Search:     Go  
The Spanish Lawyer Online
The Spanish Lawyer Online
+ Reply to Thread
Results 1 to 4 of 4

Thread: Judge has granted cancellation but I have not received money back

  1. #1
    Junior Member
    Join Date
    Sep 2010
    Posts
    2

    Default Judge has granted cancellation but I have not received money back

    Hi, I asked a question on this website the other day but have had no response yet.

    I entered into a contract to buy an off plan property on the Costa Del Sol many years ago. There was some problems with the development (developer was caught up in a money laundering case I believe - white whale case) so the judge on the case ruled that I was allowed to cancel my contract and get my deposit back. This was over four years ago and I still have not had my money returned as the developer has no liquid funds. I have been told that the developer is now close to bankruptcy so I would need to put a claim on his assets in the courts as a creditor should this happen in order to have any chance of getting some of the money refunded. There is also an angle with the bank guarantees as although the properties were built some time ago some of the correct licences are still not in place - the licence of first occupation is in place but not the touristic licence. Therefore, I would need to take legal action either against the bank or the developer to have any chance of getting money back I believe. Can I still go down the bank guarantee route even though the licence of first occupation was granted a number of years back? What would be the best path to follow?

    Thanks

  2. #2
    Senior Member
    Join Date
    Oct 2008
    Posts
    138

    Default

    Thank you for your email and apologies for not having replied earlier.

    To make it concrete, I will say that your right to enforce the bank guarantee is limited by the issuing of the license of occupancy in such manner that, if the license was posterior to the cancellation of the private purchase contract then you would be entitled and if it was the other way round, you would lose your right to it.

    The question here is whether the developer is involved in the white whale case, that is, if he/she is indicted or are they just victims of the case, tangentially. This is important as they would be responsible for the delays caused and not otherwise, and together with them, their bank.

    I would be grateful if you could advise on a) the date of cancellation by the Courts and b) the date of issue of the license of occupancy.

    With regards to the touristic license I presume you bought in a complex of "apartamentos turisticos" and therefore this is now pending to be able to operate as such. In my opinion, and I would welcome others, the lack of this license would not compromise the banks right to refuse payment of the deposit because the 1968 Act, which is the one that governs how bank guarantees and insurance policies on off-plan property deposits work, does not mention this.
    Antonio Flores
    Abogado/Lawyer
    Lawbird Legal Services
    Read my Blog

  3. #3
    Junior Member
    Join Date
    Sep 2010
    Posts
    2

    Default Cancellation

    Hi there, thanks for replying. I believe the licence of first occupation was granted before the cancellation granted. However, for such a development would the touristic licence normally be required to grant the licence of first occupation?

    The developer in question adminstration has now been lifted but I have been told by cancellation granted by the courts is still legally binding. However, as the developer has not got the funds to repay what would be my best route to try and get my money back. Where would I stand if the developer is declared bankrupt. Would I be seen as a creditor in the eyes of the law, if the developers assets were sold for this purpose.

    There are quite a few other people also with the same problem so would it be best to take group action?

  4. #4
    Senior Member
    Join Date
    Oct 2008
    Posts
    138

    Default

    Dear Callal,

    Touristic apartments dont follow the rules as regular apartments do. For a start, they are not considered to be first nor even second homes. Secondly, the dont have license of occupancy but opening license and that in Andalucia, new regulations are in place as from April 2010.

    With regards to your rights of cancellation and effective refund of your deposit, these are going to be affected by a number of variables which include your timely cancellation and overall financial situation of the developer (availability of liquid funds and outstanding mortgage capital on your proper, as well as other charges registered against the property).

    You can contact me directly on my email afloresATlawbirdDOTcom to discuss further.
    Antonio Flores
    Abogado/Lawyer
    Lawbird Legal Services
    Read my Blog

+ Reply to Thread

Bookmarks

Posting Permissions

  • You may post new threads
  • You may post replies
  • You may not post attachments
  • You may not edit your posts
  •