Hi – I thought we had ‘met’ before!
Thought I would reply on your original topic regarding your Bank Guarantee. Re-reading this original posting, your situation really is so similar to ours.
We have had 3 trips out to Spain in the last 4 months, and in a nutshell, these are some of the things we have learnt:
1. As your developer is in breach of contract and has not built anything, you need to obtain a Requerimiento Notarial to make the contract null and void.
As your development has not been built (as ours wasn’t), the notary will actually go on site to take photographs to officially prove that nothing has been built.
2. This will enable you to approach the bank who issued your Bank Guarantee with the proof that the contact is null and void. Even if your Bank Guarantee is post-dated, like ours, it doesn’t matter – you can demand your money from the bank now.
3. However, here is the catch, the bank will probably fight/delay/find all excuses not to pay right away, even though you have the R.N.
Apparently these ‘delay tactics’ are common/normal. We were told that even if we waited until next September which is our Bank Guarantee’s enforcement date, the bank will more than likely still play the delay game for a month or two.
4. Therefore, there is nothing to lose by starting the procedure now to enforce the Bank Guarantee to get the return of your money plus the legal interest as stated on the BG.
5. We are lucky and have found (we hope!) a great lawyer. When we asked him what he would charge to undertake pursuing/enforcing the BG on our behalf, with all the ‘fighting’ that may be needed, he told us 1%.
In our case, that would be around 1,300 euros which – if we were going that route – we feel it would be well worth it (bearing in mind the cost of keep going out to Spain as one trip wouldn’t do it, and our Spanish language and ‘push’ etc. would not be as good as a lawyers.
6. So, my recommendation would be to get a good lawyer.
Mark the Administrator is very helpful and is worth contacting if you need help to find one, and see if he would act on your behalf to enforce your Bank Guarantee for 1%.
Hope this is of help and wish you lots of luck.
P>S> Sounds like Atlas need a rocket somewhere!