It is not unusual for the build up of a property fiasco to start like this:

… at a glittering awards ceremony held at the London Marriot in Grosvenor Square on Friday 4th of November, The Harrial Group representing the Las Torrentas Development won the best architecture (Whole Development) in the Bentley International Property Awards- the world’s biggest and most important property event”

From: http://www.lastorrentas.com/

It then gathers momentum with abundant advertorial news articles where the development receives the highest praises for being the best of its kind…on the drawing board.

The proponents of Las Torrentas, a 150 home development in the Spanish countryside town of Calasparra, The Harrial Group S.L. were directors Linda and Andrew Jones, a couple from Abergavenny, South Wales. And so excited they were that they convinced the mayor of this small agricultural town, if persuasion was at all required, to meet Abergavenny Town Council with a view to establishing a new twinning relationship between the Spanish and Welsh towns.

And then the Jones’, in a fit of hysterical excitement probably fuelled by the sums of unsecured deposits that were being transferred to their accounts by trusting purchasers, and the underserved and silly Bentley award, got confident and wrote a letter stating, among other things, that “about 15 years ago, when my husband Andrew and I started investing in property, we were shocked by the low standards of some developers”

Well, 15 years on, shocked-turned-shocking Andrew and Linda Jones have done a runner with other people’s money and are keeping a low profile, hiding presumably in Abergavenny.

Due diligence carried out on the development reveals the following:

1. The Harrial Group Spain S.L. never had planning permission on the plot(s), and yet they confirmed that completion would take place on the first six months of 2008. On the 6^th of May 2006 a public announcement on the official local gazette declared a period of 30 days for submission of allegations in respect of the proposed Las Torrentas project, indicating that once this stage is over, a report on ecological impact assessment will be drawn up with a view to determine the convenience of approving the project and if positive, the conditions under which it is to be carried out. The project has now been indefinitely shelved.
2. The Harrial Group Spain S.L. never provided bank guarantees to their customers. Clearly, when the funds were taken by the developer, he knew or should or could have known that the probability of the project stalling was very high, and yet chose to exchange contracts, request payment and fail to provide a bank guarantee.
3. The Harrial Group Spain S.L. has never filed company accounts with the Companies House (Alicante), since it was first created (!), which is indicative of business malpractice and lack of activity.
4. The Harrial Group Spain S.L. entry with the Companies House has been cancelled due to not having submitted tax returns, with date 19/07/201, which is indicative of business malpractice and lack of activity.
5. Press and media: What dealings did the Jones’ have with the Calasparra Town Hall are unknown, but a payment of €160,000 was made so that they would reclassify enough land to build 150 villas in an area considered of high ecological value  given the presence of river rats, partridges and other animals as well as local agricultural land.
6. And what about the development plot? All we have found is half acre of arable land suitable for…rice-growing.

Conclusions to be drawn from this:

• The Jones’, infamously advised by local lawyers, have misappropriated others peoples monies and could face prison terms in application of current jurisprudence where a property developer has not guaranteed the down payment nor has offered a refund.
• Stay well away from Bentley International Property Awards awardees, just in case.
• Always have a disclaimer opportunistically stating that “we do not hold responsibility for any errors and we cannot be held reliable directly or indirectly for any loss whatsoever”. You can then add, for full protection, something along the lines of “we are entitled to take your monies and run, and shall not be held responsible for not looking back”.

Try to guess what is it that the following have in common: an electrical company from Alicante, a cement subcontractor from Valencia, a real estate company from the Balearics, the Spanish Inland Revenue, the Spanish Social Security, 6 banks and 65 employees (2 of which guard an empty plot), on the one side, and 150 consumers that were hoping to acquire Spanish off-plan property on the other.

You guessed right: they are all registered with the courts on occasion of a voluntary company administration arrangement of a large Alicante-based property developer, San José Construcciones, hoping to perhaps get paid some money back over the course of a number of years.

The above scenario, however normal it may appear to be these days, hides a fundamental legal flaw that brings into question, once again, a legal system that has routinely failed to protect those who deserved the utmost protection: consumers.

Such flaw can be inferred from the controversial fact that the first group of creditors are hoping to get paid with the monies of the second group, the buyers, who should have had their deposits bank-guaranteed or insured pursuant to a Franco time law, the Ley 1968/57 Act, that was specifically enacted to avoid the situation they are now in.

In this case-study the irony (or irritation) is that BBVA, the second Spanish bank in size, is queuing up to try to grab a chunk of the money they are supposed to have been guaranteeing in the first place, since they provided a collective bank guarantee to underwrite deposits on a 120-unit development, deposits on which they profited handsomely for the developer’s mortgage and various commissions were being paid out of these. Crazily enough, this bank will only agree to “voluntarily” comply with its mandatory obligation after some arm-twisting, which involves lawyers and legal action.

Another surprising aspect of this all is the fact that criminal case-law states that no developer can use consumers’ down payments for anything else but building the contractually agreed property, and this excludes real estate commissions, admin staff salaries, pocket money…etc. As there is not one brick on the plot, helping consumers get their monies back should be a priority of any property developer, particularly where many lawyers have found that the criminal route can render results (many developers are serving prison terms for this), not the least where the developer has broken the law so blatantly.

Financially ailing developers are probably too traumatized by what has happened and can only hope the market will recover one day (and that lawyers will not press too hard). On the contrary banks shirking their legal, and ethical, responsibilities towards trusting property buyers (Spanish and foreign alike) has to now come to an end, particularly where abundant bank-guarantee case law is invariably favouring consumers and banks are seemingly getting unlimited funding from the Spanish State.

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Adaptation of the post originally written for the Olive Press – The Banks Are to Blame.

Since getting involved in legal action pertaining to unfinished-or-never-started-developments (e.g. by Ochando S.A., Promociones Eurohouse S.L. and Grupo San José Construcciones e Inversiones S.A.), one thing that I have found rather incomprehensible, from the perspective of a law firm actively pursuing the return of off-plan deposits, which should have been placed “in escrow” or backed by a bank guarantee, is the inconsistent and conflicting information on points of law that is being circulated by all manner of participants (lawyers, developers, group actions, banks, internet forums etc.).

But aside from the many interpretations, one can give to whether a credit should be ordinary, privileged or none at all, within the receivership/insolvency proceedings, or whether you should have terminated your contract on, before or after the developer did some or other action through the mercantile courts (all of which baffles me significantly), or that you are, or aren’t, or perhaps may be entitled to 40, 50 or 60% of your deposit in a number of years to come, what is clear to me is one thing: a consumer’s deposit for a property in, say, La Fortuna Golf is not and never to be used to pay for a topographical surveyor’s outstanding invoice on, say, Residencial San Pedro del Pinatar, looking after the salary of some night guard at Residencial San Pedro or more annoyingly, a plumber to fix some piping problem at the mansion of a company director.

Property developing companies have two options when handling off-plan buyers’ deposits: either keeping them in safe custody and not use them save for the needs of the specific development, and if not used return them fully, or provide a bank guarantee: there are no more options. Dragging bona fide consumers through a receivership procedure alongside electrical suppliers, cement subcontractors, real estate agents, the Spanish Social Security or the Spanish Inland Revenue seems not the right thing to do, particularly where it is the deposits of off-plan buyers who are earmarked to satisfy the debt of all others, related or not to the development in question.

Current case law does not envisage any other use for those funds, certainly not have them used for purposes not allowed to by law. Which means that these developers should be, in my opinion, encouraging, guiding and assisting off-plan property buyers in cashing bank guarantees to precisely avoid the aggravation of their already difficult situation, i.e. the transformation of these civil disputes (contractual default) to an action for criminal swindle and misappropriation, which entails serving time, particularly on those developments where nothing has been built (on others with a certain percentage built, advice would have to be on a case-by-case basis).

The Provincial Audience in Cordoba recently passed an interesting sentence in a dispute between an off-plan property purchaser and a developer, on account of the inability of the former to complete the purchase due to lack of financing and the unwillingness of the latter to refund the deposit, on those grounds.

The buyer had argued that he was a victim of the financial crisis and requested a full refund, considering the downturn of the economy as an Act of God. The developer, in turn, counter-sued and requested that the contract was complied with (specific performance suit) and, only in the event that the buyer was declared unable to complete, due to insolvency, the contract was terminated and the deposit kept.

The courts started stating some general observations, applicable to most contracts, whereby:

1. It is a well-known fact the property buyers require financing to complete property deals.
2. Prior to entering into an off-plan property contract, buyers have a duty to establish their credit-worthiness and the financial means available to them.
3. Obtaining financing from a lender, where the balance of the price is not readily available, is a buyer’s obligation.
4. To the extent that the buyer is able to complete, the courts will not examine the required diligence in the buyer’s activities or actions in respect to compliance with his obligations.
5. As a consequence, in the event of the buyer’s insolvency, he still has an obligation to complete the sale and should this not occur, the developer will be entitled to formally terminate the contract (which is exactly what happened here).

But then, in a solomonic ruling, established that indeed the crisis could be considered as a mitigating factor, and upheld the following considerations:

1. That penalty clauses are envisaged by parties as a means to fix the value of the loss, in case of full or deliberate contractual default.
2. That in this economic day and age, the financial cataclysm that has affected lenders and the drastic downturn of the property market are events that property developers cannot stand aloof from, even if they can be considered to be “risks of the trade”.
3. That although in this case the buyer is the victims of the debacle, property developers are well aware that it is now no longer possible to find a buyer at year 2007 prices, and thus cannot stay in “limbo”, estranged from reality.
4. That in this case, the buyer did not default fully but partially, as a result of events outside of their control, and therefore the penalty clause has to be reduced as a result of the necessary sweetening  or mitigation of the degree of default, to avoid unjust enrichment.

The Cordoba courts, on account of the above considerations established that, notwithstanding the content of the penalty clause, it was fair and equitable to reduce it by 50% as the buyer had not fully defaulted. 

It sometimes happens that, when you start off a new business venture where reputation is considered to be crucial, you need to start off with a slate cleaner than clean. Of course, it is quite possible that one has left a few debts unpaid, particularly with lending entities (who cares, really!) and perhaps a bit of social security or taxes, as they are the last to the get paid, generally.

What is just defies prudency and common sense is starting off a business consisting on sorting out other people’s real estate problems when you have a few skeletons in the cupboard that are rattling like a dildo in a biscuit tin.

Because, this is exactly what is happening with Restructuring & Recovery Consulting Group, fronted by Mark Farber. The story (PDF)(the real one might I say) is actually one that he has twisted to make it one of his case histories, the truth being far from what he claims it to be.

Indeed, the project was located in Inland Andalusia, in Casarabonela to be accurate, it was certainly close to 20 hectares, and changes in regional planning laws did render the project unacceptable (no mention of the crisis here nor running out of cash). And this is as far you can stretch the truth, as the rest is a load of imaginative B.S.

Not only was there no proper project in place, but also, nobody proceeded to immediately discuss the situation with local and regional planning authorities, and no agreement was reached that re-zoning would be acceptable if the project was repositioned as a tourist oriented resort rather than a straight residencial developement.

And, on top of the pile, you get the worst lie of all: a large amount of money was also owed to a local savings bank which had already begun the process of recovery. Mark, it is Lawbird’s clients who are owed the money, and they are a British couple and not a local savings bank, unless they have morphed into some rural lender in the last couple of weeks. And they are owed close to €1,300,000 which seems they will never get if, as your lawyers say, the company that owns the cortijo (Rural Excellence S.L.) will be swallowed by the bankrupt Ecur Constructora Urbanizadora S.L., which owns I assume also part of Restructuring & Recovery Consulting Group, given your statements.

And finally, you have not been instrumental in negotiating with the savings bank to refinance the debt, because there is no such thing. If any, you have been instrumental in keeping my clients like a mushroom, in the dark and being fed bullshit. And unpaid. Oh, and also, killing a good number of avocado trees by failing to water them…

See you in court!

Today I’m going to talk about a case that, without a hint of doubt, will trigger someone into spewing the type of nonsense “that Spanish judges will favour Spanish nationals at the expense of the poor Brits, major investors in Spain and yet victims of a judicial system clearly biased, racist, etc.”

Well, the case is being heard in Tenerife where they also use the word “guiris” (the nick given to any foreigner originally from above the parallel running across central France and typically blonder than Spaniards), but where they have coined an equally derogatory name for mainland Spaniards: “godos”, which derives from “visigodos”, or Visigoths, post-Roman inhabitants of Spain and who originally came from Germany and Scandinavia and supposedly, invaded them many centuries ago.

So going to the “legals” of the case itself, I will mention that it involves the following:

• A deceased British property owner resident and re-married in Spain.
• Children from both marriages, 2 from the first, both British nationals, and a further Spanish national from the last.
• The existence of a Spanish will leaving everything to the Spanish son.
• The absence of property in the United Kingdom but the existence of a few real estate units in Tenerife, under his name.
• And a Spanish widower unwilling to share the estate…

Our clients, both British citizens and children of the deceased, from a previous marriage, and who had been left out of an inheritance they claimed they were entitled to, hired us to study the case and bring an action for the judicial recognition of their right to the estate of their late father.

In application of Spanish laws, but most importantly, pursuant to the findings of a Spanish Supreme Court ruling, it so happened that they had an entitlement, given that, although testators in England enjoy a basic freedom of testamentary disposition (under certain constraints), Spanish inheritance laws stipulate that a “legitim”, or minimum  portion of the estate, should go to the children where the testator was

1. British and
2. had no assets in Spain, due to a complex application of conflict or law rules that involved bouncing the matter to and fro between Spain and England.

Under Spanish provisions, one third should be going equally to all 3 children, and therefore our clients would be entitled, on paper, to 2/3 on 1/3, which works out at 1/9 each. And whereas the deceased’s Spanish widower opposed to sharing, her lawyer saw it convenient to settle with the above figures in mind, be means of a cash payoff.

Their proposal, not negligible given the size of the estate, was argued against on the basis of what was we thought is a sound theory: that the testator had left out his British children on the basis of what he thought right and lawful, under his personal law, but that had he known that Spanish laws also protected his British children in the event of dying in Spain, as a resident and holding only Spanish property, he would have wanted his estate to be bequeathed in equally shares.

And this is the direction of our petition, that they inherit 1/3 each, failing which we will still settle for the lesser portion of 1/9 each. And what about the risk of not settling? Since we filed a “cascade claim”, having the first petition for the higher portion dismissed (and the second accepted), would almost necessarily mean that legal costs would not be awarded: still worth the try I would say!

And what about the ethnically discerning judge? If he is Canarian, he will surely have nightmarish nights trying to choose between a half-Scottish half-Spanish defendant, the latter half originally from Germanic and Scandinavian lands, according to Canarians, and 2 half-Scottish half-Irish claimants, the first half also with substantial “Norsemen” blood, who are the Germanic people who inhabited Scandinavia in the Middle Ages which means that, by reference to blood lineage, we have solved the Judge’s tribal dilemma by boiling it down to a pure dispute between Scandis. Init Your Honour?

The title is very unsettling and surely, libel action material by anyone’s standards. But sadly, it is exactly what is being done by Inmobiliaria Peñarroya, developer for La Reserva de Marbella, to uphold the legality of these properties in courts.

The story, in short, involves licenses of first occupancy issued by administrative silence that were granted, supposedly and according to Peñarroya, for a number of buildings completed at La Reserva de Marbella. These licenses were granted by Leopoldo Barrantes Conde, currently indicted in the Malaya Operation, on behalf of the Marbella Town Hall, and the certificates are there to prove it.

However, my colleague Luis got suspicious because these certificates lacked the classic stamp issued by the documentation registrar of any Town Hall to evidence the date of notification of the administrative act. So we wrote to the Town Hall to enquire whether these certificates were actually part of the file stored with the Planning Department ,and, to our surprise, we were advised they were not, there is simply no trace of the original document supporting the photocopies in file.

The seriousness of this situation is shocking: already, the Supreme Court has ruled in favour of the developer on the basis of these fraudulent ghost licenses, perpetuating this deliberate legal anomaly based on fake official document.

Mr. Barrantes issued the licenses on the 16^th of December 2005 and was arrested on the 29^th of March 2006.

In our opinion, one of the following has happened:

1. The documents have been drawn up for the occasion, using Photo Shop or another less sophisticated method, leaving the registrar stamp out.
2. The documents were, at some point, officially issued by the Town Hall but the originals were removed by someone, either before or after the arrest of Mr. Barrantes.
3. The originals existed but have been carelessly lost, or inadvertently misplaced…

Whichever the case, the use of the documents by La Reserva de Marbella constitutes “procedural swindle” (estafa procesal), an action entailing deliberately deceiving a Judge or court into issuing a ruling that would have not been otherwise reached.

Documents

• 2011-07-la-reserva-de-marbella-fake-lfo-town-hall-information-request (PDF)
• 2011-07-la-reserva-de-marbella-fake-lfo-town-hall-reply (PDF)

Mr. Macanthony is waiving the banner of victory and some calculated dose of persecution mania since knowing that the “Audiencia Nacional” has chosen to defer the criminal complaint filed for swindle and misappropriation to the Courts in Marbella. Alas, he has conveniently omitted the fact that the Courts have not made any comment on the claim itself other that stating that this likely criminal activity is to be heard elsewhere.

The Audiencia Nacional has taken the route of stating that the “possible” swindle and misappropriation is not in a massive scale that could affect the normal performance of the Spanish economy, and thus determines that it should be the Marbella Courts who should deal with this matter.

Our choice of the Audinecia Nacional was based on the multiplicity of points of contact which involved several jurisdictions, including a 90-year-old Peruvian-domiciled yet Madrid-based Spanish former civil-war combatant who was the director of choice for Mr. Macanthony’s companies, claimants from different countries and defendants equally based abroad.

From a substantive-law point of view, the same rules apply whether it is the Audiencia Nacional or the Court of Instance. From a procedural point of view there will be variations.

As a result of this rather inconvenient criminal complaint, Mr. Macanthony has clearly taken a personal distaste for me and has reserved his best and most emotive words for the undersigned: ambulance-chaser, small-time lawyer, non-real lawyer and rather insultingly and defamatory, the concocting of a twisted story whereby I had approached his representative in Marbella, asking for money in exchange for dropping the case by spuriously persuading my clients that there was no such case to be had (when the reality is that two lawyers in our firm had been approached by him, on instructions of Macanthony, proposing that we became his new Spanish representative, with an offer of a blank check; This man failed to mention whether it was a Euro or Soles-denominated check, the Peruvian currency).

Claimants have requested from the Courts that Mr. Macanthony answers the following:

1. Where is the money paid by 51 of his former clients for furniture packs?
2. Why did he alternate company directors, choosing an insolvent 90-year old man, Fernando De Arespacochaga Alcalá del Olmo, living in Lima, Perú, to front a company acting as a director for his dying companies?
3. Why did he re-domicile his companies to a non-descript office in Madrid that serves as a cemetery for creditor-dodging companies?
4. Why did lucid Mr. Arespacochaga appoint in March 2005, November 2005, December 2006 and December 2009 four different company directors, all of which now deny knowing what were their roles?
5. Why did he disappear from Spain and not file for insolvency? (reputation perhaps?)
6. Why is he the subject of a forum with over one thousand members with an axe to grind? (this I think he has answered…).

On the subject of Spanish litigation, in my experience, there seems to be quite a bit of confusion in respect of several aspects related to the way justice works in Spain, such as how long court cases take, what sort of costs you expect to face, etc. I have found some interesting statistics which I will sum up in a few bullet points below.

• Duration of court cases According to a report issued by the supervisor for the judiciary (CGPJ), courts issued rulings in the following average time:
  • Civil cases: 7.7 months
  • Civil appeal cases: 4.9 months
  • Divorce mutually consented: 1-3 months
  • Administrative cases: around 15 months

• Number of court cases in a year In all of Spain, last year  just over 9 million court cases were filed, around the same amount were finalized and just over 1.6 million rulings were passed. Andalusia is the most belligerent regional community in 2010, with 230 court cases per 1.000 inhabitants. The least is La Rioja, with 136, no doubt the wine would have something to do with it!

• Compensation granted for courts responsibility for defective operation in 2010, approximately €5 million were awarded in compensation for defective or dysfunctional dispensation of justice.

• Number of complaints In 2010, a total 16,650 complaints were lodged in relation to the dispensation of justice. Of these, 200 complaints were received in the Law Societies.

• Money lodged within court bank accounts At the end of 2010, Banesto bank (the officially appointed by Spanish courts) had a balance in its accounts of €3.3 billion. I have a client with 1.4 million sitting there since June last year.

• Number of Prison Inmates In 2010 75,000 people were confined in Spanish prisons. Of these, 35% were foreign.

Average Length of Court Cases in Spain in 2010

A note on the Cost of Justice in Spain

Firstly, justice is free in Spain as such, as court action does not cost money, except for a symbolic deposit and a higher sum when you go to the Supreme Court.

It is the lawyers that make up for the costs, and this is what we would call Court costs in Spain. Many people believe that when you lose a case, you have to pay the other parties lawyers’ fees to be calculated depending on the hours of work of the lawyer, the professional prestige of the lawyer in question, what other costs these lawyers may engage when litigating (private investigators, detectives, technical reports etc.), so that in the end, these are often far beyond the actually monetary worth of a case. However, in Spain the Law Societies stipulates what sort of costs are to be awarded, on the basis of a number of rules which, generally, are based on the value of the claim.

My client has had a narrow escape: having been notified in early March by the courts that his property was to be auctioned by Danske Bank, at 11:00h of the 8^th of June 2011, we managed to obtain from the same court a ruling suspending the auction exactly…24 hours before (just like that one last call from the Alabama Governor…)

And prior to this, on the 27^th of May 2011, that is, just a few days before the auction, we are advised, through the courts (Document in PDF), that, unbeknownst to him, my client did indeed have €126,946.64 with Danske Bank, in some account in Luxembourg, which is what he had been wiring to them, over the years, to attempt to placate them and avoid being kicked out of his retirement home bought with his life-savings. One can only imagine the topnotch service Danske bank provided my client once they had abandoned Spain, not before trying to repossess a few homes in its wake. Danske Bank had all but forgotten about this money until the very end, and they have the cheek to say that the debtor had paid up this sum when, as a matter of fact, it had been blocked for years.

So if it was not enough stress, we added that extra bit to it by, unwillingly, choosing the latest of the possible dates (other than tomorrow) to set aside the sale at public auction instigated by Danske Bank against a 73 year-old retired mariner victim of an equity-release, who had been conned into believing that, by going with the biggest Bank in Denmark and contracting what is effectively a tax-evading financial product on his unencumbered retirement home, he would have a monthly payment coming his way, pretty much all the inheritance tax his daughters would be hit with waived or wiped out and all of it, without risking anything (apart from his home, his health and, potentially, his two beautiful daughters’ freedom, as they would have been eligible for prison sentences to be served at Alhaurin prison, 10 minutes’ drive from the foreclosed home, had they followed Danske Bank’s careful tax planning).

The Judge had no choice but to suspend the auction as, alongside these foreclosure proceedings claiming approximately €845,000 (which is what Danske Bank’s clever and optimized investing has lost, or rather, in my opinion, allegedly misappropriated), a criminal complaint had been lodged in Mijas against CEO Peter Staarup and his sales guys once based on the Costa del Sol, including an unregulated IFA hired by the bank.

These are some the promises made by Danske Bank on its prospectus:

• Exempt from Spanish Inheritance Tax : if the beneficiaries, on the death of the insured, are not residents in Spain, the capital will not be liable to Spanish inheritance tax.
• Investment Strategy: CAUTIOUS

If this is what the HMRC thinks about tax-avoidance schemes, what would they say about the Danske Bank Tax-Evasion Capital Assurance product?

Documents

• 21-03-2011 – Danske Bank Equity Release Lawbird Client Case – Auction Notice (PDF – 70Kb)
• 07-06-2011 – Danske Bank Equity Release Lawbird Client Case – Auction Judge Suspension Order (PDF – 72Kb)