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Hi,
I’m looking for some guidance from one of our resident lawyers here on this forum…
In October 2003 we placed a deposit on an off-plan apartment in Santa Maria Green Hills (Lower Blocks). This year (2006) after requesting a copy of our Bank Gurantee several times I eventually e-mailed my lawyer absolutely insisting that he provide me with a copy. In reply he sent me a document that turned out to be the overall insurance policy between the Bank and the developers. I pointed this out to him and once again requested a copy of our BG. He replied that he was unable to provide this because the developers had not given it to him yet! And this is 2 years after signing the purchase contract for our apartment :evil:. He never mentioned this problem to us and had deliberately tried to mislead us by providing a bogus document. I have requested that he refunds the fees that we have already paid him (0.5% of the purchase price + tax) but he has failed to respond to this request.
My questions are:
As he has failed to act in our best interests would we stand any chance of receiving some kind of compensation from him? Am I within my rights to demand that he returns the fees that we have already paid him?
What happens if the developer now goes bankrupt? Would we stand any chance of getting our money back?
Should I report him to the Colegio De Abogados…?
Best regards,
Greenhill
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Hi,
Have you tried asking the lawyer of MVG to give you a BG? You are entitled to it and to ask for it (in the event that your Lawyer has not!).
Has your lawyer asked MVG for one recently? If so what was the outcome?
I would certainly report your lawyer to the Collegio de Abogados. As a general rule, I don’t think other lawyers would tell you to take this route as it is ” shopping ” their own, but I’m sure they can give you some advice. They are not keen to get involved, which is understandable. This has been our experience anyway. As you know, this is the course of action that we are having to take with our first firm of lawyers. We are doing one thing at a time though. The priority being to get our 30% deposit money refunded via the BG & Court. Then we will deal with DLM. We paid them 7,000euros, which they have also kept!! Our second lawyer has not answered the five emails we have sent them requesting that the original purchase contract , our wills and the other documents they have be forwarded to our current lawyer.( the only one who has actually done anything!) I find the whole scenario mind blowing.
I try not to think about it too much now as it is so stressful.I hope Drakan or Cesar can give you some words of encouragement.
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First of all, the bank guarantee is part of your contract and the developers not supplying you with one are acting against the law. They can face serious penalties if you take it to court and criminal charges. (see Art 6 of Ley 57/1968, 27 de JULIO).
Second, your lawyer will most certainly not be inclined to answer your calls. What is there to answer? If I were you I would jump on the plane and appear in his office first thing Monday morning.
Say to him/her that unless he refunds you all fees you are heading straight to the Colegio of Abogados and the police!
Follow the same with MVG & Eralia. Threaten them that you will sue them and that you will also go to the police.
But in my opinion you will also need the assistance of a good litigation lawyer.
Anyway, the way things are going in Marbella, I am sure that these characters will not want to be in the visiting list of the Police!!!!
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Hi,
Thank you very much for your responses. I did email the developer’s lawyer and ask for our BG. I have inserted my original mail and his reply below….
Dear Mr. xxxxx
The construccion is just finished and your money have been deposit in the special account of the promotion. Your money is now granted by the construccion. Best regards.
Lawyer.
Original Message
From: xxxxx
To:
Sent: Thursday, March 16, 2006 1:37 AM
Subject: Santa Maria Green HillsDear ,
I have just been informed by our lawyer (Sr xxxxx) that he has not yet received our bank guarantee for the purchase of this apartment. He told me that he has asked for it on several occasions but Marbella Vista Golf have not given it to him.
I have phoned the Banco Popular Hipotecario today and the customer services department searched for a record of our bank guarantee. They were NOT able to find it.
Could you please explain why, after almost 2 years, my lawyer has still not been provided with a copy of the bank guarantee ?
Could you also tell me when he can expect to receive a copy of our Bank Guarantee?
Could you also tell me why the B.P.H have no record of our bank guarantee?As you may understand, I am extremely worried about this situation and look forward to your prompt reply,
Best regards,
You will notice that that he says the contruction is complete now. We have not had any communication from the developers relating to this or anything else for that matter…. 😕
We are visiting Marbella very shortly. We will make a point of paying our ex-lawyer and MVG a visit and will let you know how we get on.
Best regards,
Greenhill
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Green Hill,
How typically arrogant is that reply!! 😈 That sums up the contemptuous way we have ALL been treated by this company. 😈 😈 He has not had the decency to reply to even ONE of your questions.
The authorities in Spain have come down on the president of Aifos. MVG & Eralia should definitely be next on their list.
For those of you who use the forum, you may now understand why myself,* Charlie *& Sofia* have been so vocal about our dealings with this company…and “passionate” about how badly so many of us are treated by these and other developers.
In our * cases where they have not even built the apartments and they have had our money for 2 1/2 years, (to date,) even when Charlie & Sofia asked this lawyer, face to face for their money back he just …No, we can’t do that… end of story! 👿 They say wait for the guarantee That is over 3 years they will have had our money…for diddly squat!!
I think the message we should get accross to “Joe Public” is…..NEVER NEVER BUY OFF PLAN IN SPAIN.
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I may tell you I have reviewed this issue lately after a phone conversation with Mark regarding his last published column, to be sincere I had to review the 57/1968 Law, I wasn’t very familiar with it as here (Asturias) providing a BG in off plan purchases is not as common as It should be. Most of times the builder would use a simple insurance policy, something, by the way, allowed in that 57/1968 Law, and will only provide you a BG if you specifically ask for it. (but by your E-mail I guess the policy you were shown doesn’t cover the deposits made by purchasers)
The BG or insurance guaranties wont end till the builder gives you your house and he provides the LFO. This documents must be attached to the contracts and the money has always to be deposited in special accounts that can be only used in the related promotion. I may add that the rights granted to consumers by this law are considered non-renounceable
The sentence saying your money is now granted by the construction may be true but legally speaking is pure crap
Initial consequences ruled in this law to promoters/builders who fail to provide this guaranties have been revoked by the 1995 Spanish Criminal Code and 1999 LOE or General Building Act. Now, Everyone failing to provide the BG or insurance may be imposed fines up to the 25% of the non-assured amounts (LOE) also, if they don’t give you your house and fail to refund your money they could be sentenced from one to six years of prison (this may sound simple but it’s not… you have to prove they used the money for other purposes)
About your lawyer… if you think he has ‘let you down’, and as for what you are describing I wont deny it, yes, go to his Bar Association (Colegio) and report him. Keeping brutally sincere you will find very, very, very difficult to meet a lawyer willing to sue a colleague (I do directly admit I personally wouldn’t) but every Colegio has a special procedure for this cases with lawyers appointed to do this work. Additionally we do have our insurance policies (I’ve never had a claiming demand in my 12 year professional live as a practitioner but I keep my 650.000 € yearly insurance up to date 8) )
Cesar
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Greenhill – re. the reply from V.S., lawyer for the developer.
I suggest you reply to him and ask what guarantees could you possibly have on the construction, as his company has a mortgage/loan on every single apartment in the development.
In a time of ‘crisis’ – who would get any money? The lending bank or yourself????
I don’t need to answer that question for you.
I have a copy of the ‘nota simple’ which shows the mortgage, can send you a copy if you want. Tell V. you have a copy.Also, as the buildings are sitting illegally until the suspended building licence is sorted out by the Junta (it is one of the 208 licences the Junta have got their teeth into) – YOU HAVE NO GUARANTEE WHATSOEVER.
Supplying you with a Bank Guarantee is a legal obligation, it is written in your contract.
See what Victor has to say about the above.
I have personally dealt with the man and unless you push hard, nothing happens……and then, not a lot!Sofia
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Hi,
Utilising the legal information provided by Cesar and Charlie I have now sent tough e-mails to VS and my ex lawyer. I even went so far as to tell VS to stop patronising me! Oh if only I could get my hands on him…. 😈
Thank you all very much for your advice, support, information and recommendations. It is very much appreciated
Best regards,
Greenhill
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Hi everyone,
Just a quick update to let you know that my ex-lawyer has now returned all of the fees that we had paid to him in advance in 2003. 😀 The money is now sitting in our new lawyers account… he says it is the first case where the lawyer has refunded the fees in this way.
If it wasn’t for your collective advice and support we probably wouldn’t have received this.
Thank you all very much.
Best regards,
Greenhill
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OK Green Hill, talk me through this. 🙂 What did you threaten them with?
Having been told three weeks ago by an employee of Direct Lawyers Marbella that our original purchase contract had been sent to our second lawyer last October, at my husbands insistence, we find out today , after requesting that they look again, that they still have our contract. 🙄 Our present lawyer asked for this to be forwarded to him, but DLM said they could not do this as they had no funds of ours.!!!!! 😯 They seem to have overlooked the 7,000euros they have had for…..signing a *@~* useless contract . 😈 😈 😈 😈
We intend to get most of this refunded..through yet another legal wrangle!!!
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Have just found this forum, and realise we are not alone! We too purchased off plan back in Oct 2003, and have struggled with our lawyers for our refund. Our bank guarantee was issued 18 months late, and was executable this August. We have now been told they have our full refund in the form of a cheque, (minus any interest, obviously). We do not as yet hold a Spanish bank account as the lawyers led us to believe that the monies will be paid electronically, as they were sent. I have been told they could not send the money direct, because of legal reasons when cancelling the contract. Our cancelling the contract and them refunding had to be simultaniously. Is this another fob off? Why should we incur bank charges for sending our own money back!
HELP please!Lawyer just seems to be on side of developer, and when I said how convenient that the refund comes a short time from when the BG could be envoked, and that we may wait until then for our (supposed promised) interest, he got rather shirty and said it had now been cancelled. Really cant see why the cheque cannot be cancelled and money sent direct!
Thanks, and here’s hoping others refunds are on the way!
Jo
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