have no control) have in effect compromised your ability to regain your monies from the developer? There are, I suspect, thousands who have been compromised by such circumstances which is now why it is essential that the judiciary and Supreme courts recognise moral authority and ensure that Ley 57/68 is consistently adhered to in its entirety.

Good luck to you and your legal counsel.

 


This message was last edited by ads on 19/07/2014.



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20 Jul 2014 12:07 by bracket Star rating. 3 posts Send private message

Thanks for the reply and the courts involved were local to San Roque and Algeceras which is in the same area that the developer has been building.  I think the ruling you referred to as a recent case that may set a precedent, is where the petition is against the bank holding the deposit?  My case goes back to a time before this and it was the builder that took me to court in the first place and he won both the case and my subsequent appeal.  The only last step open to me is the SC on the point of law, which is does a 6 month delay in construction amount to a breach of contract.  I know I should have acted at the time but I was relying on poor legal advice so now I am in this mess. There is a chance that the developer may want to avoid going to the SC and make an offer to settle.  But by now I have spent a shed load of money on legal fees let alone the original deposit on the property.  You sound very clued up and thank you for sparing the time to write to me.





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