[Anonymous]

Hi

We will be completing on an off-plan apartment in CDS in the next month. We have the option of taking over a promoter’s mortgage for the apartment. The mortgage isn’t bad but doesn’t suit our needs. We can do better with an alternative bank. Our legal advisor has told us that there is a clause in our contract that states the cancellation fee would be paid by the purchaser. However, on doing some research on this forum and talking to some people involved in property in Spain, it appears that it is against Consumer Law for the promoter to pass the cancellation fee onto the purchaser. Our legal advisor seems reluctant to address this matter and has advised that we complete and pay the cancellation charge and then bring a claim against the promoter for breach of Conusmer Law. However, knowing how things work in Spain I can’t see the court route making sense.

I thought that at closing if we refuse to pay the fee then the Notary can’t insist on us paying an illegal fee to the developer … I hope! I was wondering if stalemate then ensues what happens? On a matter of principle I would prefer to lose the apartment rather than pay this charge. However, I want to safeguard against losing our 30% deposit. Anyway I would appreciate peoples views on this and how we should proceed. I’m particularly worried about the legal aspects and the amount of protection offered to us and our deposit. Many thanks.

[Anonymous]

Where is your apartment?
Personally,I would not pay the cancellation fee. yet another rip off. 😈 Your lawyer is favouring the developer. Once you pay…you will only have a long expensive legal battle ahead of you. Call their bluff and say you will go to OMIC, to register a complaint.

The advise you are being given is SO typical of the abuse many of us are subect to from some lawyers!

[Anonymous]

Hi Claire

Many thanks for your reply. Yes, my inclination is to do what you say but I’m concerned that if a stalement insues that our deposit isn’t held indefinitely or that we lose it.

[Anonymous]

Hi it is very sad that these people cant seattle for making an honest living we are putting good money in to Spain and all we seem to get is people ripping us off, even though in law we are correct the lawyers {some may i add} only want to look after there own. 😥

[mariadecastro]

Those clauses are abusive under Consumers´regulations. Even though there are some Court Decissions (named Jurisprudencia) that state:

Decission of the Valencia Province Court. Dated 9 april 2002:

It estimates that the agreements against the Consumers Law are not abusive according to provisions 1255, 1280, 1281, 1288 y 1455 of the Spanish Civil Code, providing that it is clearly stated that agreement both in the contract and in the public deed.

But letting the developer (and/or solicitor?) know about your firm resolution of claiming or suing based on Consumers may force him to change that clause.

Best regards,

[Anonymous]

Maria, it would be nice to think we could have that impact…but I very much doubt it. 🙁 These clauses should never have been allowed in the first place. It beggars belief. A lawyer in this country would not allow their client to sign a purchase contract with such clauses in it. Because of the system in Spain ,we the purchasers are not even told about these clauses until it is too late. The only way it could stop is if we the purchasers MUST be present at the contract signing and that we have a fully translated version of the contract. That way we would know exactly what we were in for.

[mariadecastro]

Dear Claire:

It doesn´t neccesarily need to be that way. There are many lawyers in Spain with a high sense of professional uprightness.

Regarding the case: the FACUA ( Andalusian Consumers Org) is pressing charges against many firms infringing consumers regulations. That´s why I will try.

In my case with Cazybianchi that was a big threat for the developer. That´s why I would encourage to go for it. There are big fines, and consumers regulations have been recently reinforced in Andalucia. So I positively think they are being careful no to be included in the “black list”.

There are nothing to lose. It could be won in the extracourt field.

Best,

[Anonymous]

Thanks Maria. I know there are plenty of excellent lawyers in Spain ! 🙂

[Anonymous]

Many thanks Maria and everyone else for your replies. I raised this matter with our legal advisor prior to signing the contract. I couldn’t believe that we could be asked to pay a cancellation fee for a loan that we never wanted. I was told by our legal advisor that such clauses are common but I was never informed that they was contrary to consumer law. . It was only through further research that I learnt that the clause is abusive and appears to be non-recountable (despite what is in the contract). Our intention is not to pay the fee but I’m concerned that we could lose our deposit of 30% of the property value for the sake of a cancellation fee of around 1%. If the developer refuses to back down what will happen when the Notary attempts to close the transaction? Would our bank guarantee protect us against a stalemate and mean that our deposit would be returned? What are the chances of an alternative legal advisor successfully getting us out of this mess? We don’t really want to throw more money at the situation unless it makes sense.

[mariadecastro]

I would proceed this way, but, any other advise for any other legal professional is also acceptable, please note that there is not just one way to try to solve problems:

I wouldn´t take the risk to go to the Notary without trying to solve that problem first between the developer and you, with the Consumers normative in mind and the threat of going for a claim in the Consumers field.

Ask the developer to change that clause and any other in the contract, go for it, firmly. If it doesn´t work send a notharised letter to the developer before the date of completion telling him about your intention of not completing if the contract is not adapted to the Consumers regulations.

I found strong opposition to cancel the contract just allegating contractual provisions as developers play their games very well in the contractual realm, and have seen a developer very nervous and ready to compensate when I have mentioned the Consumers claim alternative.

Try!

[Anonymous]

Thanks to the many replies to my last question, we’re now putting pressure on our legal advisor to ensure we don’t have to pay a cancellation fee.

Today I heard that our apartment is unlikely to be ready by the extended completion date in our contract. The contract states that we can claim interest or withdraw if the unit is not ready by this date. I was wondering what is meant by the term ‘complete’? Is our apartment complete once the developer states that the unit is complete, snagging is complete to our satisfaction, the habitation license is issued or something else? I’m concerned that they will hurry the finishing of our apartment, which could be finished to an unacceptable standard. Alternatively, if we get no satisfaction regarding the cancellation fee for the developer’s mortgage then the delay could give us an extra bargaining tool. Appreciate any views.

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