Bank Guarantee refusal

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This topic contains 21 replies, has 10 voices, and was last updated by Profile photo of Anonymous Anonymous 10 years, 4 months ago.

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  • #52048
    Profile photo of Anonymous
    Anonymous
    Participant

    Hiya,

    Can anyone help me please.
    My lawyer states that for the last 2 years or so he has been trying to get the bank guarantee from the developer but they keep on coming out with excuses.

    Our development should have been completed last year and they have refused to refund my money!!!

    Can anyone help me please. I am stuck and unsure what to do….

    Golf

  • #64190
    Profile photo of Anonymous
    Anonymous
    Participant

    You’ll gain alot of valuable advice reading other posts on this forum. If your lawyer is not currently producing results why not seek an opinion from a different one?

  • #64192
    Profile photo of Anonymous
    Anonymous
    Participant

    Golf,

    Have sent you a PM. Tell your lawyer that excuses are unacceptable ❗ You are paying for a professional legal service, and if they are not able/willing to provide that for you then you’ll be moving to a lawyer who is.

    All the best, let us know how you are getting on.

  • #64193
    Profile photo of Anonymous
    Anonymous
    Participant

    Hello Golf,

    Having read other posts on this site i agree with Carla.

    As I now understand it, the bank guarrantee should be included in a purchase contract as a legal right to the purchaser. If your solicitor signed the contract on your behalf without the guarantee in place, he is either incompetant or simply NOT acting in your best interests. Either way, this is not good for you!

    It may be that your solicitor is more interested in keeping the developer happy than he is in keeping you happy. ie, the cosy relationship that often exists between Estate agent, solicitor and developer, who act in each others interests to preserve an on going profitable relationship.

    Get another opinion from an INDEPENDANT solicitor.

    A particularly good read is the post ‘Farewell message from Charlie and Sofia’ which you should find 2 or 3 pages back in this forum.

    Good luck, David

  • #64194
    Profile photo of Anonymous
    Anonymous
    Participant

    Many Thanks people for the replies and PM’s.

    What my question is can i still get my BG or am i doomed. If i decide to take them to court is that due to them not issueing a bank guarantee? How long does it take for it to get to court?

    Regards
    Golf

  • #64195
    Profile photo of Anonymous
    Anonymous
    Participant

    Golf

    You’re not doomed but you need to decide whether you seriously want to go ahead with the purchase when the developer is refusing to give you a BG. This is ILLEGAL 👿 and he can be fined very heavily by the Courts for this alone.

    He is already one year late on completion and your contract shoud state your rights in this regard. As far as I understand developers are given 3 months grace past stated ‘date of completion’ but any later and they have to refund your money. As you don’t have a BG this may take quite a while but the sooner you get things moving the better.

    Don’t let them wear you down. If your lawyer isn’t tough enough with them & protecting YOUR interests, then it’s time to change.

  • #64197
    Profile photo of Anonymous
    Anonymous
    Participant

    Forgot to mention that my solicitor signed the contract. Is he at fault??? and how can i get my money back. Insurance???

    Golf

  • #64198
    Profile photo of Anonymous
    Anonymous
    Participant

    If he has your Power of Attorney he would have signed on your behalf.

  • #64199
    Profile photo of Anonymous
    Anonymous
    Participant

    Hi Suzanne.

    Yeh he does have power. But shouldnt he have ensured he received the BG before signing???

    Cheers
    Golf

  • #64200
    Profile photo of Anonymous
    Anonymous
    Participant

    A BG can’t be handed over before £ is paid & contract signed. There’s nothing in place legally to guarantee beforehand ❗
    If your contract says you have to pay for your BG – this is an illegal clause which your lawyer should not have allowed; at the very least he should have alerted you to this. This seems to be a common ILLEGAL CLAUSE and many of us have been stung by it, having to sue.

  • #64203
    Profile photo of Anonymous
    Anonymous
    Participant

    Is it actually illegal to promote without bank guarantees?

    I would never, ever, ever purchase without a BG.

    I have taken BG in my business here in Spain and once a client goes in to default you pop to the bank and get your money! Easy!

    Never had to enforce one on a property deal though, and hopefully never will!

    Dont buy in Morrocco then as BG are not in place, you have to take an insurance policy to protecty your money! Try getting money from an insurance company, they are worse than a developer!

  • #64206
    Profile photo of Anonymous
    Anonymous
    Participant

    quoting from an old post of mine, to save you looking it up:

    quote
    5. Bank Guarantees
    It is law that a developer (and no-one else) must issue you with a Bank Guarantee, free of charge, when purchasing an off-plan.

    Your money will be deposited with the developer’s funding bank to protect your payment, and this bank will issue you a document (called Aval) which is your BG. It must state the completion date by which date the developer must finish the development.
    In the case of the development not finishing on time, or the developer going bankrupt, maybe doesn’t even build anything etc. etc., the issuing bank will then return your monies plus legal interest.
    This will require a lawyer’s procedure.

    6. Your lawyer’s advice
    Any of you who have a lawyer that is advising you any different to the above is working for the developer, not you (because his loyalty is to who has given him loads of business over the years).

    The same goes for your agent (remember, no sale – no commission)

    And if any of you have a lawyer that is advising you anything different to the above – for goodness sake, do what Claire, Sofia, myself and loads of others did –
    GET YOURSELF A NEW INDEPENDENT LAWYER
    unquote

    Suzanne is absolutely right – the developer can be very heavily fined for not issuing you a BG. It is illegal.
    What is your lawyer doing, by not threatening them with legal action unless they issue a BG – with the correct dates I might add??
    Our original lawyer didn’t get us a BG for a couple of years (‘oh we asked, many many times…’), discovered she was ‘in bed’ with the developer, so we sacked her.

    Use this as a test for your lawyer – demand that he obtains one by threatening the developer with legal action. If he doesn’t act, sack him and get yourself a lawyer who will look after your interests.

    Your Bank guarantee is the only ‘legal insurance’ you have to protect your money.

    Barbara

  • #64207
    Profile photo of Anonymous
    Anonymous
    Participant

    Hi Charlie,

    Our Lawyer had asked the developer to cancel the contract and refund deposit plus legal interest because they have broken the contract (completion date) and not providing the BG. Our lawyer advised us that the developer responded by stating ‘that they do not recognize your right to the return of the monies paid to date’.

    So confused know…..

    regards
    Golf

  • #64211
    Profile photo of Anonymous
    Anonymous
    Participant

    You say:

    Our lawyer advised us that the developer responded by stating ‘that they do not recognize your right to the return of the monies paid to date’.

    You are in this position because of your lawyer’s derelict of duty in not obtaining a Bank Guarantee!!

    Actually, he is in as much ‘doo-doos’ as the developer.
    The developer for not issuing a BG. Your lawyer for not obtaining one.

    The fact your lawyer is relaying this c**p without doing anything constructive tells me he is taking the mickey and in cahoots with the developer.

    Of course you have rights!!

    Suggest you send a pm Mark (the administrator of this forum), let him know your developer and lawyer’s name, and ask him to recommend a good, recommended, independent lawyer.

    You have a lot of money at stake here – you have to get good legal advice re. where you can go from here.
    And I personally think the starting point is getting a BG. If your lawyer won’t get you one, find a lawyer who will.
    Your developer is not above the law.

    Barbara

  • #64212
    Profile photo of Anonymous
    Anonymous
    Participant

    No need to send me a PM. For lawyers just see here:
    http://www.spanishpropertyinsight.com/spanish_property_solutions_legal.htm

    Mark

  • #64214
    Profile photo of Anonymous
    Anonymous
    Participant

    Mark Thanks for the link.

    My lawyer is on list!!! Ouch that hurts!!!

    Mark how is your list regulated? or recommeded?

    Cheers
    Golf

  • #64226
    Profile photo of Anonymous
    Anonymous
    Participant

    Golf,

    several well meaning people on the site, say ‘change your lawyer’ and though good advice, it’s not always that simple. Despite the advised lawyer being very good, they are often not, for various reasons, in a position to be able to help, and might tell you to go back to the one that you don’t think is working in your best interest?

  • #64228
    Profile photo of Anonymous
    Anonymous
    Participant

    Golf – I don’t know if you read Spanish, but the law below on Bank Guarantees is very specific:

    Art. 2.° En los contratos de cesión de las viviendas a que se refiere el artículo 1.° de esta disposición en que se pacte la entrega al promotor de cantidades anticipadas deberá hacerse constar expresamente:
    (….)
    b) Referencia al aval o contrato de seguros especificados en la condición primera del artículo anterior, con indicación de la denominación de la Entidad avalista o aseguradora.
    c) Designación de la Entidad bancaria o Caja de Ahorros y de la cuenta a través de la
    cual se ha de hacer entrega por el adquirente de las cantidades que se hubiese
    comprometido anticipar como consecuencia del contrato celebrado.
    En el momento del otorgamiento del contrato, el cedente hará entrega al cesionario del
    documento que acredite la garantía, referida e individualizada a las cantidades que han
    de ser anticipadas a cuenta del precio
    .

    [/quote]

    The part of the law underlined above, is basically saying that at the moment of signing the contract, the developer will give to the purchaser (lawyer) a document, issued by the bank, that proves there is a guarantee, specifically for the amounts that have been paid in advance in the escrew account by the developer.
    Seeing this document is your lawyer’s way of checking that the developer has deposited monies with the bank, and that a Bank Guarantee in your name will be forthcoming.
    If your lawyer did not check this, or doesn’t have a copy, he has basically been derelict in his duty.

    Forward to your lawyer the underlined part, and ask him does he have a copy of this document, that you would like to see it.
    We’ll see if he chokes on his morning coffee…….. 😉

    Barbara

  • #64229
    Profile photo of Anonymous
    Anonymous
    Participant

    From time to time someone will recommend a lawyer to me, based on satisfaction with the service received. When I have time I ring all such recommended lawyers to check that they sound motivated and competent. If they do I add them to the list I publish at this website. However, if someone complains to me about one of these lawyers, I look into it, and if they have made an inexcusable mistake or oversight, then I remove them from the list. So it’s largely based on your feedback. I can’t think of a better way (always open to suggestions), but no system is perfect

    Now I have to look into your case. PM on its way to you.

    Mark

  • #64230
    Profile photo of Anonymous
    Anonymous
    Participant

    Goodstich –

    I do not understand the reasons for your post. Even Drakan, a lawyer who regularly posts here, advises to change your lawyer if he is not acting in your best interest.

    I know for a fact you have asked several people on this forum (including myself and Claire) for the name and address of our lawyers in order to change over from yours, but for some reason you never followed through.

    On our development, in the lower blocks that were built (as against the upper blocks that weren’t), there is a group of 14 people who have all changed lawyers – because their own were useless and biased towards the developer, and are all now relieved to have started an action to claim their money back.

    It is simple – as in our case. We walked into our original lawyer’s office, demanded our file back with all our documents, haggled over what we did or did not owe them, and left. We went straight to our new lawyer and handed him our file.
    Not complicated, is it ?!!

    I find your words ‘well-meaning’ a little patronising.
    We are just people who got off our backsides and did something (i.e. change lawyers, went to court, and got our money back).

    You asked me for my lawyer’s name a couple of months ago, did nothing about changing over, and after all this time you have only got as far as still complaining on this forum as recently as a few days ago that your lawyer doesn’t return your e-mails or calls.

    The only way peoople will get results when taken for a ride by the developers and their ‘puppet’ lawyers, I’m afraid Goodstich, is to do something about it, like Claire and I did !!!

    We now have our money back, we are now going for ‘damages’. It is called ‘action’, which for me is better than just complaining about the non-return of ‘phone calls.

    I stand by what I say (‘well-meaning’ or not). If your lawyer is not acting in your best interest – change him.

    Barbara[/b]

  • #64327
    Profile photo of Anonymous
    Anonymous
    Participant

    Hi

    I’m new to this forum andhave found out so many things since finding it.

    We are buying in Almeria in Terque, currently although we have put down a 20% deposit we have neither a builders license of a bank guarantee.

    The solicitor we hired just stoppedd returning our calls so foolishly we have just keft things as they are since at least the build (although not our villa) has started. we purchased in September 2004 but still have no idea when or if our villa will atually get built. At the same time we also put a deposit on a town house in another village, two years on there is no sign of a build and the plans have changed four times. We have hired a different solicitor for this build and they are in the process of trying to retrieve our monies.

    When we brought we thought we had done enough research but we are now sceptical of all the people that we ask help from , even our new solicitor, as we never seem to know who is working for who. We were recommended our first solicitor and our second but who really knows or can find out what is actually happening due to language problems and ldistance factor what is really going on. We have parted with £50.000 and just do’t know if we will ever see our dream fullfilled.

    We never knew any of these sights existed until it was too late, but thank you for all the advice that has been given since.

  • #64338
    Profile photo of Anonymous
    Anonymous
    Participant

    I am buying at Elviria Los lagos de Santa Maria and have never seen bank guarantees. But have been told by my own solicitor that we they have now expired and as property now built are no use to us. We don’t have fist occupancy licences and our Spanish mtge has been declined because the land is subject to rural restrictions. Matters are further complicated as we bought off an investor who effectively signed over contract. It looks like the original purchaser signed over the contract along with the developer. It has been indicated to me for this reason I may not have bank guarantees I have asked my lawyer on several occasions for copies of the bank guarnatees and these have not been forthcoming. Can anyone help as I am now so feedup I just want my money back.
    If any one wants to PM me with regard to my lawyers details to avoid using him I am happy to give details as I believe he has been at best incompetent and at worst dishonest

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