a question of law

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This topic contains 7 replies, has 5 voices, and was last updated by Profile photo of Anonymous Anonymous 10 years, 1 month ago.

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  • #52377
    Profile photo of Anonymous
    Anonymous
    Participant

    A question for the lawyers if I may.

    I have a contract to buy a property in which the developer has 18 months in which to complete with six months leeway for force majuere. It is impossible that they could complete on time given that they do not yet have a valid licence to build.

    Some lawyers are saying we must wait the full two years before they are in breach of contract because the delay was caused by the Junta de Andalucia. Others are saying 18 months because the developer sold the properties without havin a full and valid building licence and, therefore, brought the situation upon themselves

    In all the time developers have been selling off plan in Spain this must have been tested in court before now. Does anyone, Mark, Maria, Cesar in particular, have any knowledge of precedent in this matter?

    I would be relieved where I, and all the other “owners”, stand before taking action

    Regards

    Geoff

  • #66919
    Profile photo of Anonymous
    Anonymous
    Participant

    Can I just second what Geoff has said, as I am also buying A property in the same place the build has been stopped now for A year and we are a lot of very stressed owners any help and advise would be greatly appreciated.

    Maureen

  • #66921
    Profile photo of mariadecastro
    mariadecastro
    Participant

    You can cancel the contract. There is no object ( essential element of provission 1261 of the Spanish Civil Code). Without building licence that contract shouln´t have been signed and you can invoke it as null and void.

    Even though, to use the, in my proffession, the very essential virtue of prudence, I would have to take a look on your agrreements before giving a final appraisal.

    Best regards,

  • #66932
    Profile photo of Anonymous
    Anonymous
    Participant

    many thanks to Maria for the prompt reply.

    I don’t know if it makes a difference but in my contract it says that that the development is in the planning stage. and approved by the council. It doesn’t actually mention any licence.

    paraje de Jordana y Portilla, finca denominada El Romano, hallándose ésta parcelada ya en proyecto (redactado por el Ingeniero de Caminos, Canales y Puertos D. Juan José Parrilla Canovas y aprobado por el Ayuntamiento de Cuevas de Almanzora) y sobre una de cuyas parcelas será construida la vivienda

    I have three questions I would like to ask.

    Is the contact in this instance, still without licence, null and void ?
    If not, can I claim on my BG at 18 months or two years?
    Is there a repostory of case law like in the UK where one might find a precident?

    there, I’ve got it off my chest in one go.

    Thanks in anticipation

    Geoff

  • #66951
    Profile photo of Anonymous
    Anonymous
    Participant

    Is the contact in this instance, still without licence, null and void ?

    Not sure if void as I haven’t read it and Maria is quite right, we should be cautious, but I think they could be declared in breach of contract if you can fully prove it is now impossible to fulfill the deadline

    If not, can I claim on my BG at 18 months or two years?

    Depends on what exactly says your BG, when does it says it will become enforceable? It should state a deadline that could not be the same as the one in your contract with the promoter

    Is there a repostory of case law like in the UK where one might find a precident?

    Yes, we call that Jurisprudencia here. There are many compilations but a Lawyer should study your particular case to see if it fits with their doctrine it’s not too easy to consult them and publishing houses & internet sites providing this service will charge you quite a lot.

    Anyway, if you can read Spanish and are ready to fight with the tricky indexes and thesaurus you may try in public librarys (big ones usually have it) or even in a Lawyer’s Bar House or Colegio de Abogados, I don’t know in other places but here in Asturias we don’t usually object non lawyers to acces our library (it is actually a restricted service for us but we don’t really control it and allow general public -mainly students- to consult)

    Cesar

  • #66954
    Profile photo of Anonymous
    Anonymous
    Participant

    Cesar

    Thank you very much for your opinions, it has been a great help to know that I may have a legel remedy to this muddle.

    Regards

  • #67008
    Profile photo of Anonymous
    Anonymous
    Participant

    Any joy Geoff?

  • #67015
    Profile photo of Anonymous
    Anonymous
    Participant

    Hi AAA

    Well apart from all the cavets, it does seem likely that I could claim back my deposits because the contract would be unforfillable at the 18 month deadline.

    I would have to get a translation of my guarantee to identify exactly what it says although I would have thought a guarantee is a guarantee and would not have a “cannot use before date”

    As far as the case law is concerened that would be for my lawyer to examine and my understanding of Spanish is nowhere good enough. I guess I was hoping that the lawyers would have handled enough similar cases recently to be able to say ” This is how it is done”.

    My 18 monthe deadline is March 07 and I was trying to be forearmed but the decision cannot be made until then. Unless the promoters go belly up of course which seems unlikely.

    Regards

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