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13 Aug 2009 09:25 by goodstich44 Star rating in northampton. 1636 posts Send private message

Good morning all

I feel this thread is going round in a circle somewhat. According to what Maria last posted, it's clear that a lawyer is very much required to make sure BG's, breach of contract and various other important deatails are in order before going to the notary.

If as has been said, the Spanish think we have just made up this idea of insisting on a lawyer, and are mad using one, then how do they assure everything is in order without a lawyer?. I can't believe they are all experts in Spanish law, that alone us Brits??

I don't blame anyone not wanting to use a lawyer in Spain. With a system that encourages crooks, even in positions of legal trust, through hopeless lack of regulation,  who could be sure that the risk of using a lawyer is any better than the risk of going to the notary without a BG, or a breach of contract not spotted, or any other legal term not understood by the man in the street?

Unless i've got this wrong, it would seem once again that the only way forward is for change to the system that ensures anyone working within the property industry must have integrity that can be trusted or face very harsh sentence. Until that happens then it all sounds like a lottery of ignorance that the notary is not ultimately responsible for? 





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13 Aug 2009 09:31 by ads Star rating. 2388 posts Send private message

Many thanks Maria, much appreciated.

Godstitch44 you have taken the words out of my mouth!

In the instance of breach of contract  then presumably the same outset would have occurred, i.e the purchaser who had gone to his/her notary would still have had to seek out a good lawyer to fight their case, would still  have potentially suffered major court delays, developer's delaying tactics, plus they would still not have received the reassurance that a valid BG had been provided from the outset to ensure swift recovery of monies. Nor would there have been any guarantee that monies would be returned from the Bank/Insurance Company concerned without a long legal battle.

We are therefore back to the need for a major overhaul of the legal system to eradicate such abusive practices.





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13 Aug 2009 09:34 by mariadecastro Star rating in Algeciras (Cadiz). 8577 posts Send private message

mariadecastro´s avatar

My opinion is that we  lawyers are always risponsable of the right execution of every detail of the conveyancing process according to Law  if someone hires us for those purposes: that´s our mandate:our duty.

Best,

Maria

 



This message was last edited by mariadecastro on 13/08/2009.

_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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13 Aug 2009 10:14 by goodstich44 Star rating in northampton. 1636 posts Send private message

maria

thanks for confirming what most of us thought was the safest bet (assuming you know you have a lawyer working in your interest.)

Smiley and Gillespie

you have said the Spanish don't use lawyers, and said you thought many of us would not be in our situation had we gone straight to a notary. That is clearly not the wise thing to do as maria has stated.   What do you say now to defend your position?





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13 Aug 2009 10:14 by Suzie Star rating in England. 121 posts Send private message

Smiley said:  ...'So far Europe cannot agree on what size tomatoes will be - how the hell are they going to agree on legal property procedures. If you buy in Dubai you follow the expected laws and procedures there, same in Bulgaria and everywhere else in the world. Quite why Spain would be singled out to be uniform with the UK I dont know...'

Any country that is part of the EU has to abide by EU Laws.  And the mention of Bulgaria, deemed 'the most corrupt country in Europe' is relevant; the EU withdrew funding to Bulgaria last year, mostly due to the same property et al  problems many of us are now dealing with in Spain.  So don't knock the EU.  Their threat is serious.





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13 Aug 2009 11:11 by ads Star rating. 2388 posts Send private message

Maria,

Do you not feel that there are problems within the legal system as it stands now then?

Why are there not legal practices in place to ensure that valid BG's are an enforceable pre-requisite before any signing is allowed to take place. In other words close the door to this abuse (i.e.thoses instances where some lawyers and developers might have colluded, or even where a lawyer may not have identified an illegal BG ) from the outset.

Likewise what are your thoughts on the overload of the court services and the massive delays that ensue, thus placing the client at further risk of the developer going bust in the interim and developer's tactics to extend the delay without any apparent time constraints placed upon them (or the courts to respond for that matter).Do you not see a requirement to place time constraints on these legal processes so as to stamp out the abuse?

What are your thoughts on the accountability of lawyers, developers, banks (who refuse to recognise valid BG's) etc as the legal system stands now? Do you think that the consumer is adequately protected from the abuse that appears to have been encoutered over these last few years and more importantly is continuing as we speak? What hopes do you have for future consumer protection in this regard?

Can you appreciate why many potential purchasers feel vulnerable and are now extremely wary of purchasing in Spain, even with a good lawyer, so long as these problems are not addressed?





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13 Aug 2009 11:24 by normansands Star rating in Kent. 1281 posts Send private message

Dear All,

thank you Maria, it seems that my excitement was premature, so how the devil does one safely buy off-plan in Spain, or is Smiley right - "don't touch it with a barge pole".

If one took the purchase contract to the Notary together with the brochure to be notarised would that then entitle you to receive all that was promised?

If so why would my lawyer not do that?

"My opinion is that we  lawyers are always risponsable of the right execution of every detail of the conveyancing process according to Law  if someone hires us for those purposes: that´s our mandate:our duty."

If this is the case, why are you not pursuing the lawyer as well or instead of Interlaken?

Surely I have a case against both?

goodstich's case would seem to be similar and even much more clear-cut.

________________

Smiley,

thank you for the pm, much appreciated, please forgive my "direct" approach, it comes from a life-time of being described as "abrasive".

Regards

Norman



_______________________
N. Sands



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13 Aug 2009 12:40 by Chimps Star rating. 117 posts Send private message

 

Maria posted

"My opinion is that we  lawyers are always risponsable of the right execution of every detail of the conveyancing process according to Law  if someone hires us for those purposes: that´s our mandate:our duty."

_____________________________________________________________________________________

Its not be an opinion most are looking for. It should be everyones right to expect nothing less

Sadly many solicitors have different "Opinions" or those like Goodstich44 and Norman would not have been conned.

One positive post I noticed was that is the E.U does have teeth . Lets see them bite.

Norman ? That was some expensive apartment for a 70 year old on a pension.





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13 Aug 2009 13:43 by mariadecastro Star rating in Algeciras (Cadiz). 8577 posts Send private message

mariadecastro´s avatar

Answering some questions below in bold green ( same text as your messages):

From ads:

Maria,

Do you not feel that there are problems within the legal system as it stands now then?  I do.  On the banks: there should be  liabilities on  Banks financing off-plan purchases and not producing Bank Guarantees.

Why are there not legal practices in place to ensure that valid BG's are an enforceable pre-requisite before any signing is allowed to take place. That is a lawyer´s mission. In other words close the door to this abuse (i.e.thoses instances where some lawyers and developers might have colluded, or even where a lawyer may not have identified an illegal BG ) from the outset.

Likewise what are your thoughts on the overload of the court services and the massive delays that ensue, thus placing the client at further risk of the developer going bust in the interim and developer's tactics to extend the delay without any apparent time constraints placed upon them (or the courts to respond for that matter). Arbitration should be more frequent for this type of contracts.Do you not see a requirement to place time constraints on these legal processes so as to stamp out the abuse? A matter of Justice management more than a legislative issue.

What are your thoughts on the accountability of lawyers, developers, banks (who refuse to recognise valid BG's) etc as the legal system stands now?  More regulations for financial institutions are needed. No financiation benefits without guaramnteeing firm commitments. Do you think that the consumer is adequately protected from the abuse that appears to have been encoutered over these last few years and more importantly is continuing as we speak? I think Consumer Law is getting more and more stronger and it is maybe the only way to stop these abuses. Civil society against stablished powers.  Our XXI century is a one for committed citizenship and active civil society.  What hopes do you have for future consumer protection in this regard? High hopes. Forces in Europe and Spain being very active to this regard. Consumer protection before market, financial institution, public services... 

Can you appreciate why many potential purchasers feel vulnerable and are now extremely wary of purchasing in Spain, even with a good lawyer, so long as these problems are not addressed?  Some lawyers representing foreign buyers in the past, knowing or not the danger and seriousness of the breach,  lacked independence and evasion of  conflict of interests: there were clear links between them and Real Estate agents during the Real Estate Boom. Independecny and evasion of conflict of interests are two main and hugely important principles in our Ethical Code. Deffending many clients let down by some of those lawyers  has been our exclusive work for more than three years now. It has been challenging and in my opinion, because of legal work and legal information to consumers being done and the market being a buyers´one ( if any) no, buying is now much safer than 4-5 years ago. For those who are already in the mess , Consumers and Contract Law in Spain are strong rnough to deffend their situation and place them in the place they need to be.

From Normansands:

If this is the case, why are you not pursuing the lawyer as well or instead of Interlaken? As a matter of producing a safe Liability case, we need to claim against developers/ guarantoors first.



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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13 Aug 2009 14:19 by 1962 Star rating in Iznalloz. 182 posts Send private message

Hi Smiley,

What a fantastic post, Gillespie too thankyou.  Is it still possible to sell/buy legally just using the Notary,  as Maria said (I think it was Maria ) the notary is after all a lawyer.

Kathy.

 



_______________________

Kathy




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13 Aug 2009 14:45 by mariadecastro Star rating in Algeciras (Cadiz). 8577 posts Send private message

mariadecastro´s avatar

Regarding Smiley post, and with all my respect towards Notaries and their hard training:

IT IS NOT Notaries role to protect clients´rights before opposite/ third parties in any legal business but to check on the formal legalities of the legal transaction.

They usually recommend their clients to visit a lawyer if further legal concerns regarding their specific legal situation within a certain legal business is presented to them.

Needless to say they do not step on Courts and are not  trained on  judicial procedure and Case Law ( jurisprudencia) as a good lawyer should be.

 



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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13 Aug 2009 14:48 by goodstich44 Star rating in northampton. 1636 posts Send private message

1962

 please don't take offence, but I think you've missed this mornings posts?  It's clearly stated now that a lawyer is required, despite opinion on the contrary from Gillespie and to some extent Smiley, who did at least say though that a lawyer was a good idea.

The answer is no. The Notary's powers are not far reaching enough to protect your investment against crooks. You need a good lawyer.





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13 Aug 2009 15:18 by ads Star rating. 2388 posts Send private message

Many thanks again Maria fro your responses. This is so useful.

Sorry, but I have a few more queries in response to your observations (in yellow).

Maria,

Do you not feel that there are problems within the legal system as it stands now then?  I do.  On the banks: there should be  liabilities on  Banks financing off-plan purchases and not producing Bank Guarantees.

Why are there not legal practices in place to ensure that valid BG's are an enforceable pre-requisite before any signing is allowed to take place. That is a lawyer´s mission. In other words close the door to this abuse (i.e.thoses instances where some lawyers and developers might have colluded, or even where a lawyer may not have identified an illegal BG ) from the outset. Is there no way to automate this process without having to go the legal route?

Likewise what are your thoughts on the overload of the court services and the massive delays that ensue, thus placing the client at further risk of the developer going bust in the interim and developer's tactics to extend the delay without any apparent time constraints placed upon them (or the courts to respond for that matter). Arbitration should be more frequent for this type of contracts.

Unfortunately arbitration has been used as a delaying tactic by some developers who have no intention to settle and have made false promises which at the last minute are dropped. For instance I understand that there have been cases where they offer to pay if the client renounces the legal costs and interest, only to find that the same developer appealed the court decision although it was its own proposal!! How can you trust a developer's commitments?  Surely better to demand the whole amount?


. Do you not see a requirement to place time constraints on these legal processes so as to stamp out the abuse? A matter of Justice management more than a legislative issue. Would it not be better, given the delaying tactics employed as identified above to have some realistic  time constraints in place to counter these abusive methods?

What are your thoughts on the accountability of lawyers, developers, banks (who refuse to recognise valid BG's) etc as the legal system stands now?  More regulations for financial institutions are needed. No financiation benefits without guaramnteeing firm commitments. Do you mean here delaying the payment of  Bank bonuses and the like until outstanding financial commitments are met? That would be good!! Do you think that the consumer is adequately protected from the abuse that appears to have been encoutered over these last few years and more importantly is continuing as we speak? I think Consumer Law is getting more and more stronger and it is maybe the only way to stop these abuses. Civil society against stablished powers.  Our XXI century is a one for committed citizenship and active civil society.  What hopes do you have for future consumer protection in this regard? High hopes. Forces in Europe and Spain being very active to this regard. Consumer protection before market, financial institution, public services... 
I take it that these protections are not in place yet so when do you see them coming into force?

Can you appreciate why many potential purchasers feel vulnerable and are now extremely wary of purchasing in Spain, even with a good lawyer, so long as these problems are not addressed? 

Some lawyers representing foreign buyers in the past, knowing or not the danger and seriousness of the breach,  lacked independence and evasion of  conflict of interests: there were clear links between them and Real Estate agents during the Real Estate Boom. Independecny and evasion of conflict of interests are two main and hugely important principles in our Ethical Code. Deffending many clients let down by some of those lawyers  has been our exclusive work for more than three years now. It has been challenging and in my opinion, because of legal work and legal information to consumers being done and the market being a buyers´one ( if any) no, buying is now much safer than 4-5 years ago. For those who are already in the mess , Consumers and Contract Law in Spain are strong rnough to deffend their situation and place them in the place they need to be. Even  the scenario where the developer goes bust before the monies are returned to the client who may be in the  throes of leagal action against the developer? Is the client guaranteed to receive back his/her monies under such circumstances, or is this a lost cause at that point due to the financial institutions claiming priority for return of monies over the consumer?



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13 Aug 2009 15:19 by 1962 Star rating in Iznalloz. 182 posts Send private message

Thank you for both your answers,

However there seems to be so much conflicting advice.

Thank you again Kathy.



_______________________

Kathy




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13 Aug 2009 15:43 by Gillespie Star rating in Costa Calida Area. 608 posts Send private message

Gillespie´s avatar

There seems to be some confusion here as to what is the Spanish way of conveyancing property.

I stated that the Spanish don't use lawyers when purchasing property. (There may be a few exceptions).

The reason for me highlighting the above fact came about because there have been several posts which state that Spanish lawyers have been negligent with the handling of their UK clients property purchases. Leading to many readers here calling for a change in the Spanish system of property conveyancing.

My posts were to highlight that using a lawyer is a foreign buyers system and not the Spanish buyers system. We must not confuse the two as they are quite different.

It was my intention to highlight the missunderstanding, or more accurately, the existence of the Spanish system that many here are unaware of, as highlighted by some responses here.



_______________________

Business advice and consultancy - Visit www.calidain2business.com

Calida in2 Business - Spanish Property Clearance.

www.spanishpropertyclearance.com




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13 Aug 2009 15:52 by goodstich44 Star rating in northampton. 1636 posts Send private message

1962

without meaning to insult anyone making contributions. I feel those who have no real intention of talking the market up are most likely to be giving the best advice over this matter. I don't always like Maria's replies, but  I understand she works within the constraints of a system I believe is very wrong,  but her job is this area, so I tend to be wary of advice that conflicts with hers as some posts have yesterday and today.





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13 Aug 2009 16:10 by 1962 Star rating in Iznalloz. 182 posts Send private message

Hi goodstitch I agree,

Sorry Maria I did not in any way include you however it may have seemed, I should have worded it differently.

Regards Kathy



_______________________

Kathy




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13 Aug 2009 16:11 by goodstich44 Star rating in northampton. 1636 posts Send private message

Gillespie

from what we have learned from Maria this morning, not using a lawyer sounds a very foolish way of purchasing property, and one i'm suprised you would say is 'the norm' for Spanish people.  If the notary's powers don't cover cruicial areas, why on earth would anyone say this an idea invented by the English?, when it's clearly common sense for  all. and exactly what those of us cheated did. I think this proves yet again, the failure is not in our decision to use coomon sense, but n the systems failure to regulate against those who betray decent people doing their best to protect their investment.





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13 Aug 2009 16:53 by Gillespie Star rating in Costa Calida Area. 608 posts Send private message

Gillespie´s avatar

I suppose the best way to answer your question goodstich is by an example.

If you were to go to a crooked builder and suggest instead of signing the off-plan purchase contract in his office, you would prefer him to do so in front of a Notary, you would find yourself on the day of the Notary appointment minus one builder.

If you go to an honest builder and ask the same question, he would probably take you to the appointment in his own car.



_______________________

Business advice and consultancy - Visit www.calidain2business.com

Calida in2 Business - Spanish Property Clearance.

www.spanishpropertyclearance.com




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13 Aug 2009 17:01 by Smiley Star rating in San Pedro de Alcanta.... 2478 posts Send private message

Smiley´s avatar

As I have already stated the Notary is a government lawyer who confirms what is in a contract. I believe that one should have a lawyer if one does not understand what is in the contract (i.e. a full and proper understanding of Spanish). In fact Notaries now will check that you do have a full and proper understanding unless you have an interpreter there (and they are required to provide their ID). Thus it is most practical to have a lawyer if one doesnt have ready access to someone they trust to translate for them correctly. Goodstitch - you are better protected if you sign in front of the Notary BUT it depends on the quality of the advice and service one is receiving from ones lawyer or ones representative. The Spanish dont use them as they are confident of what they are buying and know what should and shouldnt be there.

While a very few do, largely speaking the Spanish do not buy off plan. They do not trust them. They are much like me in that if it is three dimensional and the right price they are interested. They also understand the Spanish system and mostly they cannot understand the fascination with off plan - it is simply too risky for them (and me). They are mistrusting of banks and so dont trust BGs. That is not me or them being clever it is just the way they are.

Again we are back to quality of advice. If the lawyer does not ensure the correct documents are all in place such as BG etc then he will not affirm to the Notary that the correct documents are in place. The Notary can only confirm the information/documents he is given and once confirmed the buyer does have more protection. Again it brings me back to agents - if agents had not marketed property that was technically illegal and had only marketed proprties that had the BGs and all  correct licences then so many people would not be in this mess. This information was FREELY available AND there were agents that didnt market anything over which there was doubt. I am quite sure that ALL the agents knew that it was illegal to take deposits from clients before a developer had the licence to clear the ground - yet I lost count of the numbers of Aifos developments (not to mention so so many others) where not a JCB in sight but 80% sold signs in place and hordes of agents swarming round the sight like bees at a honey pot - I frequently use the term feeding frenzy and that is what it was.

Now on to security of contract. The point that Ken (Gillespie) was trying to make I believe, was that as long as one (the buyer) knows what should be in the purchase contract (in reference to deposits, BGs etc) and the purchase contract is signed before the Notary (not the exchange of Title) then one has more protection under the Spanish legal system than if one merely signs the purchase contract in a lawyers office or a developers sales office as it has then become a Notarized document and a matter of public record. The Spanish aint bothered about lawyers as they are buying mostly resales and not off plan.

With every respect to Maria (and she knows that I do not include her and that I do hold her in the highest respect) there have simply been too many lawyers operating throughout Spain (even within big well known practices) that have not put their client interests first. They have considered (and in many cases still do consider) that the developer/agent is their client - the buyer is merely picking up the bill. When a developer is pushing a client to complete and I am saying they should wait for the LFO, frequently the client responds with the fact that the lawyer is also pressing for completion - this is becoming less frequent but still happening nonetheless. Less frequent now but when properties have had delayed completion and thus developer in breach largely speaking buyers have never been told they have an option not to proceed with refund if deposit. When buyers have not been able to secure mortgage finance for any reason (property sold with guaranteed mortgage) their lawyers have not advised they have a get out clause. I have even recently had a situation where a laywer was encouraging a client to complete on a purchase of a resale property with outstanding embargoes and no confirmation as to how or when they would be settled. Far too many of them have too little training/experience or they appoint administrators to do the work while they go for expensive lunches with developers to drum up new business. I am not a lawyer nor do I profess to be and I am a firm believer in the expression a little knowledge is a dangerous thing BUT if a buyers lawyer is not advising them on this then who the hell should be? I sure as hell dont think it should be a mortgage broker who has picked up a bit of legal nous along the way but at least I can advise they go and speak to their lawyer and this is the question to ask him/her - problem is that usually it has been too late to take affirmative action.

Maria I agree with you that real estate law is changing, consumer law is changing but these are not changes that are happening overnight and they will take time. They will also (in my opinion) not be applied retrospectively. The damage has already been done to the off plan market and it is a case as so often in Spain, that the action has been too slow in happening. The injured parties have not had satisfaction and I suspect it will prove difficult for them to get that satisfaction (European intervention or not).

I doubt we will ever see the return of off plan purchase (in its recent guise) here on the CDS so for me every cloud has a silver lining - I cant speak for other places. Development will still continue but the day of the silver and black BMW I hope is behind us.



_______________________

Smiley - patrick@marbellamortgages.com  www.marbellamortgages.com   www.comparetravelcash.co.uk




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