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Although criminal law is complex and behavior that you think ought to be criminal could turn out not to be, we have in our Criminal Code and in many sentences quite a lot of examples about how Spanish law deals with developers refusing to pay funds back to buyers, when they don’ t hand over houses in time.
Section 252 of the Spanish Criminal Code provides that a person who to the detriment of another misappropriates or embezzles money or all other property real or personal received in deposit, custody or administration or by another obligation of return will be punished by imprisonment of up to six years.
This section affects all developers selling off-plan and receiving monies before completion because they all are under an obligation to retain and deal with this funds in the way stated in section 1.2 of 57/1968 Act.Section 1.2
All developers who sell off-plan and receive any payment from buyers must deposit the funds into an special account separately of any other funds belonging to them. Such funds may be used only for payments linked to building costs.
By law the developer is not free to administer the funds received in relation to a development, he is a depositary and if he wishes to draw from the guarantee account must be aware of the compulsory use that is stated in Law.Even if the developer were acquitted by a criminal court it doesn’t mean he is not obligated to refund the monies since subsequently a civil court could declare the civil liability.
Our courts don’t agree about if it is sufficient in order to qualify the offence to use the funds in unrelated development costs or if it is necessary animus lucrandi or intention of profiting.
We can distinguish between misappropriation strictu sensu which implies adding the funds to the defendant personal assets and dealing with the funds detrimenting the interests of depositorsSome judgements of our Superior Court to illustrate this issue
SSTS 17 22 Oct 1998 ‘It is not required the benefit of the criminal but the economical detriment to the plaintiff’
SS. 30.11.89, 7.2 and 30.3.91, 10.2, 11.6 and 2.8.92, 16.4 and 2.11.93, 14.3 and 5.11.94, 1123/95 of 11.10, 715/96 of 18.10, 896/97 of 20.6, 955/97 of 1.7, and of 19.1.98
SS. 3-4-98, 17-10-98 and 840/2000 12-05) (STS 2-11-01 . SS. T.S. 3-04 and 17-10-1998, 12-05 and 21-07-00
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Some people think that the pendulum has swung too far in favour of the developer but in my view the prosecution still has the major advantages
In general sentencing law and practice is a vast area which is not possible to go into in any great detail here. Criminal offences and the circumstances in which they are committed vary considerably -
” In general sentencing law and practice is a vast area which is not possible to go into in any great detail here. Criminal offences and the circumstances in which they are committed vary considerably “
I, agree and this applies in every country on the planet. However in the case of Spain irrespective of the circumstances the consumer does not get the legal recourse that their case merits.
Has, anybody in Spain has kept statistics of cases going in favour of claimant/defendant in the case of construction industry. I can assure you that the “colegio de abagados ” don’t do it. Even if they did, what margin of error should we place on them and the quality of their data collection.
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shakeel wrote:All very well. Where are the enforcement of these legislations ?????[/quote:
Quite right Shakeel, Spain has the laws but they are not acted upon.
I listen to a lawyer who appears on OCI Radio, she quotes all the wonderful laws Spain has and that demolitions, land grabs etc are nothing to worry about. She goes on when buying a property one has the protection of a Bank Guarantee, a 10 year warranty against building deficiencies etc All garbage there is NO protection. With this type of mentality , from someone who one assumes has a bit of intelligence , what hope is there for the future.?
SPAIN BLAMES EVERYBODY ELSE ,the oil price, the increase in the price of food worldwide, countries undercutting Spain by having lower inflation rates, the media in the UK ETC ETC. Spain should remember the advice of a very wise man who lived about 2000 years ago
Luke 6:41 And why beholdest thou the mote that is in thy brother’s eye, but perceivest not the beam that is in thine own eye?
Luke 6:42 Either how canst thou say to thy brother, Brother, let me pull out the mote that is in thine eye, when thou thyself beholdest not the beam that is in thine own eye? Thou hypocrite, cast out first the beam out of thine own eye, and then shalt thou see clearly to pull out the mote that is in thy brother’s eye.
Matthew 7:3 And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye?
Matthew 7:4 Or how wilt thou say to thy brother, Let me pull out the mote out of thine eye; and, behold, a beam is in thine own eye?
Matthew 7:5 Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother’s eye.
Perhaps Mr Cobbler should read these verses and set Spain back on track, rather than spending time with Mme Betancourt and worrying about the environment.
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shakeel
mote = small speck.
beam = a large piece of wood.Spain sees the small fault in others while ignoring it’s own larger faults.
The fact that the bible uses the analogy of piece of wood in an eye (hard to ignore) suggests that it’s more to deflect attention of ones own faults by pointing out the faults of others.
Not my opinion you understand… just trying to help.
Quoting the good book now …. what next?
Regards
Paul
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