Hi Lindsay – sorry to read of yet another ‘mess’.
You say: “We were assured that all the guarantees/insurance was in place in case the worst was to occur, and signed up accordingly”.
I suggest this as a first step:
These guarantees are called Bank Guarantees, or in Spanish ‘Aval Bancario’. They are issued by a bank on instruction by the developer, and should be issued to each purchaser, complete with your name, address, passport number, details of property, amount guaranteed etc. Know that this is demanded by law and is a legal requirement.
Technically, when you are in possession of an Aval, the issuing bank is now responsible to pay the beneficiary (i.e. you) the amount promised on the aval should things go wrong. That is the theory and as I said, this is required by law to protect the purchaser in an off-plan situation.
Each purchaser should have (and has the legal right to have) either the original, or at least a legally-certified copy. It is your lawyer’s duty to ensure this happens.
However, in practice, many lawyers have been ‘in league’ with developers for the simple reason the developer recommends them to purchasers hence gives them loads of business. So they say a BG is in place, but it isn’t. This will save the developer having to actually log any monies with a bank or prove they are creditworthy etc. They simply can use your money to start the build, or even do a runner, plead bankrupt etc. This is why it is always advised to have an independant lawyer, not one recommended by the developer. Many of us here learnt this too late.
So my two questions are:
1) Do you have a copy of your Bank Guarantee/Aval?
2) If not, do you have it in writing from your lawyer that this guarantee is in place?
If so, demand to have a copy. If he refuses, you now have at least some grounds to start on the legal route.
Whatever happens, you must find a good independent lawyer (with some teeth/backbone) for advice on where you go from here, but chasing the Bank Guarantee as above is at least a first step.
Yes, you are right – most lawyers are reluctant to go after another lawyer, but there are some that will. Some of us here had to do just that. As this lawyer is in the Marbella area, I can recommend our lawyer if you are interested.
What is the name of the developer/development? There may be someone here who has more information on the latest situation or are in a similar position.