Spanish Justice ?? where is it ? -- take care when buying a property with contracts and Spanish Law

Hi Maria

I am new to your web site looking for guidance and I would like to bring my situation to the attention of your many followers to learn from the mistake of not having a Property Contract correctly assessed before signing. From the many examples of satisfied clients it does seem that I am not alone in this predicament.  However I would like to comment on what I now perceive of the inadequate and inept Spanish Justice system and I note your success in obtaining justice for many comparable situations (sorry this is a little lengthy) 

Similar to many other people the property purchase goes back to 2007 where myself and 2 other colleagues wanted to buy a property in Spain to use as a base for our Ltd Company business,  after all this seemed to be less expensive way instead of using a hotel every other week.

We were introduced to a Company xxxx  Promotiones who after showing us around several properties we agreed in principal to purchase not providing any deposit until after we  received an English Version of the Contract. We were informed by an accountant who had been introduced to us that this was a normal Spanish Contract -- however like many what we should have done was to ask a professional Spanish expert Lawyer to assess this contract beforehand which would have prevented massive errors in our judgement and highlighted unfair contract terms.

We paid a deposit of over 28000 euros at the time and were due to make the final instalment. Also not known to ourselves was that this contract was not suitable for a Ltd Co to use and they placed individual Director names on the contract 

This Option to Purchase contract was unfair in many aspects as a summary has been detailed below by a very qualified English and Spanish Barrister whom we engaged to provide advice after the following events unfolded

At the end of 2009 the property was due to complete and with several issues now becoming apparent with this contract we decided to forgo this property purchase and activate what we thought was a cancellation clause (loss of deposit) 

However in 2010 this firm used a debt collection agency to try to obtain the balance of the contract to which we challenged immediately and informing them that the contract was unfair but at the same time these people were actively trying to sell this contract ??

In 2013 without our knowledge they proceeded with having a Court Order placed against us under the European Enforcement order Proceedings which has to be uncontested and we had to be notified about these Proceedings at each stage which they did not do.

In 2015 going though the various stages of ratifying this EEO they placed a Final Charging order on each of us which involved us having to go to the High Court to challenge this order albeit having only 20 days to hurriedly arrange a defence 

This was assessed by a High Court Master who informed us that in order to challenge this we were to take this to the Murcia Spanish Court 

We have done so and the claimants Solicitors will not allow access to the paperwork which we were  supposed to have and which is needed to validate why our appeal should be granted

This has been going on for over a year now and the legal fees are very large indeed and we are getting to the point whereby we may have to ask the Spanish National Court or the EU Court to intervene in order to obtain the right to have this order cancelled and thrown out

In  summary this case should have never made it through the Spanish Courts as they are supposed to check that we have had these papers duly served on us an allow us to challenge the Contract The Court agreed only to have the claimants refuse -- what are they hiding you may well ask-- still waiting

There was no Bank Guarantee or insurance policy offered at any time nor was there any Architects certificate 

What I am aware of is that this injustice has happened to a few people where they have been forced to pay either the balance of the contract of many thousands of pounds to release themselves from this unfair contact as they were  fearful of the consequences. But I am sure that if we  were successful this would lead also to their own challenges to what has happened

The Contract ---Barristers initial Opinion only but this speaks volumes

''' Clause 8 of the Spanish contract states that the buyer designates as their address for service of any judicial or extrajudicial notifications the address of xxxxxxxxxxxxxxxx It seems from my instructions that the Defendants were not aware of this clause although, they signed the contract and were apparently satisfied with the "translation" provided. That address is evidently where documents have been served on the Defendants in the Spanish jurisdiction and the Court was satisfied they had been properly served. The copy of the contract I have before me has been signed by the Defendants on the last page whereas it is signed by the vender s representative on each page. 1would expect the purchasers to have signed each page of such a contract and it is possible that the copy in xxxxx 's possession contains their signatures on each page. The Defendants should be asked whether they remember having signed each page of the contract.
 

6. The contract of 29th March 2007 is prejudicial to the purchasers in a number of respects and appears to infringe principles of contract law and consumer law. On the face of the contract there are various grounds on which its enforceability could have been challenged when the Defendants say they gave notice of their intention to cancel the contract in 2008. These grounds include :

1) There is no mention of a bank guarantee or insurance policy to protect the sums paid in advance so it appears that the developer was in breach of their obligations under Law 57/1968 of 27th July. 2) The contract bears the heading an Option to Purchase contract, and repeatedly refers to itself as an option to purchase contract. An option to purchase contract in Spanish law is where the purchaser pays a premium as a deposit which gives him the option to complete on the agreed terms for a fixed period, or alternatively, allows him to fail to exercise the option and forfeit the deposit paid. This is clearly what the Defendants thought they were signing in the present case. A careful reading of the First Clause of the contract, however, shows that by paying the deposit of 28.248 Euros by 3rd May 2007 the buyers are exercising the option to purchase and could thereafter be obliged to complete the purchase. The true nature of the contract is confusing for the purchaser.

3) Xxxxx was a developer who drafted the contract in its entirety for the purchasers who were consumers to sign It is well established in Spanish law that the interpretation of an obscure clause of a contract should not favour the party that is responsible for the ambiguity ( Civil Code arto 1288). 4) The Law 4/1996, of 14th June of the Consumers Statute of the region of Murcia Article 8 ( prohibits the existence of contracts that contain abusive clauses or are in breach of good faith or in breach of an equal balance between the respective obligations. S) The contract states that xxxxxx has "begun the process" to be able to construct the urbanization but makes no mention that a building licence has been granted to do so.

The Second Clause of the contract refers to the property as a thing of the future. If the building licence was not granted the development could never have been built. Significantly, the contract contains no date by which the developer was obliged to finish the property and hand it over to the buyers. Clause 2.2 simply states that xxxxx would make best efforts to finish the construction in November 2009 but that in any event it would not be considered a breach of performance by them if there was a delay as a result of unknown force majeure factors or factors affecting the start or progress of the works arising from the planning process, elimate, availability of the workforce, suppliers "or any others". The terms of exemption are so broad that it is difficult to envisage circumstances where the developer would be in breach for failing to complete over a large and undefined periodo law 7/1998 of 13th April of the General Conditions of Contracts defines as abusive terms of contracts where completion depends on the will of the vendor, or where the vendor reserves an indeterminate period to provide the serviee. Civil Code arto 1256 provides that the validity and performance of contracts cannot be left to the choice of one of the parties.

If there was no architect's certificate of completion or First Occupation Licence the Defendants could indeed have refused to complete because the administrative steps had not been complied with. Article 9.2 of the Building law (law 38/1999, of 5th November ) states that it is the obligation of the promoter "To arrange and obtain the necessary licences and administrative authorizations". Under Spanish civil law a party is only entitled to enforce a contract if he himself has complied with his obligations''
 

By all means if anyone has any constructive comments then we would appreciate it but we are looking at cost effective options only to take on this Contract which will invalidate any legal proceedings presumably in our favour but hopefully teach these people a lesson The retiurn of the deposit is secondary but I would dearly like to obtain costs against these people similar to others - having been put through so much stress and cost ?   

My advice now is to obtain the best possible advice prior to purchase and ask Maria or her team about any Spanish Property contract

Thanks to anyone taking the time to read this blog

have good day everyone

Trevor Seery

Dear Trevor:

You have said:

We have done so and the claimants Solicitors will not allow access to the paperwork which we were  supposed to have and which is needed to validate why our appeal should be granted.

If the process is in Courts, every copy of any paper of the proceeding needs to be handed to you. What does your own barrister say about this?

Good Morning Maria

Thanks for your promt reply -- the Barrister has been asking for a year on these documents to be released constantly --  and these documents as you confirm are supposed to be given to us -- however they did not do this and attempted to give the accountants firm acting for the house purchase some of these documents -- but the Accountant refused to accept these (and he also has signe a document to confirm this) sayng that they were not legally qualified to recieve or more importantly disperse these to us. Therfore this service was not completed in any respect and we could not legally challenge this.

One of the terms of an EEO is that we as you say are supposed to have these documents serviced on us and when recieved someone has to sign for that reciept -- which they have not got

The problem with this is that the Murcia Court have wrongly indicated that we have had these documents and that we were tme barred -- this is injustice and the frustration in the Spanish legal system

Subsequently we are fighting this but we wish that this could be brought before a very senior Judge or a person who can take such decisions -- to have common sense as to how can we challenge this without any relevant paperwork

The claimants are hiding behind Spanish Law on this but this is the worst case of potential injustice and how can anyone trust the Justice system in Spain -- we certainly can't

thanks for your time again

regards -- have agood day

Trevor

European Enforcement Order cases are always somehow difficult and tricky.

https://www.eyeonspain.com/forums/posts-long-20007p0ondak-.htm

Hi Maria

Yes certainly as seen by our experience -- it doesnt help where the claimant is acting not within the framework of the EEO

question please -- looking generally at the case do you think that this Contract itself could be challenged please  

thanks

Trevor

Hi Maria

I hope you are well since we last communicated

Just as a reminder that we were involved in a EEO dispute with Spanish Company which is going to appeal with new indisputable evidence including now confirmation from the Court's own papers -- that validates the fact that we were not provided with the documents to be able to defend ourselves

However I have been speaking to my colleagues about your firm's considerable expertise in the area of challenging Unfair Property Contracts including your success rate in these cases for your clients.

Therefore may I ask for consideration if your firm would consider firstly looking at our contract and providing clarification if we have any merit in taking this case to the court and having a potential successful outcome. We have mentioned this to our current Barrister and he agreed that by all means another very experienced expert Spanish Solicitor can take this on 

He has as previously explained to you that we have a very strong case for Unfair Contracts under Spanish Law on many issues - and we also were never provided with a Bank Guarantee -- but the property is built now?

We would also like to know what terms you operate under for payment as we have paid 29000euros approximately initially and obviously we would consider a high percentage of any monies granted going to your firm if successful. Alternatively if you require payment for any Unfair Contract case could you let me know what is is please

I have tried uploading the Contract document to this email but it seems this doesn't work -- therefore can you please provide an alternative email address so I may forward the contract for one of your experts to firstly look at if that is OK -- thanks

hope this meets with your approval

kind regards       

Trevor