Civil action raised against us by inmobiliaria
Can anyone offer advice here, please? My husband and I have been living back in Scotland since 1999. Initially we rented out our flat in Tenerife, but eventually decided to sell it in 2004. We put it in the hands of an estate agent as we were not living in the country and wouldn't be available to do the necessary work. Said agent promised to sort everything for us and we would only need to turn up at the actual sale. Unfortunately, once they realised there was more work involved because of the flat being V.P.O. and having to be declassified, they lost interest. To cut a long story short, we ended up doing almost all of the work ourselves. This involved several flights back to Tenerife, meetings with the purchasers, drawing up extensions to the sale period, etc etc The flat was eventually sold in February 2006, by which time we had incurred considerable costs. As a consequence, we did not pay the full commission of 6600 euros to the estate agent, giving them only 3600. They knew we were unhappy about the service (or lack of it!) we had received from them and, having heard nothing further from them, we assumed they accepted this. Out of the blue, 3 days ago, we were served with a summons issued by a court in Tenerife in July 2007 and asking us to present ourselves to respond to an ordinary action raised by the agent for the balance of commission. Don't ask me where these papers have been for the last 5 years, as we have not moved address and the agent had all our contact information here in Scotland. I know that in this country you cannot raise a civil action to recover a debt without first showing you have taken all reasonable steps to resolve the matter (having had to take action against a builder I know only too well how many chances you have to give them first!). As we have had no communication whatsoever from the estate agent prior to being served with this summons, is it valid? Can we appeal it on that basis? Also, given that 6 years have now elapsed since the sale took place, we are no longer in possession of all the documents and evidence we would need to show that we in fact did the bulk of the work on the sale ourselves. This places us at a disadvantage if we chose to defend the action in court. Do we have any comeback? We would be grateful for any advice or information anyone can offer us as we are worried sick about this. I can't believe the agent made no contact with us at all before this, and for these papers to arrive after 6 years has been a huge shock. Hope someone out there can help!
My apologies for this late reply.
If you certainly agreed with the agent that this work should be taken care of by them ,this should be indicated in the Estate Agent agreement or Contract that you signed at the time, or at least be understood or proven by written communications between both parties or statements made by witnesses.
If the agreement did not mention nor prove the above mentioned commitment, there are no initial legal grounds for a defense. Otherwise, you could claim that the full agreed commission was not paid because the service was not provided, properly evidenced by official documents.
The fact that you had not been notified of the legal process prior to receiving the court notification will not suffice to claim but it can avoid that the judge asks you to pay for the court costs, as you can say that you had understood that the selling process had ended without a problem, considering they accepted the 3.600 € without complaint.
I recommend you to answer the court claim ( you are normally granted 20 days to do this, so this recommendation may be late ). If you do not do it within the legal timeframe, you will not be able to do it at a later stage and it also puts you in a weaker position. If you do not have the tools to defend yourself, the best thing to do is to get to an agreement with the agent for a smaller amount as they will most probably prefer to obtain a certain amount of money rather than running into high court and solicitor's fees as well as wait for 3-4 years for the case to be resolved.
We can offer our legal assistance in responding the court claim and check the documentation to see what is the contracted obligation that the Estate agent can prove.
If you wish to contact me personally, you can find my contact details below (in my signature).