August 26, 2006 at 3:20 pm #52161
I know there has been a lot of post re return of deposit but I hope someone will still answer my query. I have been waiting on our development completing for 8 months now. I have been unhappy with the delay, which is still likely to go on, and also with the fact that there is no swimming pool on our block as shown on the plans and the sea view is a little bit of blue above the apartment block in front. Whilst I am more than happy with the finish of the apartment the other issues are more than a little annoying. I have just received an e-mail from my lawyer’s litigation department telling me I can cancel the purchase contract as the delay in delivery is a substantial breach of contract. He does go on to say that a formal letter will be sent via burofax to the developer and the insurance company but that both will probably not refund the deposit and therefore the only option open is to file a lawsuit. This will cost 6 000 Euros plus Vat, plus payment to a court agent which I haven’t been told how much.
From all I have read in this forum the lawyer should not have to go to court as it is my legal right to a refund. However, the lawyer has taken it for granted that we will go to court and has asked me for 4 500 Euros to create a fund for the court agent to start working.
I am in a quandry as to what to do and wonder even if we go to court will I get my deposit back?
August 26, 2006 at 4:38 pm #65222
If your lawyer states that the delay is a “substantial breach of contract” then on the face of it you should be allowed to cancel and deposit returned. However there can be many excuses why the build has overrun and when it finally comes to court it will be up to the judge to decide.
50/50 chance. You have to decide if the risk is worth it…no-one can decide for you.
As for sea view. Unfortunately no-one has automatic right to a view of any kind . What view you have today could be gone tomorrow.
Swimming pool. Why hasn’t your lawyer picked up on this issue? . I suggest you read your contract and the promotion material for developers are notorious for printing disclaimers which go unnoticed when buying and are never pointed out to purchasers.
You admit to being “more than happy” with the finish of the apartment so developers reasoning would be you have broken the contract not them.
Hopefully one of the lawyers will tell you my reply is incorrect and your deposit returned with hassle.
August 27, 2006 at 7:59 am #65229
I wonder who the firm of lawyers is? It has an air of familiarity to it!
August 27, 2006 at 2:57 pm #65240
Thank you both for your replies.
I don’t really like to say who the firm are. They have been good up to now and I haven’t had any complaints about them. I just wonder if I can get the deposit back without paying out so much money?
Even if I am happy with the finish in the apartment, surely this cannot excuse a missing swimming pool which is shown in a map I have and also an 8 month, and counting, delay?
August 27, 2006 at 3:04 pm #65241
Hopefully not. Just wondering why this is not also seen as a breach of contract issue with your lawyers . This is surely more difficult for the builders to have excuses for and thus easier for you to prove.
All the best
August 27, 2006 at 3:19 pm #65242
Before giving a reply you have to explain more things:
Purchase price ?
What and how much do you mean by a deposit ?
Have you carried out stage payments ? How much money ? Do you have BGs ?
What was the exact wording of the contract for the delivery date ?
Where is the property ? This is important to know what laws apply etc…
Litigation 6.000 Euros ? That’s only the start IMHO, although I’m personally not specialised in litigation it can triple that amount in a few years time because the developer appeals the court rulings and the case drags on and on. You better make absolutely sure what you are doing before litigating in Spain.
Lawyers cannot normally give a starightforward answers before reading your contract. Every contract is a world to it’s own and must be read and analysed carefully. Depending on some developers, i.e. Sofia, even If the wording of the contract is right you still have to resort to litigation so your lawyer maybe perfectly right taking litigation for granted.
However, you ought to know that your developer is obliged to compensate you under Consumers Law for not including the swimming pool.
August 27, 2006 at 3:56 pm #65245
Hello Drakan I’m glad to hear from you as I have read many of your replies on this forum.
The purchase price was 237 500 Euros and the Deposit 30% of that. The BG’s are in place. The wording for the delivery date is
…..property is to be handed 31 December 2005, unless force majeure prvents it or delays suffered by the building firm or strikes affecting the building sector arise.
The property is in Manilva
I have also just noticed that the document also states that …. changes which are deemed necessary or convenient by the Architect managing the building works may be made, provided they do not affect in a direct and essential manner the property and the building features are neither altered nor imply a quality decrease.
I think they have all angles covered, don’t you? I suppose this means that they can alter the plans so that we share a swimming pool with the block beside us.
I am still at the stage of assessing whether to cancel the contract or go forward to completion, I really don’t want to go the legal route to get the contract cancelled and it cost mega bucks or indeed I lose anyway.
August 27, 2006 at 4:21 pm #65246
Drakan you wrote;
developer is obliged to compensate you under Consumers Law for not including the swimming pool.
Just wondering how easy the Spanish Consumers Law is to uphold or might it still need legal action especially when a contract states;
changes which are deemed necessary or convenient by the Architect managing the building works may be made, provided they do not affect in a direct and essential manner the property and the building features are neither altered nor imply a quality decrease.
and a client cannot fault their actual property
Sorry to ask but Consumer Laws , although they appear to be in the interest of the purchaser , are not necessarily easy to implement and often the require threat of legal action.
Just interested to know
August 27, 2006 at 6:42 pm #65247
Your developer has breached the contract ex art 1124 of the civil code because he has delivered substatially later than what was specified. You can hold on to this.
Although there must be some clause that specifies that in case of them breaching the contract you are entitled to obtain back your moneis (stage deposit) or else complete but with some kind of compensation. If this clause exists then you could have your money back but developers will be rather adamant about it and probably litigation will be necessary to enforce it unless you reach some agreement by which you lose all or part of your deposit but that would as If it were YOU actually who were breaching the contract and not them. I’m afraid there is no easy way out.
Normally there are compensation clauses that state that for each day that goes by the developer has to pay for example 50 euros for each day they deliver the property late, providing your lawyer managed to include them in the contract which often is quite hard.
It’s ok if the contract states they can change things for legal reasons or for technical reasons but it musn’t say they can change things for economic or commercial reasons.
Not having read your contract I think litigation will have to be the way out in your case. But I must add it’s not very professional on my part to give legal advice in a case like yours without having read your contract. So far your lawyers seem to be acting professionally.
No Consumer Law it’s hard to implement and generally involves litigation but it can be used as a threat against the developer if the breach is clear. My post was just stating that they cannot include a swimming pool in the publicity and brochures and then not build it. It’s contractually binding for them If the swimming pool appears in brochures, promotional videos, computer simulations, plans, sales office with scale model of the whole development etc…
August 27, 2006 at 7:04 pm #65249
Thank you. I think I will get back to the lawyers and see if there is a clause specifying what happens if the developer breaches the contract. I will also check what they say re the pool.
August 27, 2006 at 7:40 pm #65250
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