July 28, 2006 at 11:08 am #52049
Hi, Please could anyone offer me some advice, I purchased off plan at Duquesa Village in 2003 with a completion date of 31st Dec 2005. The apartment is still not complete and I would like a refund of my advance payments under the bank guarantee. The developer is apparently refusing to cancel our contract, blaming the delay (nearly 9 months) on the ‘plaster strike(s)’ which I think is unreasonable for such a long delay, but they have ignored a buro fax sent to them by my lawyer. The company covering the guarantee will not pay out unless the contract is cancelled. My Lawyer says that my only option is to take legal action, which will require a 6,000 euro deposit. But I need to do this by the time the habitation licence is granted.
The advice I would like is .. is my lawyer correct? and is 6,000 euro the normal rate?. Is there any other course of action open to me?. Also can I refuse to complete, saying that I am ‘in dispute’ or can I only do this if court action is undertaken?…. and finally ! … what are my chances of winning the case at court!.
Any advice gratefully received !!!, Thanks.
July 28, 2006 at 3:03 pm #64204
Your developer is in breach of contract.
He cannot simply ‘refuse’ to cancel your contract !!!
The ‘plaster’ problem is the developer’s, not yours, and he should have an insurance for these kind of events.
The way it works is your lawyer goes to the notary, and asks the notary to ‘invite’ the developer to complete by a certain time.
Because your developer can’t complete because your apartment is not finished, the notary will then cancel your contract.
Once your contract is cancelled, your lawyer can apply to enforce your Bank Guarantee.
You should not need a court case for this unless the bank who issued the Bank Guarantee refuses to pay for some reason (eg when is the enforcement date on your BG?).
We have just claimed on our Bank Guarantee – the only reason the bank at first refused and we had to go to court was because the enforcement date had (naughtily) been put at one year after completion date! A very dirty trick by the developer.
However the judge told our bank to pay up immediately.
I do not understand why your lawyer is quoting you 6000 euros for what should be a relatively simple procedure. A trip to the notary is a few hundred euros. For your lawyer to send a burofax to the bank to request enforcing a BG is not big bucks (about 4 euros).
And I assume you have already paid your lawyer X amount for a complete sale procedure????
A sale can fall through, and whatever he needs to do is part of his fee.
I feel your lawyer is on the side of the developer and buying time.
I also feel he is trying to rip you off – our lawyer charged us just 1200 euros and that included a court case!!
Ask your lawyer to explain exactly what the 6000 euros is for. If no satisfaction, I suggest you seek alternative legal advice from a good recommended independent lawyer, to see what they would recommend.
July 28, 2006 at 3:10 pm #64205
Could you please PM me and tell me who your lawyer is? There is a particular law firm who consistently fails to get BG’s and then asks for 6-7,000€ to take the matter to court. 👿
July 29, 2006 at 7:14 pm #64240
Very remiss of me not to have followed up my previous post. In May I posted for help in getting my bank guarantee from a developer who consistantly ignored my, and my lawyers, repeated requests. Following from the advice I received, particularly from Maria, I pressed my lawyers for some positive action. To their great credit they undertook to sue the developer for breach of contract at their own cost. My costs being to travel to Almeria to see the Notary. After a very stroppy letter to the developers explaining our intentions, my lawyers received a call and a promise to provide a guarantee. lo and Behold, three days later it appeared.
The support I felt I received from the people on this site gave me the confidence to go all out to get what I needed.
(Its always the squeaky wheel that gets the most oil)
July 29, 2006 at 8:47 pm #64241
Well done – that is GREAT !
These developers cannot get away with not issuing Bank Guarantees. They are not above the law, and they are legally obliged to issue them.
And having a BG is your legal right.
Besides facing a hefty fine for not doing so, they can also face criminal charges over it, and even prison – as it is a criminal offence.
Unfortunately, too many lawyers on the CDS are totally impotent and won’t put pressure, and too many developers won’t issue BG’s without it.
Your case is a prime example of how to get results.
Good on yer !!
July 30, 2006 at 5:16 pm #64248
Does any one teh position when you buy off another investor. We basically bouth a property off plan that had been originally been bouth by another investor
We have been told by 3rd party lawyer we probably dont have bank guarantees
We have been told by our own lawyer that we did have but these have now expired
Can anyone help? ❓
July 30, 2006 at 5:19 pm #64249
Apologies for dreadful typos in previous message
July 30, 2006 at 10:57 pm #64255
If the original Bank Guarantee has expired, and your appt. is still not finished, it is possible it has expired because the development is delayed.
Insist that your lawyer obtains a new Bank Guarantee (he should be doing this anyway if he’s any good, you shouldn’t have to ask….) – but make sure the enforcement date is not too far in the future.
There must be a date when completion is supposed to happen (in your contract…?).
August 2, 2006 at 11:23 am #64310
I am new to this website and am really grateful for all the useful info on BGs. We have been tolerating a very poor lawyer who obviously does not have our best interests at heart and without this and the Eye on Spain website we would have known nothing about BGs or even the fact that they existed! We are going to try to claim our deposit back and it is gratifying to know that others have succeeded. We now just need a good lawyer who isn’t going to charge us the earth (hmm!). Barbara’s sounds the best to me, so far. Would you mind letting me have the contact details?
Many thanks, Liz[/quote]
August 2, 2006 at 11:40 am #64311
Sadly, Liz he is unable to take on any more work just now. A victim of his own success! 😉
August 2, 2006 at 11:45 am #64312
Hi Claire – thanks for speedy response. It’s a great pity – if he is able to squeeze just one more client in in the near future please would you let me know?? Thanks, Liz
August 2, 2006 at 11:53 am #64313
Of course, but he is away on his, quote, “hollydays” : 😆 next week. His English is waaaaay better than our Spanish though!
August 2, 2006 at 11:56 am #64314
Yes, my dodgy lawyer is away on her ‘hollydays’ too, so can’t do much anyway until she gets back (20/8). As far as I can tell life is one big ‘hollyday’ for her!!
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