Criminal Liability of Developers

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This topic contains 9 replies, has 7 voices, and was last updated by Profile photo of Anonymous Anonymous 10 years, 8 months ago.

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  • #51646
    Profile photo of Anonymous
    Anonymous
    Participant

    A legal question for any lawyers reading the site –

    If a developer has stated in the contract that a building licence has been granted for a particular development and it turns out that it was an intentional or reckless statement and there is no building licence can the developer be held to be criminally liable where he fails to refund deposits that have been paid?

    In UK law such action could be a criminal deception – is it not the same in Spain.

  • #61340
    Profile photo of Anonymous
    Anonymous
    Participant

    Of course. The developer cannot in any case withhold the funds paid If you want to pull out of the contract due to (there’ll be clauses I guess in your contract) his failure to meet an essential legal contractual condition. He would be in fact breaching the contract as a result.

    Put the case in the hands of a trustworthy lawyer (PM Mark, the forum administrator to supply you with names) and you’ll have your moneis paid back aswell as some compensation in the form of legal interest which ranges between 3-6% (it changes every year).

  • #61568
    Profile photo of mariadecastro
    mariadecastro
    Participant

    There might be also a criminal responsability. Not just effects within the contractual realm but also in the criminal responsability of the developer.

  • #61569
    Profile photo of katy
    katy
    Spectator

    Just pay your lawyer about 10000 (+) euros to fight your case and you may win, wether you get any compensation is another matter in spanish law, you will find the matter will drag on for about another 5 years and the developer will by then have liquidated the company and set up in another name. I know a few people here who have gone through the courts and won, the only gain being a fat lawyers fee.

  • #61574
    Profile photo of Anonymous
    Anonymous
    Participant

    Katy,
    Surely the idea of taking the developers to court is to get your monies+ interest refunded. If the case against the developer is won and you get your money back then the lawyer has done a great job. I would be more than happy to pay his fees(which I would agree before the case). He/she is a professional and you have to pay for their expertise & time. Far better to pay 10,000euros to the lawyer than lose tens of thousands to the developer! The time factor is another thing! 🙁

    I personally, would need to have a very strong case to warrant going to court. Sometimes though you have to take a gamble….I’m not very good at winning!! 😉

  • #61577
    Profile photo of katy
    katy
    Spectator

    What I was trying to say is that in many cases here you win but do not get any money awarded or if you do they do not pay up.

    Don’t know if I read it on here but in a recent case on the CDS a community of town houses lost its pool through bad construction, they went to court and won but were not awarded enough money to rebuild the pool.

    A friend sued a developer for some serious defects…they won (legal fees 25000) the developer appealed, that was two years ago and nothing has been put right. By the time you get a final judgement many of the companies do not exist.

    I agree that it is sometimes necessary to go to court but the system is crazy here and it seems to me that the only winners are the scammers and fraudsters and of course, the lawyers.

  • #61583
    Profile photo of mariadecastro
    mariadecastro
    Participant

    I have recently had some success by getting money + interests + some expenses back without even going to Court. I didn´t charge my client more than that 1% that we agreed in the first place for conducting her along the buying process.

    There are lawyers and lawyers.

    Maria de Castro

  • #61584
    Profile photo of Anonymous
    Anonymous
    Participant

    We ‘accidentally’ tried the criminal route.

    The lawyers we appointed to take our case to the Civil Court took it via the Penal Court against our wishes. It was kicked around the court system for a while, rejected on technicalities a few times although no-one bothered to tell us about this. We were warned it could take 20 years and that may be true.

    We were advised (wrongly as it turned out) to make a denuncia to the police in addition to the proposed Civil action. The lawyer wrote this and we took it to the local Guardia Civil. One officer looked at the details which included the name of the representative of the developer and said (approximately) ‘Oh I know him. He’s a very nice man, I don’t think he’d do this.’ What hope do we have?

    I believe that the best route is probably via Consumer Law in the Civil Court.

  • #61588
    Profile photo of Anonymous
    Anonymous
    Participant

    You have several ways to go against the builder when negotiation fails.

    1.- Administrative:

    You may go to the consumers office (sometimes works sometimes wont)

    You may also report the builder to the Autonomous Community. Article 6 of 57/1968 Law was revoked but under the LOE (General Building Act) there are fines up to 25% of the total amount not guarantied by a BG or insurance.

    2.- Civil Courts:

    If you have a BG or insurance and the deadline for the works to be finished has arrived, the house isn’t finished or they simply fail to provide the LFO (this Law specifically considers LFO a requirement to consider a dwelling finished) and they don’t give your money back plus interests although asked on time (be aware that most BG/insurances will include a deadline to be enforceable) you have a special executive process to ‘execute’ the guaranties. Quite fast process that automatically imposes the court expenses to the debtor. If the completion day hasn’t arrived you have to go to the general process to ask for a refund (cases when completion day hasn’t arrived yet but you may prove is impossible to finish the building) as BG and insurances only become automatically ‘executable’ when the agreed date arrives.

    General Civil action, Yes sometimes it goes slow, it depends on the area you are suing. You may ask for refunds, interests, compensations, damages (including moral damages) or building snags/defects. It’s important to tell your lawyer not to be too ‘greedy’ when valuating the economic importance of what is being asked for and to support your claim with solid economic & technical reports as only if you get all or most you are asking for the builder will be ordered to pay your court expenses. The Law (Civil Code, LOE and Consumer-protection Law) is in your side here and, as we say in Spanish, judges don’t tend to see builders/promoters with ‘good eyes’ (belive me, I know what I’m talking of, this is my area)

    3.- Penal Courts:

    After the article 6 of 57/1968 was revoked in 1995 you may only use this way if there is no BG or insurance, there is no house, and you wont get your money back. Also if you can proof the money you have deposited was not used in the contracted promotion. Criminal Code statues sentences from 1 to 6 prison years.

    You may put a denuncia at Police Station or even at the watch court, but if a serious action is to be taken you should start by a ‘Querella Criminal’ (criminal lawsuit) written and signed by a lawyer.

    Wouldn’t recommend this way unless strong evidence of criminal offense can be taken to court.

    By the way, a 20 year delay in Penal Courts is NOT real

    NO Civil/Administrative action by the same issue can be taken if a criminal procedure is being followed by the same things. In the other hand Administrative & Civil actions are compatible.

    This is only a very simple overall description of what could be done. You will always first have to talk with your lawyer as he wold have all the details needed and would be the one to advice you the best way

    Cesar

  • #61589
    Profile photo of Anonymous
    Anonymous
    Participant

    Cesar,

    Thank you so much for the time you take to help us with such brilliant advice and information. It is greatly appreciated. 😀

    I have forwarded this on to someone who will be pleased of this advice.

    Rgds,

    Claire.

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