Lawyer Problems and Indemnity

[Anonymous]

I have a problem with our off plan build contract – The construction company is going bust and are offering an alternative apartment which we dont want. It is clear they never had building consent for the original development although the contract says that they did. There was no bank guarantee with our deposit that we paid in January 2004 – we stand to lose 60,000 Euros. If we cant recover from the builders aren’t the lawyers liable because they failed to check the status of the building licence – it appears they did not research whether it was valid and just accepted what the builders said to them. The lawyer is registered with the Alicante Law Society – have we a valid claim against the indemnity fund? The lawyers had other failings as well – is it easy to set up a claim against the lawyers insurance?

[Anonymous]

I’m extremely dissapointed hearing your case.

Yes Keith, you are in your right and would surely win at the ICA of the province where yourt lawyer is collegiated should you put forward the case..

Those bank guarantees are there to recover your moneis in case of default payment of the developer. Normally you must allow us a coupleofmonths unafter payment until we get said guarantee. In this case if it dates back from january 2004 there is no excuse. Your lawyer is liable.

May I add also that you are not compelled to acquire a different property. You can pullout of the contract, recover all your money (including deposit) and ought to be paid 6% interest as from Law 57/68. the fault lies clearly with the developer.

Your lawyer’s lack of professionalism is outstanding to say the least.

By all means you may have access to our professional indemnity fund If such is the case as you post. I don’t know what’s the amount allocated for this in Alicante province.

Retrieve all emails, faxes, letters etc of the case and take it to the ICA of Alicante. I’m sorry to hear this case.

[Anonymous]

Thanks for the information Drakan –

Do we have to sue the construction company first or can we directly sue the lawyers without attempting to recover from the construction company

I understand that the original construction company have now changed into a different company to avoid being succesfully sued.

What procedure should we follow?

[Anonymous]

@Keith Brown wrote:

I have a problem with our off plan build contract – The construction company is going bust and are offering an alternative apartment which we dont want. It is clear they never had building consent for the original development although the contract says that they did. There was no bank guarantee with our deposit that we paid in January 2004 – we stand to lose 60,000 Euros. If we cant recover from the builders aren’t the lawyers liable because they failed to check the status of the building licence – it appears they did not research whether it was valid and just accepted what the builders said to them. The lawyer is registered with the Alicante Law Society – have we a valid claim against the indemnity fund? The lawyers had other failings as well – is it easy to set up a claim against the lawyers insurance?

We are having the same problem on our purchase but with no offer of an alternative property. We are trying to claim under the lawyer’s indemnity insurance through the colegio and have dispensed with their services in the meantime. We have engaged a new lawyer to pursue the claim.
Like you there are others here who have had a problem with lack/revocation of building licenses.

[Anonymous]

Keith you have to hire a -hopefully- good lawyer and sue the developer.

Your new lawyer will advise you what to do in the case of your previous lawyers. I wouldn’t sue them first, take the complaint to Alicante’s ICA.

Guest: you are not coerced, compelled or forced in any way to complete on the new propertyif the developer failed to obtain the building licence.

Pull out, recover all your moneis plus 6% interest under Law 57/68. Consult a lawyer. Don’t let the developer dubb you in to complete an unwanted property if it is not the one from the original contract.

[Anonymous]

Thanks again Drakan – the other thing the lawyer did not do was to ensure there was a copy of the plans attached to the contract despite us saying that he should get a signed copy of the plans. Additionally the “plans attached” are specifically mentioned in the contract. When we eventually got the plans they were different to what we had understood the contract was for. I have emails specifically requesting the lawyer to get the plans at the time of completing the contract.

Does this make any difference? does it make our case stronger?

The other thing there was a cash payment as part of the deposit that the lawyer handled – he did not discourage this – should he have told us not to make this cash payment? Is the cash payment recoverable?

[Anonymous]

hi it would be a goog idea to let us all know the name of the construction company before it went bust and name it uses now, its good to let others know so they dont get there fingers burnt , dont let them do this to others, if not they carrey on doing it….help others out there thanks bun

[Anonymous]

@Keith wrote:

The other thing there was a cash payment as part of the deposit that the lawyer handled – he did not discourage this – should he have told us not to make this cash payment? Is the cash payment recoverable?

I don’t like speaking about this subject.

This is ilegal albeit a common practice throughout Spain.
Your lawyer must discourage you from doing this.
Bpayments are naturally not recoverable and do not even mention it before the ICA. Consult with your lawyer.

With the contract the constructiopn/architectural plans should be attached, SIGNED in every page, as well as the memoria de calidades or quality material scroll which specifies the type of marble,the typeof wood,the make of kitchen apparel etc…

Your lawyer failed to do this ? 😯 What can I say ? Speak toyour new lawyer, you will be awarded a compensation by the developer if you have lessmeters squared constructed than in contract. You must ALWAYS ensure this in Spain.

[Anonymous]

Bun – the company are still operating but do not appear to be actively marketing – I do not want to name names because I might be giving out wrong information – the moral of the story is be very careful and go to a reliable lawyer. Thanks Draken – our path is now clearer.

[Anonymous]

Draken – Are you saying that any cash payment is not recoverable at all because it is not mentioned in the contract.

I was told by the solicitors office manager that everyone does it in Spain and was positively encouraged to make the cash payment. I also have a copy of the instructions on the solicitors notepaper.

Have I done anything that is illegal?

Shouldn’t the lawyer have told me “dont do this it is against Spanish Law”? Had I been advised properly I would not have got involved in any cash payment.

On the other hand perhaps I was foolish and should have seen through it!

[Anonymous]

with cash payment you mean you underdeclared the price of the property at the notaries and paid the difference in cash to the developer. This is ilegal and you may be prosecuted if they find out. The Tax Authorities are clamping down as of late (within this last year) on this very common practice in Spain.

A lawyer must not recommend you to pay like this at any time.

Besides all the above, when you underdeclare a property of first construction (off-plan) you waive 7% VAT. But the truth is that you are financing the sellers capital gains tax; being yourself a non-resident it will be at 35%.

So doing the maths you save yourself 35 minus 7= minus 28. You save only now 7% to pay later on an increase of 28% in taxes which you shouldn’t have paid in the first place because it corresponded to the seller. You are in fact paying his taxes because he declares he is making less of a profit in the sale than he really is. You finance the seller’s taxes is the bottomline of underdeclaring the value of a property.

When you sell the property in a few years time the increase in value will be artificialbecause you underdeclared in the first place. Unless your purchaser also pays you in cash and you underdeclare in turn pasing on the tax liability to the pourchaser.

As a general rule the purchaser must always try to declare the exact amount and avoid underdeclaring besides the fact that its ilegal, whereas the sellers interest is always to underdeclare

[Anonymous]

I THINK SPAIN HAS A BAD PROBLEM with bad lawyers, and the spanish goverment seems to have a hand in it , They dont seem to be ripping there own spanish folk of, only the rest of europe, , Think of how many people buy in spain, how many people are taking for a ride, there are many people been riped of, Thats why the spanish goverment keep quite , building is there bread and butter, they are not going to shout it out about all crooks in development and lawyer. repeat lawyers, as we would all stop buying there and goverment would loose out , all the tax, How the hell can we trust when we dont know who to trust, Shame really, i think spain coast has had it , but whos fault is it,, its are own fault as we feed it,take the feed away and they wilt ,, this is a very good forum ,DRAKEN you are the 1% good in lawyers, 98% of the rotton apple needs to be bined….. I THINK LAWYERS NEED TO BE STRUCK OF OR COME TO ENGLAND AND LEARN HOW TO BE A PROPER LAWYER we can trust 99% of our lawyers ,but we do have 1% bad but they are shamed and struck of and shut down in weeks and not much paper work, I blame the spanish govermnent in all of this and the courts WHY SHOULD THEY CARE ITS ONLY USE AFTER ALL 🙄 🙄 🙄 🙄 🙄

[Anonymous]

Well said. It reflects the views of many on this forum. IMO. Just look at how many pages “SPANISH LAWYERS” has generated.

Drakan has been wonderful in his responses to us. I just hope he will not get into hot water with his employers. On the other hand, maybe we have helped him by highlighting just how unscrupulous so many of his contemporaries are in the Spanish law profession. Maybe he will help to redress the problem.

[Anonymous]

Drakan can you help.

I have had a quote of 860 euros for a solicitor to look at my documents from the bank to top up my mortgage in Alicante , is this areasonable price it seems high to me.

Can you recommend a Solicitor i can give pwer of attorney to in Alicasnte to sign the mortgage at the Notary?

Thanks

Nick

[Anonymous]

Drakan can you help.

I have had a quote of 860 euros for a solicitor to look at my documents from the bank to top up my mortgage in Alicante , is this areasonable price it seems high to me.

Can you recommend a Solicitor i can give pwer of attorney to in Alicasnte to sign the mortgage at the Notary?

Thanks

Nick

[Anonymous]

Drakan can you help.

I have had a quote of 860 euros for a solicitor to look at my documents from the bank to top up my mortgage in Alicante , is this areasonable price it seems high to me.

Can you recommend a Solicitor i can give pwer of attorney to in Alicasnte to sign the mortgage at the Notary?

Thanks

Nick

[Anonymous]

Drakan can you help.

I have had a quote of 860 euros for a solicitor to look at my documents from the bank to top up my mortgage in Alicante , is this areasonable price it seems high to me.

Can you recommend a Solicitor i can give pwer of attorney to in Alicasnte to sign the mortgage at the Notary?

Thanks

Nick

[Anonymous]

@swansea wrote:

Drakan can you help.

I have had a quote of 860 euros for a solicitor to look at my documents from the bank to top up my mortgage in Alicante , is this areasonable price it seems high to me.

Can you recommend a Solicitor i can give pwer of attorney to in Alicasnte to sign the mortgage at the Notary?

Thanks

Nick

Hi Swansea,

Mark (forum administrator) can recommend you lawyers in Alicante.

What does “to top up a mortgage” mean ?

[Anonymous]

@swansea wrote:

Drakan can you help.

I have had a quote of 860 euros for a solicitor to look at my documents from the bank to top up my mortgage in Alicante , is this areasonable price it seems high to me.

Can you recommend a Solicitor i can give pwer of attorney to in Alicasnte to sign the mortgage at the Notary?

Thanks

Nick

Hi Swansea,

Mark (forum administrator) can recommend you lawyers in Alicante.

What does “to top up a mortgage” mean ?

[Anonymous]

Hi

114,000 mortgage now have,

equity in property is about 100,000 euros

as property is now worth about 214,000

so i want to increase the mortgage (yop up) to take out the equity

the solicitor Mark recommended does not do the service of attending the Notary office to sign as my power of attorney as he has emailed me back from his office in Alicante

maybe i will email him again as he may have misunderstood the service i needed

[Anonymous]

Hi

114,000 mortgage now have,

equity in property is about 100,000 euros

as property is now worth about 214,000

so i want to increase the mortgage (yop up) to take out the equity

the solicitor Mark recommended does not do the service of attending the Notary office to sign as my power of attorney as he has emailed me back from his office in Alicante

maybe i will email him again as he may have misunderstood the service i needed

[Author]

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