No opt out contract

Hi
We had a no opt out contract and the seller sold to another, resulting in 5 years of litigation up to and incuding the Supreme Court in Madrid and we have won all times.

We are in the "interesting" position that our lawyer has already settled for his legal fees with the other party. They have made a derisory offer and he says we must take it or leave it. It is impossible for us to accept it does not even cover our expenses let alone our losses. So we are advised to return to court and ask for the court to enforce the sentence. Our lawyer is not willing to do so and has made a demand for further monies from us to release the case. It amounts to around 7000+ euros in total.

Are there charges that lawyers are not able to recoup from the other party?
Also given that we pay the outstanding amount are we then entitled to receive the papers - I mean immediately?

This has also resulting in criminal charges - the initial charge was "not upkeeping the property as per the contract" (sorry I don't know the legal terminal terms - this is as it was explained to us on the day )and the Judge at that hearing advised the other party they would face a charge of fraud should the Supreme Court appeal fail.

Hope you can help,

Regards
Charlotte

Dear Madam,

Judges are not onliged to rule on to which party they award the legal fees or if both have to share them. In many cases they don't pronounce themselves on the matter.

In many cases you can win a case in a first and second ruling but the judge doesn't award the plaintiff the legal fees meaning that each side pays their own. This can occur for a number of reasons.

Please read our article on the matter:

10 Reasons Why Your Case Against a Spanish Developer May be Thrown Out of Court - 30 Sep 2008

8. Suing on excessive compensation grounds. On suing in Spain one must bear in mind that the legal system is very different from that of Case Law which exists in English-speaking countries. One of the major differences regards claiming on compensation. Unlike the United Kingdom or the US in which the judge may award you a huge compensation, this is unlikely in Spain. Therefore a lawyer must be cautious on suing, as being over ambitious can actually be counterproductive. This may imply that for example if the lawyer over requests compensation the judge can actually sentence that the plaintiff has to share in the legal expenses of the court procedure despite having won the hearing. Whereas if the plaintiff had in fact been less ambitious it would have not backfired on him and the judge may have sentenced that it is the defendant who actually has to pay for all the plaintiff’s legal expenses (lawyer and procurador). The Spanish judge has a wide margin of subjective to construe when it comes to establishing capital appreciation or depreciation of a dwelling or claiming on moral damages or damages in a broad sense.

From what I understand is that your vendor sold on your property to someone else despit your previous agreement, is that the case?

Yes we had a no opt out contract and they sold to a company the very day they were supposed to sign escrituras with us.

That the costs were awarded against the other party - I am only quoting our lawyer who has settled with the other party for 25,000 euros legal fees.

He has itemised what he is charging for - it is confusing for us that the other side can pay this and we also have to pay 7000. If this is normal is Spanish practice this is fine. We just feel we need to check.

The big question at the moment is that when we have paid this demand from our lawyer what is the procedure regarding the file - are we entitled to receive the file? And can we request it on payment?

Dear Madam,

The handing over of your client file is not subject to paying before hand the owed legal fees (7,000€). It's two different concepts.

Regarding the rest of your queries, I'm sorry, but I cannot reply as I would need to examine all the paperwork trail and the court procedure.

mmm - that is exactly the problem - we cannot give you the file and court papers to read as I cannot get them from our lawyer - that is until he is paid.
It is important that we get the file intact for many many reasons - this is not a dispute between us and our lawyer - he refuses to return to court and we need to return to court, but we do wish to ensure that we receive all documents. All I have in my possesion is a copy of the sentence and we are not sure if that is complete as it is a copy of the original hearing sentence - there have been several appeals since then including the Supreme court in Madrid.
The friend who was overseeing the criminal charge retired last year but "deposited" the paper work some months back but is not able to carry it through for obvious reasons.

What we need to know is - before we again meet with our lawyer is are we within rights to get our papers back from our lawyer so that we may finally get this thing finished with.

Our lawyer says we must accept the offer they have made as they will not pay more - but after 1 conversation they have already offered more to us! - and we are very close to ending this. But obviously we need the continuation of the court proceedings to nudge them a little further first.

There may be a further action against other parties but until this case is settled we cannot even think of those.
So you see our dilemma?

Dear Madam,

As per our prior reply without being able to examine your file it is simply not possible to give you a straight answer. I know it's a catch-22 for you, but I cannot pass a legal opinion on a matter I haven't even examined.

I believe you should address your queries to the Bar Association of which your lawyer is a member of. They can act in a dispute between both parties and clarify the above issues for you.

Another point that your lawyer must have clarified is that Spain's Supreme Court is the last ruling on the matter. Unless you want to take the matter to Strasbourg Court on appeal.

You can no longer "return to the court" in Spain. The matter is over now if it's gone through Spain's Supreme Court, a process which takes on average 6-8 yaers and of which less than 5% of the appeals are accepted. Besides the amount claimed must be above 150,000€. Are you sure your lawyer's appeal was accepted and ruled by the Supreme Court?

I have obviously not explained myself adequately - we are not appealing - we have won every case heard - From the Supreme Court - it was ratified back to our local court as the amount was close to 150,00 and therefore the OTHER PARTY'S 3rd appeal was rejected. They are not offering adequate recompense and we need to return to court to ask the court to enforce the sentence.

Our lawyer has settled with the other party for his legal fees and does not wish to return to court - we however are happy to ask the court to enforce the sentence and are happy to accept their ruling on the matter. The amount offered is totally inadeqaute - we do not think it even covers our expenses! and coincidently an offer they made 5 years ago that our lawyer himself recommended we reject. He says they will not pay more - however one conversation independantly of the lawyer has garnered an offer of 10,000 euros more - they are not a mile away and I am very sure this offer will increase especially when the criminal charge in hand is to be heard - there has already been one hearing 3 years agio and they were charged with "not upkeeping the land as per contract" and the Judge at that hearing told them they will be charged with fraud should their appeal fail. Which it has.

We are not in dispute (as far as I know) with our lawyer nor do we wish to be so - but it is necessary for us to return to court and he will not - for his own reasons. He has given us a final acccounting and we wished to know if this is correct procedure - as he has already recovered his fees from the other party and that if it is and we pay the amount it will enable us to recover the papers so that we may proceed with a new lawyer. Also that if we paid are we able to take the files with us??

There are obviously a book of other information but we are unable to proceed further until we obtain release from this lawyer.

Still hoping you can help - Many Thanks

Dear Madam,

Following your last email, your lawyer should be able enforce the last court ruling (the Second ruling). I have no idea why he doesn't wish to pursue this.

Maybe he has good reasons which I'm totally unaware of as I have no access to your file not to the court proceedings that have been followed.

If you pay the requestd amounts by him, of course you are entitled to take your full client file.

I'm sorry, we are unable to assist you further on your matter. We do not take on cases that have already been filed by another colleague.

Many Many Thanks for the information

You're welcome Madam.

Regards,