18 Dec 2008 12:29 PM:

Hi everyone. Joined this forum a few days ago and it was most reassuring to see that there is a group of us brainstorming on this and pooling our various 'bits' of information. Thank you for your ideas so far and for being so honest about your fears and hopes. It's really helpful.

There are several facts that we are hoping will become clear in the next few weeks, partly from tracking back our own paper trail and hopefully from further updates from IAP Global, IAPI Spain etc. With reference to the email appended from Elena Agudo - Plus Advisors, on 15th Dec. (I've underlined the salient points.) Working through these has been useful to us to help pin down what needs to be clarified, hope it helps others too. These are the outstanding grey areas we have:

1. Where our deposits are held (one posting mentioned they are held in Escrow, while another suggested the developer has these)

2. Whether these deposits are indeed secure given the 'missing' bank guarantees (regardless of whose at fault if they were not completed legally), which incidentally may not be an issue for a lucky few. Elena's email below says Plus Advisors requested issuing of bank guarantees from the developer on several occasions, and 'we received only a few'. She also states that "Initially, the legal strategy to be presented in this kind of sues, does not vary too much for those who have bank guarantee or not."

3. Can we get our money back based on the developer's breach of contract v.v. long delays in development schedule/completion, and is there any other stand we can take. It seems from Plus Advisers' Elena's email that a 6month extension was already agreed, this puts the new contracted completion date at March 2009. So certainly no legal action can commence until after that date is reached.

4. With legal action, might we also be eligible for refund of the interest paid over the period as well as all the legal costs outlined.

5. Is it indeed possible to transfer the deposit to another golf resort in Murcia (because we chose this specifically as an up-and-coming area and best location to invest, not keen on any other places or 'armpit' areas that Andy mentioned). Plus Advisers Elena indicates in her email, it may be possible "transferring your already paid deposit into another property, even of a different builder, which it would still allow you to continue with the legal process of claiming the amounts paid." (This might indicate that the developer does not in fact hold our deposits, but presumably they would have to have agreement of the developer to do so, perhaps avoiding legal action would be a sweet enough deal?)

We are planning to get all our paperwork and notes together so we can track what we have an have not signed. We'll certainly post an update on our 'predicament' and maybe this will help others look for the relevant documentation and/or information.

J&S

 

On 15th Dec:

Elena Agudo - Plus Advisors wrote:

We are writing this communication as we feel in the obligation of informing you about the difficult situation of your purchase in Fortuna. Nowadays, we consider that this project has few possibilities of being completed successfully. During the past months, we have been making our own researches and find out some details which were not initially our field such as: 1.-  the always decreasing number of workers on the site with no formal justification, 2.- the difficult current financial situation of the builder, 3.- Visits to the Town Hall to check the progress of the urban plan and some other points that do not confirm the non viability of the project but are enough evidences to send you this and advise you about how to proceed.

 

Once the completion date and the 6 months extension agreed on the private contract have expired, we have no other option but to act against the builder terminating the contract due to the unfulfilment of the same not only for the non-delivery of the property but also for not having issued the relevant bank guarantee which Plus Advisors has requested in several occasions (we have only received very few).

 

Initially, the legal strategy to be presented in this kind of sues, does not vary too much for those who have bank guarantee or not. We have studied deeply your case and we are in the position of bringing a lawsuit against the builder with a good expectation of success. In this case, we will claim the resolution of the contract of purchase and sale, the refund of the deposits, the corresponding legal interests accrued, compensation for damages and administrative and legal expenses plus the court fees. For this purpose, we have arranged a cooperation agreement with the company PRICE-WATERHOUSE-COOPERS-LANDWELL to deal jointly in the process being the lawyers Ms. Susana León Pin with bar of association number 1.361 appointed by Plus Advisors and Mr. José Abad Revenga with bar of association number 4.997 appointed by PRICE-WATERHOUSE-COOPERS-LANDWELL.

 

We have special price of 5.000 € + VAT which cover our legal fees, fees for the “procurador” (special figure in Spanish law system who acts as kind of mediator for the bureaucracy work in court), the notarial requests, “burofaxes”, etc., The method of payment for the said amount is a 50 % at an early stage and the rest 50% on verdict.

 

The situation could be more complicated in the event the builder went into administration which we have no evidence so far it is going to happen soon but anyway, any decision you take, we recommend that is made as soon as possible.

 

The other option we have, it would be transferring your already paid deposit into another property, even of a different builder, which it would still allow you to continue with the legal process of claiming the amounts paid. We do not know the details of this commercial solution and it shall be dealt through your agents Instant Access. We will be available for any legal question you may have arising from this agreement in order to make sure this is done correctly and with enough guarantees to complete successfully. A quick commercial solution for properties ready to move-in, would minimize the pressure and uncertainty which we understand you may feel about your investment.

 

In the vent that you did not accept this commercial switch, the next step would be to bring the lawsuit against the builder for breach of contract. The legal process to follow has three parts: 1. Presentation of the request to the relevant Court. 2. Preliminary Hearing. 3. Principal oral proceedings. We estimate this could take between 1 and 2 years depending on the court designated and the evidences/declarations that the contrary party could present. During this time, your presence could be required either because we consider it is important for the case or because the contrary party requests it so.   

 

Looking forward to hearing from you about your decision with the recommendation that the commercial offer is heard just in case it may be of your interest. If not, please let us know about starting the legal process and we will send you the instructions to follow for that purpose.

 

Kind regards,

Community thread: Anyone else bought an of plan property at FortunaHill Golf and waiting on completion ?

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