Bank Guarantee expiry date – Supreme Court resolution

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This topic contains 82 replies, has 15 voices, and was last updated by Profile photo of Anonymous Anonymous 8 years, 10 months ago.

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  • #53624
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    Anonymous
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    I have always been of the opinion that whereas it is possible for a local judge to be ‘a little biased’ in their resolutions in some cases, and where perhaps the outcome rather favoured an ‘outside agenda’ (have I been subtle enough…?), I have also been of the opinion that once a case goes to the Supreme Court, the letter of the law would be upheld. That the Supreme Court cannot/would not ignore the law.

    Many of us with Bank Guarantees know that some banks (on instruction from the developer? I don’t know) actually include an expiry date. Our BG certainly had one. This is technically known as an ‘illegal clause’ because the spirit behind the BG law is that a purchaser’s payment should be protected up until the property is handed over at the notary’s office with all licences in place. Payments are not supposed to be protected only until a date the bank/developer picks out of the sky.

    As a consequence many people due to delays in their properties being finished (or indeed delays due to revoked licences or the property not fullfilling its original spec) have ended up with an ‘out-of-date’ Bank Guarantee and it was felt that this rendered their BG totally useless. For many it has been virtually impossible to get a BG renewed once expired on the lamest of excuses from lawyers and/or developers. (Unless of course you have Drakan as your lawyer. 😉 )

    Well, today I have heard that a precedent has been set by the Supreme Court. A bank wanted to refuse payment on a BG as the expiry-date had passed – and the Supreme Court in their wisdom, upheld the law that a Bank Guarantee – regardless of the expiry date – must be taken as valid until the property is handed over.

    For once, this is a great piece of news where the Supreme Court has disregaded the ‘clever game’ of banks and developers. Expiry-dates on BG’s will no longer be acknowledged, and the letter/spirit of the law has been upheld. So in my opinion, to all those sitting on an out-of-date Bank Guarantee, don’t feel you are no longer covered. A very nice precedent has now been set. 😀

  • #78342
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    Anonymous
    Participant

    How good to see common sense prevailing for a change.

  • #78344
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    Anonymous
    Participant

    charlie

    that’s good news indeed. As you might remember from my rantings over the last few years, despite our first two lawyers assuring us everything was in place, we never had a BG, because the the developer never provided one!!! What the court case this May will make of this, along with the developer selling the apartment in our contract to someone else, then saying we could have a different one less than half the size with no discount, built nearly 4 years late, and then in desperation, saying they had not recieved any deposit from the start!,(despite all our bank transactions showing our money out of our account going in to their account) will be interesting to say the least.

  • #78346
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    katy
    Spectator

    Goodstich, I wish you all the best 🙂 Your case seems to have been going on forever, when did you first start the buying process?

  • #78347
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    Anonymous
    Participant

    That is really good news Charlie. 😀 What a pity it has to go to a Higher Court to get the law translated as it was intended.

  • #78348
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    Anonymous
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    Hi Goodstich – am well aware of your previous ‘rantings’ but goodness me, don’t you have the right to rant with your situation! Yours is one of the most disgraceful scenarios I’ve read on the forum. As you know developers are obliged by law to issue all purchasers of off-plans a Bank Guarantee free of charge , it being a criminal offence not to do so. But as we know, many developers ignore this law and seem to get away with it with no repercussions. Your developer is King at this. It would take just one purchaser to successfully go to court and a developer ending up in jail as a result over non-issue of a BG to concentrate some minds.

    Hillybilly, you are right and it is only justice afterall. These illegal clauses should never have been allowed/acknowledged and just maybe this resolution will start the ball rolling. I believe a standard BG document worded by the Government that follows every letter of the law should be used by all banks, then there would be no room to ‘fiddle’ with the terms as they’re doing now.

    The other favourite coconut of developers is to have the (illegal) clause written into a purchase contract that completion takes place on the issue of the architect’s End of Works certificate. This also goes against the law. Am sure if the Supreme Court dealt with this clause in the same way as the BG expiry date, there would also be a lot of people who could use the precedent to refuse to complete until all legal docs. are in place whether they have signed the contract with such a clause or not. As you know, the Architect’s certificate means nothing with regards to a property’s legal status in the eyes of the Town Hall.

    At least this is an important step in the right direction for people who thought they had a worthless expired Bank Guarantee.

  • #78349
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    Anonymous
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    Hi Claire (where have you been? 😀 )

    Just maybe more and more people will take unjust local court decisions to the Supreme Court to get their justice. A long, worrying, expensive route to take but do feel encouraged that this way justice will be eventually served. We both know of several doing just this and wish them well.

  • #78352
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    Anonymous
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    Very happy for you. I am not sure if the Bank/Developer has a legal right to appeal against the decision.

    All courts should look at the principal of good faith and what was intended by the contract. No party to a contract will enter a totally one sided contract.

  • #78354
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    Anonymous
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    @shakeel wrote:

    I am not sure if the Bank/Developer has a legal right to appeal against the decision.

    As far as I know Shakeel, a resolution by the Supreme Court cannot be appealed/argued with which is why, when used as a precedent, can be used to win future cases.
    But am not a lawyer 😉 – will be interested to hear Drakan’s and Maria’s take on this new development.

  • #78355
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    Anonymous
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    We have a Constitutional Court whose powers are set forth in section 161 of our Constitution. Among these powers this Court hears individual appeals for constitutional protection that may be filed by any national or foreign individual or legal entity, in defense of the rights recognized in sections 14-30 of the Spanish Constitution ( Fundamental Rights and Public Freedoms)

  • #78357
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    Anonymous
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    katy

    well we put our deposit down in June 2002. It all started going wrong about two years ago when i told our lawyer at the time that i thought his advice to complete on a property with several huge breaches of contract, and over two years late build time, was crazy. He was offended and still insisted we complete!. We then fell out, and soon after we found a decent lawyer, we were told about no BG and the really bad news that our UK agent, the UK lawyer we were put in touch with, the Spanish lawyer they put us in touch with, and the developer were all in cahoots with taking us for a ride!

    I said at the time to the lawyer we have now, ‘are you expecting me to believe i was being ripped-off by a UK agent, a UK lawyer, a Spanish lawyer and a Spanish developer’……..he said ‘well yes’!

    So, what will happen in May with our court case, who knows? How much clearer can our case be? Our lawyer says our fate will depend on the judge on the day?

  • #78362
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    Anonymous
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    “We have a Constitutional Court whose powers are set forth in section 161 of our Constitution. Among these powers this Court hears individual appeals for constitutional protection that may be filed by any national or foreign individual or legal entity, in defense of the rights recognized in sections 14-30 of the Spanish Constitution ( Fundamental Rights and Public Freedoms”

    Are you saying that a High Court order can be appealed ???? or are you saying that these appeals can only be heard on constitutional matters.

    The cynical in me tells me that that the Country’s constitution does set out a lot of which there is scant regard for it by the people, bodies etc. As i have said on many occasions on the forum that all these things gets nicely bind-ed in some leather casings and archived.

  • #78368
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    Anonymous
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    Any High Court Decision could be appealed if you consider that the judge in his judgment has violated Fundamental Rights and Public Freedoms recognized in the above-mentioned sections. First, you have to use up all the previous instance courts and the Constitutional Court never take cognizance of the merits of the case only rehear about the unfairness, i.e. an accused person has been deprived of his her constitutional, legal or human rights, essentially is “the right to a fair trial”.

  • #78369
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    Spanishlawyer

    I’m sorry but I don’t understand your answer.
    Surely this resolution has nothing to do with fair trials, public freedoms or human rights and certainly nothing to do with ‘unfairness’.
    It is purely a resolution where the Supreme Court sets the interpretation of the law with regards to the illegal inclusion of an expiry date in a Bank Guarantee.

    As far as I can see, the only people who have been ‘deprived of his/her legal or human rights’ are those holding Bank Guarantees with an illegal clause.
    *Apologies to Spanishlawyer here as I was originally writing Higher Court instead of Supreme Court and caused confusion as a consequence! 😳

  • #78371
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    Charlie, I second your thoughts. So in the case referred to it seams that it cannot be appealed as the judgement was on a non performance of a commercial contract. The rights of the parties had not be deprived/denied as they have had their day in the courts or this is too simple legal analogy.

    Are these rights extended to limited entities, e.g SA companies ?

  • #78372
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    Anonymous
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    Charlie wrote “the only people who have been deprived of his/her legal or human rights’ are those holding Bank Guarantees with an illegal clause”
    I am totally agree with you in this clear case, I just tried to answer shakeel about this procedure because he asked to me
    “Are you saying that a High Court order can be appealed ???? or are you saying that these appeals can only be heard on constitutional matters”
    Obviously it is evident in this case what was the core of the matter and I don´t think that judge created defencelessness or lack of proper defence during the procedure but, you know, the Spanish Justice is sometimes complicated and even unjust.

    Felix

  • #78377
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    Anonymous
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    Hi

    If it went against the banks perhaps we may need to brace for this injustice to follow. 😈
    I have a Bank that said I had a good case based on a bank guarantee that I paid for MYSELF only to be now told that the developers have instructed said bank to not pay out. 😕
    Now if someone can tell me the use of these so called legals including bank guarantees that were there to protect us then I would like to know.
    Now I have to take both the developer and the bank to court and have been told I have a strong case. 😯
    I must add a strong case thats been going on for many years without even an inkling of when the case will be heard,(2009 min)
    Like wise this strong case I am supposed to have will no doupt end up with the same unjust judgements we see every day from a very corrupt legal system 😈

    Frank 8)

  • #78385
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    Anonymous
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    ” developers have instructed said bank to not pay out.”

    My understanding of the Guarantee is that the Bank is the Guarantor and you as the buyer is the beneficiary of the guarantee in the event that it is called up to perform. So I do not see why the bank will not pay up unless the Bank is in the developers pocket or a part of the Opus clan.

  • #78387
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    Shakeel.
    Yep thats what we are having to ask the courts.
    Perhaps the developer being one very wealthy family may just have something to do with your comment 😈

    Frank 8)

  • #78388
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    Anonymous
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    Hi Shakeel,
    We contracted to buy an apartment on an off plan development but it was not built, as the building licence was revoked. Our Lawyer actioned our BG , but the developers told the Bank not to pay us! We then had to go to Court. We won our case but the Bank appealed and so we had to have another Court case before we eventually got our money back. A ridiculous scenario. but it is happening all of the time.

  • #78389
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    Anonymous
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    Claire:
    This what I meant by the Banks/developers appealing. In your circumstances. the Bank should not have issued the Guarantee as there was a higher risk of the Guarantee being called, if the Developer did not perform.

    A bank not paying out on a guarantee or indeed any of its obligation seriously affects the standing of the bank in the financial market.

  • #78394
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    Anonymous
    Participant

    With our Bank Guarantee, the developer/bank played the ‘opposite’ game with the expiry date.

    By the time they issued the BG the developer already knew that the building licence had been revoked and that there would never be any building.
    However they decided to keep this fact hidden from us purchasers. Issuing us a BG at this stage was nothing other than a blatant act to keep us in the dark in order to continue holding all our deposits, and they ‘cleverly’ issued a BG with an expiry-date for two years later. The bank must have known about the revoked BL so are as guilty as the developer in this act to perpetuate concealing the no-build.

    After we finally discovered that the building licence had been revoked, the bank’s argument for not paying up on the BG was we have to wait for the expiry date…..which at the time amounted to another year’s wait.
    For sure the bank and the developer were working together in order to maximise cashflow to help another part of the development that was being built.

    In court, luckily the judge said &*&^~%$ to the bank’s argument, and ordered them to pay up.
    This is why am very pleased with this news from the Supreme Court – hopefully it will prevent this type of practice in the future.

  • #78418
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    This thread has made me think of R***s who has posted on here. They won their case which went to a higher court in Madrid, had a Bank Guarantee & no LFO, but then lost their case & have to Appeal again.

    I do worry about how strong this new ‘precedent’ is & whether it will put a stop to these injustices we keep hearing about. Hope so though.

    On the same development as the case above (still no LFO), the developer is apparently offering a 20% discount if they complete on these ‘illegal’ properties before the end of February 2008 😯

  • #78436
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    @Suzanne wrote:

    This thread has made me think of R***s who has posted on here. They won their case which went to a higher court in Madrid, had a Bank Guarantee & no LFO, but then lost their case & have to Appeal again.

    Hi Suzanne – if you are referring to Roots, they haven’t been to the Higher Court yet. My apologies Suzanne, yes they have been, you are right. I didn’t realise in Spain the appeal court is referred to as a Higher Court. They won their case against the bank, claiming on the Bank Guarantee. The bank then appealed and at the appeal hearing the judge found for the bank that time.
    So now they are taking their case to the Supreme Court where hopefully they will get justice…..and their money back.

    Correction: I should have written they are taking their case to the Supreme Court where hopefully they will get justice…..

  • #78437
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    @Suzanne wrote:

    On the same development as the case above (still no LFO), the developer is apparently offering a 20% discount if they complete on these ‘illegal’ properties before the end of February 2008 😯

    They’ve made this offer several times over the years. I wonder if they go back to the original price each time after that date, or whether every year it goes down another 20%. 😆

  • #78438
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    Anonymous
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    Yes, I was thinking of Roots, whose last case was heard in Madrid I believe:
    http://www.spanishpropertyinsight.com/forums/viewtopic.php?t=2623&highlight=

    I suppose my point is that ‘a higher court’ isn’t always a specific one on the ladder.

  • #78444
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    Anonymous
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    Hi
    Witnessed the same off plan property being sold by a U.K company O.? .P. 3 times.
    When the clients arrived back home they had a call saying that they had good news as they had found an apartment of a higher value in a better position and they could have it for the same price as someone had just cancelled,
    Needless to say they re-sighed for the pits,no one else wanted.
    The bank guarantees which are near usless,planning permission paperwork to show ownership prove to be worthless its going to be a real tough ride for many.
    Suzanne The development where we share an interest at 20% discount would still be 50% short.
    Even then I wouldnt buy as I have pictures of XmyX apartment getting built and its fit for one thing and thats demolition.

    Frank

  • #78450
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    Anonymous
    Participant

    Apologies to everyone (and Suzanne 😉 ). This thread should be about a resolution made in the Supreme Court.

    So: first hearing – a first instance court
    appeal hearing – a Higher Court
    taking it to the top(!) – Supreme Court

    It is the Supreme Court that can make resolutions on interpretations of the law that sets precedents. Thankfully, the resolution concerning the expiry date on Bank Guarantees was made in the Supreme Court.

    Have corrected my previous posts, and the thread title. And hope that all is correct now.
    Apologies for any confusion, I messed up royally with the court names. 😳

  • #78468
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    Anonymous
    Participant

    Courts in Spain are divided in five different categories by subject matter:
    a) Civil, for civil or commercial issues
    b) Criminal, for violations of the criminal code
    c) Social, for social security and employment contracts issues
    d) Administrative for claims based on acts performed by public administration
    e) Military.

    Hierarchical structure (in civil and commercial matters):

    1º. Courts of Peace (Juzgados de Paz) served by lay judges. They hear about small claims (up to €90)
    2º. First instance Court or County Courts (Juzgados de primera instancia)
    3º. Provincial Courts (Audiencias provinciales)
    4º. Higher Court of Justice (Tribunal Superior de Justicia). Each Spanish Region has one of these courts
    5º. Supreme Court (Tribunal Supremo)

    Constitutional Court (Tribunal Constitucional) is not a part of the court system. It is a political independent institution with its own rules and rights. It is the supreme interpreter of the Spanish Constitution.
    Finally, as Spain is part of the European Convention of Human Rights, defendants can held his case before the European Human Rights Court of Strasbourg.

    I’m taking the opportunity to recommend the use of the criminal jurisdiction against the developers rather than the civil way, it is more effective. Selling or building houses in Spain without building permission or banks guarantees could be considered an offence. Fraud, swindle and misappropriation, I think everybody knows the meaning of this words. Our Criminal Code also states other offences like misleading advertising.

  • #78471
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    spanishlawyer – many thanks for your explaination re. the court system. Can you explain the difference between the First instance court and the Provincial court – by what criteria of case would mean one court would be used as against the other?

    I believe your opinion on looking at the criminal route rather than the civil one when seeking justice from a developer is an interesting one.
    I posted the question here a couple of years ago how I have never understood if for example I ordered and put a deposit down on a new car, it was never delivered (or was not according to the spec. agreed) and the garage then refused to return my money, I could get the police involved. Why should buying a property be any different? Surely developers who also fail to ‘supply the product’ (but with a lot more money involved!) should not be beyond this same action.

    May I ask if you have ever taken a developer to court (successfully) via the ‘criminal’ route, and obtained monies back for a purchaser involved in an illegal build?

  • #78474
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    charlie/spanishlawyer

    interesting this. I would have thought my case is very much in this field. No BG, no LFO at completion date, apartment in contact sold, despite putting down £35,000. No discount offered on replacement (less than half size) apartment. And still refusal to return our deposit despite the above and build time nearly 4 years late, and then to top it all, denial of recieving deposit. How criminal is that lot?

  • #78478
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    Anonymous
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    Charlie wrote: “May I ask if you have ever taken a developer to court (successfully) via the ‘criminal’ route, and obtained monies back for a purchaser involved in an illegal build ?”

    Of course, not just me, many lawyers in Spain are dealing now and before whit this type of cases in both sides defending and prosecuting developers. We just need to prove any fraud or deceit or deliberate representation. Anyway, how do you feel when you receive a letter from a criminal court (shit-scared). When a lawyer brings criminal proceedings against a developer also apply for a freezing order against his assets to prevent the dissipation

    Charlie wrote: “Can you explain the difference between the First instance court and the Provincial court – by what criteria of case would mean one court would be used as against the other?”

    The First Instance Court (Juzgados de Primera Instancia) are like your County Courts (breach of contracts, damages, ownerships titles, contentious probates), they are the first instance. Provincial Courts (Audiencias Provinciales) hear appeals brought against decisions of a First Instance Court Juzgados de Primera Instancia among other issues.

    Felix

  • #78480
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    Anonymous
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    @spanishlawyer wrote:

    When a lawyer brings criminal proceedings against a developer also apply for a freezing order against his assets to prevent the dissipation

    Felix

    I know of several cases where a developer is being sued in the civil courts but is also awaiting a criminal case hearing. In the first instance the Judge says that the criminal case cannot be taken into account in the civil hearing (although they are of course connected). I am wondering if this ‘freezing order’ will also offer future protection for those who are suing the same developer via the civil courts?

    Sorry, but for obvious reasons can’t be too specific here at the moment.

  • #78481
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    @spanishlawyer wrote:

    I’m taking the opportunity to recommend the use of the criminal jurisdiction against the developers rather than the civil way, it is more effective. Selling or building houses in Spain without building permission or banks guarantees could be considered an offence. Fraud, swindle and misappropriation, I think everybody knows the meaning of this words. Our Criminal Code also states other offences like misleading advertising.

    We instructed an abogado to take our case to the civil court. Against our instructions they passed our case to a different abogado who took it via the criminal route. It was rejected three times, although our case was described as ‘watertight’. We did not have a Habitation Certificate then (2005) and we still do not have one now. It cost us a lot of money, time and anguish. We certainly wouldn’t recommend the criminal court route.

  • #78482
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    Tilly

    Each case, each lawyer and each judge is different, as you know we don´t have here “common law”. I use to defend developers and sometimes I win sometimes I lose. Judges are human beings and they construe the law in a very different ways.

  • #78484
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    Anonymous
    Participant

    So it’s a coin toss – guess we already knew that.

  • #78486
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    Anonymous
    Participant

    Or how full is the brown paper bag. 😈

    Frank 8)

  • #78487
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    spanishlawyer

    your last comment makes worrying reading. Surely there has to be a common law where there is quite obviously a right or wrong as judged by anyone you could trust who knows the difference?

  • #78488
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    Anonymous
    Participant

    sorry goodstich44 perhaps I was exaggerating. But remember “Spain is different” even when we are speaking about justice

  • #78489
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    Anonymous
    Participant

    “Spain is different” I expect a lawyer to have a more profound reply to such a serious issues question and issues which not only destroyed lives but has placed Spain in the category of a Banana Republic.

    On the basis that “Spain is different” A judge can take an absurd, unjust decision ???

    I can imagine a full Court room. A judge makes a silly decision and in his summing up has a grin and says remember Spain is different.

    How pathetic is this from a lawyer. No wonders that the lawyers are not held in high esteem in Spain,

  • #78490
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    Anonymous
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    shakeel calm down. I am not responsible about the justice in Spain

  • #78491
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    Anonymous
    Participant

    Hi

    While I’m no lawyer I always understood the law was open to interpretation, hence the importance of Precedent. Where as rules are not open to interpretation, “rules is rules”

    So in my view spanishlawyer has every right to say “Spain is different” I would go as far as to say the UK is also different.

    Regards

    Paul

  • #78492
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    Probably as well to take into account that Spain has a fledgeling democratic legal system when compared to the UK.

    No offence meant to Felix, as I´m sure you and your collegues must have seen many strides forward since the 1970´s.

    Things are changing quickly in your profession Felix and mostly for the best.

  • #78494
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    Anonymous
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    I am sorry but as a lawyer you are quasi responsible for the legal profession and its imagine. Every professional upholds his/her profession.

    This is a typical Spanish attitude. No one taking responsibility. The estate agent does not take the responsibility of the developer, the banks don’t take the responsibility of the guarantee, The Council does not take the responsibility of the first certificate. The “colegio de abagado” does not take responsibility of the lawyers, The Government does not take responsibility of the civil service.

    I am completely tranquilo, the truth has to be said even if it is not liked. Life/society does not evolve/improve until a society looks at its issues in a mature enough manner, accepts its shortcomings and put into action changes and not by simply passing laws and archive them.

  • #78495
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    shakeel I am agree with you but not 100% because the truth depends on
    how you look at it. You are pretty incisive in your opinions but I think deep down you are not a typical wise-guy 😆 Really I like a lot your comments

  • #78496
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    Anonymous
    Participant

    Phew: I thought another member for my Shakeel is an idiot fan club.

  • #78497
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    Anonymous
    Participant

    ‘…………..’Spain is different”

    does that mean that some Spanish judges are not capable of making consistant decisions on cases that are clearly ‘right or wrong’ as judged by any reasonable thinking person, and could have life changing consequenses? Surely that deems that person not fit to judge?

  • #78498
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    Anonymous
    Participant

    Shakeel 😀
    The time to worry is when everyone says they like you – then you know something is wrong ❗

  • #78500
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    Anonymous
    Participant

    Suzanne: It would not worry me the least either way. As I said for a lawyer to make such a remark no matter how flippant. It does not bode well.

  • #78501
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    @goodstich44 wrote:

    ‘…………..’Spain is different”

    does that mean that some Spanish judges are not capable of making consistant decisions on cases that are clearly ‘right or wrong’ as judged by any reasonable thinking person, and could have life changing consequenses? Surely that deems that person not fit to judge?

    I would say that does sum up things at present. There are still many judges in the system tainted with developers money and protecting friends and family in local government.

    Spain has a very bouyant old boys network. Only in the last few years have precedents outside of this network been achieved, largely due to the new, younger and more democratic intake, who most likely were too young to imbibe the Franco era morals.

    European precedents are more commonly taught in Spanish law schools now, with the aim of embedding more consitent and fair rulings from seemingly older and wiser legal fraternities within more senior member states.

    It is a case of parachuting in greater and fairer legal machinery rather than waiting for it to develop from a very embryonic state.

    It isn´t going down at all well with certain corrupt sides of the Spanish legal hierarchy, they are exposed and uncomfortable.

    The Malaya case is an exellent example of the internal struggle going on.

  • #78502
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    Godstich44 I am going to tell you just an example, something about one of the most famous and unjust judgment in the lately history of our country named “The case of the mini-skirt and the rapist”.
    In 1998 a judge of Lleida acquitted defendant because the victim, a girl, was wearing a mini-skirt. He considered justified the action of the rapist because the girl was provoking. What do you think about this ?
    It is not an easy job to be a lawyer in Spain if you have to deal with this kind of mentality

    Felix

  • #78503
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    Peter good: I agree with you fully on the old boy network. Add to that The Opus family and of course the surname of famalies.

    I have met some very nice people whose parents object to their partners not having the right family/surname. In a few instances they have taunted their daughter for their short comings in not being able to find a man with the right family name. This was in South of Spain and I hope that this does not happen in Madrid & Barcelona. Here I go with another contentious issue.

  • #78505
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    Felix

    yes, that speaks volumes.

    Along way to go before some of us can feel confident that the judge in our case will come to the right conclusion, even in what should be a case of very little doubt of the outcome.

  • #78506
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    @spanishlawyer wrote:

    It is not an easy job to be a lawyer in Spain …

    My experience of lawyers in Spain is that it is not only an easy job – no accountability to anyone, least of all the client – but also extremely lucrative. Lawyers charges are far higher in Spain for far less work.

    Of course this does not apply to ALL lawyers, and certainly not the ones who give freely of their good advice on this and other forums. But it does seem to be that the potential to make a lot of money for a very poor job is there for the taking.

    I wish that those with the power to fix this – notaries and the Colegio de Abogados – would take some action to make changes.

  • #78507
    Profile photo of Anonymous
    Anonymous
    Participant

    @goodstich44 wrote:

    Felix

    yes, that speaks volumes.

    Well, for me it means very little & has nothing whatsoever to do with what we are talking about here. Felix has used, as an emotive example of ‘justice’ in Spain, this case of rape which he calls ‘ …one of the most famous and unjust judgment in the lately history of our country…’. Obviously so famous, as it was so unusual & outrageous.

  • #78509
    Profile photo of Anonymous
    Anonymous
    Participant

    Tilly: Spot on.

  • #78511
    Profile photo of Anonymous
    Anonymous
    Participant

    Suzanne wrote 😆

    Shakeel
    The time to worry is when everyone says they like you – then you know something is wrong

    Oh Well 😀 I have nothing to worry about then 😆

    Well the there are a couple that think I am O.K 😆

    Tilly spot on I agree also.

    Frank 8)

  • #78512
    Profile photo of Anonymous
    Anonymous
    Participant

    Hi Suzanne

    ok, that might be an extreme case, but i was referring to how far things need to improve in some courts, before being regarded as acceptable. I think we are saying much the same thing, so no need to jump down my throat!

  • #78514
    Profile photo of Anonymous
    Anonymous
    Participant

    😯 😯 ❓ ❓
    Where on earth am I ‘jumping down your throat’ Goodstich?

  • #78524
    Profile photo of Anonymous
    Anonymous
    Participant

    Suzanne

    must be a web text misunderstanding perphaps. I was suprised to see quite a sharp reaction to my point about the rape case, which while i realise has nothing to do with the thread subject, does reflect the terrible attitude of some judges, and how, with those attitudes it’s not suprising to read about various injustices still going on. That’s all, no harm meant.

  • #78534
    Profile photo of Anonymous
    Anonymous
    Participant

    @peter Good wrote:

    There are still many judges in the system tainted with developers money and protecting friends and family in local government.

    For me, Peter has hit the nail on the head as to what is happening at some court hearings.
    In my opinion there is no doubt that going back to the Gil era and probably beyond, there have been judges caught up in the money-for-favours or the friends+family syndrome.
    And actually they are now rather caught between a rock and a hard place. They daren’t start ruling against developers who have feathered their nests in the past, but if they carry on blatantly ruling ‘against the law’, it may well eventually catch up with them via investigation.

    There are laws that are vague/ambiguous such as the UK one on intruders in your home where you are allowed to use ‘reasonable force’ if confronted by a thug. Reasonable force can have a dozen different interpretations by a dozen different judges as to what is acceptable.

    But what is going on in Spanish courts is different. There are some laws that are almost childlike in their simplicity and clarity with regards to interpretation, with no room for if’s and but’s.

    The Bank Guarantee Law 57/68 is one of them, as is the law regarding the Licence of First Occupation.
    When it is stated clearly you are not legally obliged to complete until this licence in place, and then a judge rules that a purchaser must complete despite there not being a LFO as in a case recently, and to add injustice to injustice ordered this purchcaser to pay the developer’s lawyer’s costs for taking it to court, it shows there is a blatant bias against the purchaser and disregard for the law going on.

    IMO these judges must be investigated. It is their existence in the system who make going to court in Spain a lottery as to whether you will get justice or not. Their removal will go a long way to getting justice in Spain back on track.

    When precedents are set which tie these judges’ hands in how they can rule in future cases, it is at least a step in the right direction to achieve this.

  • #78535
    Profile photo of Anonymous
    Anonymous
    Participant

    charlie

    well said, that really does seem to be the situation, and doesn’t fill me with confidence. However every case that’s exposed as going the wrong way really ought to improve the next persons lot.

  • #78539
    Profile photo of Anonymous
    Anonymous
    Participant

    “There are still many judges in the system tainted with developers money and protecting friends and family in local government”

    There are not many judges, it is very difficult I would say quiet impossible to find a judge tainted in Spain. I am working as a lawyer for about 12 years and my “master” for about 48 years and we have never seen something like that.
    The problem is that a judge in Spain actually has a total freedom when he is construing or interpreting the law and sometimes you can see contrary judgments with the same facts and circumstances.

  • #78546
    Profile photo of Anonymous
    Anonymous
    Participant

    @spanishlawyer wrote:

    I would say quite impossible to find a judge tainted in Spain.

    Come on now, Felix. 🙄

    Here’s one to get you started in your search.
    http://www.typicallyspanish.com/news/publish/article_14904.shtml

  • #78547
    Profile photo of Anonymous
    Anonymous
    Participant

    Just one Charlie. Try to find more.
    We have many corrupt politicians and cheeky developers and builders

  • #78549
    Profile photo of Anonymous
    Anonymous
    Participant

    Felix – You’ve forgotten to add lawyers to your list!
    And no need to go looking for them, Suzanne has a long list of them re. her petition – appropriately named: http://www.spanishpropertyscandalpetition.co.uk.

    Many lawyers are part of the current scandal. Without their involvement, most of the corruption could never have happened. Do you agree?

  • #78551
    Profile photo of Anonymous
    Anonymous
    Participant

    These lawyers are not corrupt they are working for the developers. As you know they are not independent just recommended by the agents

  • #78552
    Profile photo of Inez
    Inez
    Participant

    Then why didnt they declare their interests when individuals were buying from the developers they were acting for? Surely the conflict of interest should have been stated at the time!

  • #78553
    Profile photo of Anonymous
    Anonymous
    Participant

    The problem is that a judge in Spain actually has a total freedom when he is construing or interpreting the law and sometimes you can see contrary judgments with the same facts and circumstances

    That a Judge in Spain can construe the law in different ways is unbelievable. The Law is the Law and it should not be allowed to be nipped & tucked to suit , in most cases, the developer.

    These lawyers are not corrupt they are working for the developers. As you know they are not independent just recommended by the agents

    We asked our Marbella based lawyer if there was any connection between them and the developer, they said they were working only for us and in our best interests! 😯 What a joke!! Not only were they corrupt they were liars too.

  • #78554
    Profile photo of Anonymous
    Anonymous
    Participant

    I would put Notaríos´ at the top of the list.

    These dosy individuals allow completions to proceed without ensuring all legal paperwork and bank guarantees are in place.

    They are well aware that local authorities cannot re-classify land useage yet a Notary allowed the Priors´ sale to complete on that basis.

    They are some of the highest paid individuals in the conveyancing process yet they do nothing to ensure people avoid buying illegal properties.

    In my experience, they rush into the room, get buyers names wrong, babble away for a few minutes, and after the signing dash out of the room and into another for another 700 Euro´s worth of shoddy work.

  • #78555
    Profile photo of Anonymous
    Anonymous
    Participant

    Inez perhaps I´d say that you are right but I think that you can´t lump developers, agents, politicians, lawyers and judges together. I´d separate lawyers and judges in this awful tale

  • #78557
    Profile photo of Anonymous
    Anonymous
    Participant

    There´s also so queer as folk here in Spain. Perhaps we’re really piling it on with our opinions

  • #78558
    Profile photo of Anonymous
    Anonymous
    Participant

    @spanishlawyer wrote:

    These lawyers are not corrupt they are working for the developers.

    That is exactly my point.
    When they are being paid by the purchaser to look after their interests, they still prioritise the developers’ interests. This is purely and simply to line their own pockets due to lots of future business with these developers (not to mention the ‘possibility’ of the odd brown envelope).
    Ethically and morally this is a DISGRACE and they should be struck off for it.

    Our original lawyer lied to us, kept essential information from us (like the fact our developer had had the building licence revoked), made out they never knew but we found out that 9 months previously they had advised another client to accept an alternative apartment on another development because of it.

    Please Felix, don’t defend these lawyers or deny this is happening otherwise it will place you in the same lawyers’ Boys Club in our eyes and will lose you any credibility you may have gained on this forum.

  • #78561
    Profile photo of Anonymous
    Anonymous
    Participant

    I am agree with you. You can´t serve God and Mammon. Charlie please I am not defending these lawyers, nobody could. I admire your job in this forum and you probably could avoid hundreds of scams but I think it is not a good idea to create a pessimistic atmosphere where everything is wrong. This situation is not a hopeless case.

  • #78562
    Profile photo of Anonymous
    Anonymous
    Participant

    @spanishlawyer wrote:

    I think it is not a good idea to create a pessimistic atmosphere where everything is wrong. This situation is not a hopeless case.

    Sadly Felix, for many people the situation has been and still is hopeless.

    There are so many people who have had right on their side yet still received rough justice.

    Corruption in Spanish law begins with a Policeman at the bottom and goes to the Judges at the top.

    My own lawyer tells me he is so ashamed at many of his collegues. Some of whom, claim back their clients CGT who have returned to the UK without informing them.

    In his favour, he loathes lawyers who work for developers and goes after them with a real passion. There must be many lawyers like him and I admire them.

  • #78563
    Profile photo of Anonymous
    Anonymous
    Participant

    @spanishlawyer wrote:

    ….I think it is not a good idea to create a pessimistic atmosphere where everything is wrong.

    The corrupt mayors, lawyers, agents, developers et al have done a good job of that without any help from me.

    @spanishlawyer wrote:

    This situation is not a hopeless case.

    I know, especially when one eventually finds a good, honest lawyer like we have now who is not afraid to confront the ‘big boys’ in getting us and many others the justice they deserve.
    Not forgetting the help of good SPI forum lawyers like Drakan and MariadeCastro who for many years have given their advice here.

    All of us who have been badly bitten appreciate not all professions are tarred with the same brush.

  • #78564
    Profile photo of mariadecastro
    mariadecastro
    Participant

    Spanishlawyer, my colleague:

    Let me humbly know:

    How can the Lack of Bank Guarntee be a “Criminal offence” ? According to Additional Provision of the 1999 General Building Act is just an administrative breach.

    Regarding the better approach for may of the illegalities by developers: I need to dissent ( that is actually the essence of our proffession): Civil procedure is, in my opinion, much more effective to act against illegalities of developers. The Criminal accusations are more difficult to prove and therefore are communly filed by Judges and derived to the civil field.

    Of course I fully respect your criminal approach of them when clear and needed.

  • #78565
    Profile photo of Anonymous
    Anonymous
    Participant

    You may have a very honest & professional lawyer representing you. How can one be sure that the Judge is not in the pocket of the Developers and they have been hunting together in the mountains of Cordoba a week before saluting each other on Fino and Jabugo. ??????.

  • #78567
    Profile photo of Anonymous
    Anonymous
    Participant

    Hi Maria, on this ‘criminal’ point, Ley 57/68 states in article 6:

    Art. 6.° (…)La no devolución por el promotor al adquirente de la totalidad de las cantidades anticipadas, con infracción de lo dispuesto en el artículo 1.° de la presente Ley, será constitutivo de falta de delitos sancionados en los artículos 587, número 3, y 535 del vigente Código Penal, espectivamente, imponiéndose las penas del artículo 528 en su
    grado máximo.

    May I ask if this article 6 is still valid or has it been changed by a subsequent law?

  • #78577
    Profile photo of Anonymous
    Anonymous
    Participant

    Unfortunately this 6 section of Ley 57/1968 has been removed by our Criminal Code.
    Derogatory provision unique 1.f of our Criminal Code 1995

  • #78583
    Profile photo of Anonymous
    Anonymous
    Participant

    Hi Maria dear Colleague
    I didn´t write “Criminal Offence I wrote “….without building permission or banks guarantees could be considered an offence” I meant “infracción administrativa” or regulatory offence or infringement of a bye-law. I know perfectly that with our Criminal Code we can not do anything against a developer who does not have Bank Guarantee.

  • #78593
    Profile photo of mariadecastro
    mariadecastro
    Participant

    Spanishlawyer, dear colleague:

    Apologies if I misunderstood as the whole paragraph where offence was written, was about criminal Law.

    In standard breaches such as delays, lack of quality, lack of quantity, lack of advertised features or facilities… even when the aspect of a criminal offence seems to be around,we always find more difficult to prove a criminal offence than a civil breach, in many occassions the divisory line is very thin, and it happens that Judges prefer to file and point out that the case may be worth it in the Civil Jurisdiction.

    Just out of experience.

    But your experience, spanishlawyer, seems to be different, and my full respects to that.

  • #78601
    Profile photo of Anonymous
    Anonymous
    Participant

    Charlie,

    Great post and very useful. Do you have any reference for the Supreme Courts decision – parties names or case number?

    I would remind all that they should pay specific attention to the BGs offered by the developer’s bank particularly if they are to pay or have paid further sums – in addition to their deposit – during the build out period of the property. With each additional payment made the BG should be revised – and updated – to reflect to total payment.

    Please also ensure that either you or your lawyer has on file fully signed and dated BG’s reflecting your total payments made. In the event of a dispute with your developer you’ll have the devil’s own job getting original BG’s from the developer.

    Good luck,

    Mark

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