[Anonymous]

Hi

I previously posted here about issues with the cancellation fee for a promoter’s mortgage on an off-plan apartment. Our legal advisor had told us that we would have to pay the cancellation fee even though we never had any intention of using the mortgage. Thanks to the advice I received here we reverted to our legal advisor to inform him that we weren’t willing to pay the fee. Unfortunately, he appears to be doing nothing to fight our corner.

We have now heard that the developer also appears to be reneging on some of the promised features of this luxury development such as security, sports centre, commercial centre, etc. All these features were mentioned in their promotional brochures but not in the contract. Again our legal advisor is suggesting there is nothing we can do about it.

We’re now so fed up with the purchase of our ‘dream home’ that we asked our legal advisor about pulling out of the purchase on the basis that the delivery of our apartment would not be completed before the date in our contract. He has told us that under normal circumstances this would be possible but not in our case as the delay is due to a strike of construction workers earlier in the year. Are we being told the truth? I can’t help but not believe anything I hear from the developer or our legal advisor!

[mariadecastro]

All you tell sound like… against the minimum requirements of consumers laws. Go find a good lawyer to do a good pressure on them to get your money back, plus interests, plus expenses out of courts.

[Anonymous]

Hi Maria

Many thanks for your reply. The contract says that our apartment is to be completed at the latest by the end of June. It is our understanding that if the developer doesn’t complete by then that we can claim our deposit back with some interest. However, our legal advisor now claims that as the delay is due to a strike (rather than the direct fault of the developer) then we can’t claim our money back on this basis. Is his assertion true?

[Anonymous]

If the developer knew that this strike was going to cause delays to completion then they should have advised you and all others affected. They also need to show that they did everything within their power to minimise the potential delay eg contracting in other labour, working extra time to make up for lost time etc.
Have they advised you how long delay to completion is going to be? Ask for proof re the strike etc. Arm yourself with all the facts. They can probably legitimately claim that a strike is beyond their control as with a nationwide shortage of materials or components for example, but they must advise you in writing AND be able to show that they did everything they could to minimise delays.
As the end of a contract period nears the developer can’t just come up with random past events that have “caused” the delay.

[Anonymous]

Hi

We were never officially informed of any delays on the site. We heard on one visit (prior to the strike) that they were well ahead of schedule (due to good weather) and would probably complete the apartment early. On another visit earlier this year (during or after the strike) we weren’t informed of any delay to the completion of our apartment. They did say that they had issues with a strike. I recently contacted the promoter to check if our apartment would be ready for our summer holidays and she said that there is likely to be delays but gave no suggested completion date and didn’t mention the strike. She said that due to firms moving to ‘summer time’ for the next few months that there was likely to be a delay in our apartment. She suggested making alternative arrangements for our holidays. The first we heard that the strike was at fault was from our legal advisor when we suggested that we might pull out of the purchase. He came up with this excuse without knowing the completion date of our apartment and without consulting with the developers etc. It is very frustrating as we feel we can’t trust our own legal advisor. I would appreciate any advice that would assist us in going back to him and insisting that our rights are protected. Many thanks.

[mariadecastro]

Again: Go find an independent lawyer. The unfulfilled brochure, this delay, the intend of you paying cancellation mortgages´fee. It may be that just a call from an independent lawyer will work for them to change.

[Anonymous]

Hi Maria

I appreciate what you’re saying but our existing lawyer is ‘independent’. Perhaps we have been unlucky and picked a bad lawyer or perhaps his advice about not being able to withdraw from the sale on the basis of delays caused by a strike is correct. This is our quandry. Is the lawyer correct? If not then we have no problem approaching a second lawyer to represent our wishes. On the other hand, if he is correct we don’t necessarily wish to waste any more money on the matter. Hope you see my point.

[Anonymous]

Hi Maria

I noticed in a reply to a similar question you previously wrote as follows … ‘It is usually stated in the contract that the cancellation of this is possible after the agreed deadline. It is also usually stated that the failure must be due to the responsability of the vendor to enable you to cancel it with devolutions of amounts plus interests’. Does this mean that if the delay is outside the control of the vendor then the buyer may not be able to withdraw from the control? How is it determined how much of the delay is due to the fault of the vendor? Many thanks.

[mariadecastro]

He needs to fulfill in the agreed time. You can sue him for breaching the contract if he doesn´t and ask for a compensation for damages ( rents…) Then, if the delay is due to a “strike”, he will have to prove it by a licensed construction specialist. ( number of days of the strike: correspondence with the measure of the delay: imposibility of hiring a different company to keep building….)

I always try to win out of Courts, but still is important to have your actions at hand to be more powerful at the compelling.

Two provisions of the Spanish Civil Code:

1256.-Artículo 1256.

Validity and application of contracts can not be left to the will of one of the contracting parties.

1101.-Artículo 1101.
Are risponsible of compensation of damages those who, in observance of their obligations, incurrs in bad willful misconduct, negligence or default, or those who, anyway violate them.

[Anonymous]

Hi Maria

Many thanks for your reply and it provides us with the information we were looking for. Your assistance on this forum restores some of our faith in the system. You say that we can sue for breach of the contract if he doesn’t complete. However, would it be usual to be able to use our bank guarantee to withdraw from the contract if he isn’t into a position to complete by the date in the contract? Can he obstruct this by claiming the delay is down to a strike? I would have hoped that we would be able to use our bank guarantee to enable us to get our deposit back without having to resort to the courts. Perhaps we are niave in our beliefs! Many thanks.

[Anonymous]

Hi Tony and Angie

Many thans for your response. In this case we’re the buyer but I guess the process would be much the same. As the contract states that the seller must be in a position to complete by a certain date is there a need to give an extension? Also as there is a bank guarantee would there be a need to go to court to invoke this guarantee?

[Author]

Posts