forced complete

[Lawbird Lawyer]

I guess you don't have the answers and cannot help me.
Or perhaps you do not have the stomach to sue a fellow lawyer. Whatever the reason....Thanks.

Patience is a virtue.

[Unregistered]

Thank you very much for your comprehensive answer.
I now see why the lawyer did not trouble himself to persue the developer for my Bank Guarantee.
He arrogantly regarded providing it as the developer's duty and knew that if anything went wrong with the transaction the blame could be pointed solely at the developer.
He was doing the minimum work for his fee, and he was protecting his own interests first...not mine.
So why did I pay him for PoA? He was paid to act on my behalf and protect my interests.
How does a lawyer aquire the swankiest suite of offices in Marbella when he is so negligent with his clients affairs??

All I wanted was a holiday home in the sun to spend our winters in a warmer climate.
Now, like thousands more,we have lost our money with no chance of being able to afford another property. All our hard work and dreams have come to nothing.
Just one more question. Do you know how many Spanish citizens been caught up in the problems caused with the lack of or failing to produce bank guarantees or is it predominantly affecting foreigners?

Yes, you're right about 'Patience'. But I think that even a saint's patience would be tested when trying to purchase property in Spain.

[Lawbird Lawyer]

Dear Sir,

I fully understand your predicament, however no distinction is made between foreigners and Spanish as you hint, they've both been treated/mistreated alike. I suggest you lodge a complaint as well in the Bar Association of which your lawyer is a member, you will have to file it in Spanish. Many people never get to file these complaints in despite of being aggravated and the matter just drifts by oblivious to the Bar Association.

In fact if you follow the link I provided you in my post above to the article on bank guarantees there's a further link to a newspaper article in which the Bank of Spain itself highlights this problem. I believe there's a petition that is circulating over the net on the matter. Perhaps you should join it.

In any case, even if you don't have a bank guarantee and providing your developer hasn't gone bankrupt you can still pull out due to the late delivery in handing over the property and apply/litigate for a refund on your deposits. Please read this other article of ours.

Suing a developer on grounds that he failed to deliver a BG is a bad idea in our opinion as you are bound to lose. Please read this other article. It makes more sense that your appointed lawyer seeks administrative sanctions imposed on the developer for lack of compliance in issuing BGs following Law 38/99. However, this only allows for a sanction, you will not recover your funds on following this procedure. Developers can be fined up to 25% penalty of the amounts they should have guaranteed:

Building Act: Law 38/99

DISPOSICIÓN ADICIONAL PRIMERA. Percepción de cantidades a cuenta del precio durante la construcción.

La percepción de cantidades anticipadas en la edificación por los promotores o gestores se cubrirá mediante un seguro que indemnice el incumplimiento del contrato en forma análoga a lo dispuesto en la Ley 57/1968, de 27 de julio, sobre percepción de cantidades anticipadas en la construcción y venta de viviendas. Dicha Ley, y sus disposiciones complementarias, se aplicarán en el caso de viviendas con las siguientes modificaciones:

La expresada normativa será de aplicación a la promoción de toda clase de viviendas, incluso a las que se realicen en régimen de comunidad de propietarios o sociedad cooperativa.

La garantÃ*a que se establece en la citada Ley 57/1968 se extenderá a las cantidades entregadas en efectivo o mediante cualquier efecto cambiario, cuyo pago se domiciliará en la cuenta especial prevista en la referida Ley.

La devolución garantizada comprenderá las cantidades entregadas más los intereses legales del dinero vigentes hasta el momento en que se haga efectiva la devolución.

Las multas por incumplimiento a que se refiere el párrafo primero del artÃ*culo 6 de la citada Ley, se impondrán por las Comunidades Autónomas, en cuantÃ*a, por cada infracción, de hasta el 25 % de las cantidades cuya devolución deba ser asegurada o por lo dispuesto en la normativa propia de las Comunidades Autónomas.

I trust the above helps you.

[Lawbird Lawyer]

When we received our file from them there was no Bank Guarantee. I asked them if they had misplaced it and their reply was, 'The developer failed to do his duty and supply one'.

My Questions.

1.Should I sue the lawyers for gross negligence??
2. What do you think would be the outcome?
3. What would be the approximate cost.
4. Where would I find another lawyer with the ability to do this?
5. Would I get back my deposits and also the money that I paid the lawyer for a) Power of attorney ,b) conveyancing services, plus interest and damages?

Thank you.

Dear Sir,

Further to your queries,

1. You may sue the lawyer if you wish alleging professional negligence and claiming on his professional indemnity insurance.
2. We just wouldn't know as it depends on the judge to rule on this matter. However, Law 57/68 stipulates penalties for the developer that fails to comply with this not for the lawyer as not everyone will hire a lawyer to do the conveyance.
3. It depends on many factors, we are unable to give you a general answer. In any case your lawyer should always provide you a Letter of Engagement with a full breakdown of legal fees and expenses as we do. If you don't agree to it, you don't sign it.
4. Propose your case to any lawyer. They must be proficient in litigation however.
5. The outcome will vary. In any case if you claim form thier professional indemnity insurance you could recover the deposits plus compensation and interests depending on the judge's ruling. I doubt you would be able to recover the POA and their professional fees.

[Unregistered]

At the initial meeting with our lawyer when we paid our deposit for a 'flipped' property our lawyer repeatedly told us that our money was safe. He smiled indulgently at my repeated questions regarding the security of our funds and kept telling us there was nothing to worry about and in any case the Bank Guarantee would ensure our money was safe. He explained how the Bank Guarantee worked and even offered scenarios in which we might have to claim if anything should go wrong. They also asked us ti give them power of attorney for the purchase of the property as this would mean we would not have to travel back and forth from Spain to sign the contract etc.,
Tired of waiting almost four years for completion and after repeatedly asking our lawyer to seek the return of our deposit under the terms of the 'Bank Guarantee', (to which their repeated reply was that it would involve a very expensive court case because the bank said, ' Only when a judge says we must pay back the money will we return it to the purchasers') we decided to change lawyers.
When we received our file from them there was no Bank Guarantee. I asked them if they had misplaced it and their reply was, 'The developer failed to do his duty and supply one'.
My Questions.
1.Should I sue the lawyers for gross negligence??
2. What do you think would be the outcome?
3. What would be the approximate cost.
4. Where would I find another lawyer with the ability to do this
Thank you.

Hi, I am in the same situation as you. I have now realised how corrupt the Spanish Law is. I cannot see a way out of this. Unless of course you are prepared to spend nearly as much again. That is what my solicitor is suggesting. I did have a bank guarantee, but it expired within 6 months of the original completion date. My solicitor could have renewed it, but she just did nothing at all. I did not know this, until too late, I cannot see the point of having a bank guarantee that expires just when you need it. I think the only way forward is to get together (there are thousands of us in the same situation) and fight the system together. What do you think?

[Bob Marley]

We are being forced to complete also. The LFO was issued in November but the anticipated completion date we were given was June 2009 when we first signed up. We also bought the apartment to rent out and the promised facilities such as town centres and golf courses will not be ready until long after we have completed. Can we hold off completion until the facilities are in place or could we claim breach of contract because of lack of facilities?

[Lawbird Lawyer]

We are being forced to complete also. The LFO was issued in November but the anticipated completion date we were given was June 2009 when we first signed up. We also bought the apartment to rent out and the promised facilities such as town centres and golf courses will not be ready until long after we have completed. Can we hold off completion until the facilities are in place or could we claim breach of contract because of lack of facilities?

Dear Sir,

I'm afraid you cannot. The communal elements are not regarded as an essential part of a Private Purchase Contract unless it was specifically worded in. You cannot hold off completion when a LFO has already been granted due to this.

Once the Habitation Certificate (LFO) is obtained for your property you are obliged to complete or else face the penalties within your contract. In fact as per our previous replies in this thread the developer can, at his choice, sue you demanding fulfilment of the contract. i.e. that you complete. And developers are doing this.

Once the LFO is granted you cannot really claim a series of breaches such as late delivery etc this ought to have been done earlier on. The main obligation of the developer is to hand you over the property itself, which he has now done legally as there is a LFO granted by the Town Hall.

[Unregistered]

Hi, I have been reading the posts regarding forced completion and that this can be enforced against UK and EU assets. What would be the situation if someone, as I do, does not live in the EU? Does this make much difference?

Thank you in advance for your comments.

[Lawbird Lawyer]

It depends on where you live, but in general, yes they can.