ACYL Abogados. You can recover the money given to developers in failed housing development
REQUIREMENTS DEADLINE TO CLAIM AGAINST WHOM? OTHER ASSUMPTIONS
Ungiven homes
BANKING LIABILITY FOR THE AMOUNTS PAID BY THE PURCHASERS.
The Supreme Court has passed Sentence of 21st December 2015 in which the following jurisprudential doctrine must be followed by the rest of Spanish courts:
- We must be dealing with first or vacation homes. State-subsidized homes are excluded.
- Advanced amounts of the price on account must have been given before or during the construction.
- These amounts of the price must have been paid into a developer's account..
- f the home is not given and the sale contract is rescinded, the bank will be responsible for the refund of the said amounts if the bank did not require the developer the opening of a special account and the corresponding guarantee.
That is, Spain is a country with many failed constructions, some of them half finished and some others were not even started. They were sold off-plan and the purchasers paid advanced amounts of the price on account into a bank account designated by the developer.
Since there was no occupancy and expiry date, mainly due to the financial and real state crisis in the sector, the outcome for the purchasers has been losing their homes as well as the money given in advance or on account due to the lack of solvency of the developer and the lack of guarantees established by the law.
The jurisprudence of the Supreme Court establishes the obligation of the banks to be responsible of the advanced amounts on account.
In January 2016 the Law of 1968 which holds these claims was abolished. Consequently, the previous sales which fulfil the abovementioned requirements can be rescinded and a legal claim of the amounts on account can be started against the bank. With this aim you can contact our Law office to obtain without cost the study of viability of your claim and its corresponding budget.
REQUIREMENTS
- We are not dealing with official protection housing, that is to say, we are dealing with free housing. We can claim in case of housing cooperatives as the management companies of these cooperatives were legally recognized as developers.
- The purchase of the house must has been done before the 1st January 2016. The only requirements will be the contract of the purchase of the house and to prove that the purchases have given advanced funds before or during the works and, finally, that the delivery date was unfulfilled.
- The advanced money had to be had to be paid in the account designated by the developer. It does not have to be a special account for that development in particular and the amounts do not have to be guaranteed or insured either. Logically, the receipts of the deposits have to be provided in order to prove that their destination was the purchase of the house. The developer is responsible for the deposit, but the purchasers can personally make deposits in the account.
- The final destination of the house (main residence or second residence) is indifferent, we can claim in both cases.
- The complaint is also possible in case of failure in the delivery date by de developer.
DEADLINE TO CLAIM
We have 15 years to claim since the purchaser knows the breach of contract. For instance, if the house is not given within the stipulated period.
Nevertheless, after the reform of the civil law in October 2015, the period of prescription has been reduced to 5 years. Consequently, in all the cases with less of 15 years before this date, the deadline would be 6th October 2020. Therefore, it would be convenient to check the deadline to claim as soon as possible.
AGAINST WHOM?
Each particular case must be analysed. Generally speaking, against the developer and the bank where the account was opened. But in case of guarantee or the amounts were insured, the guarantee would be executed or the insurance claimed. The new case law of the Supreme Court has been to state the liability of the bank wich allowed the developer to open a common account without acting as guarantor for the given amounts with a guarantee or insurance. That is, the developer and the bank can be sued, or only the last one, if the contract resolution has been already obtained in court and the convicted developer is insolvent or in a creditor's meeting.
CAN I CLAIM ONLY IF THE CONSTRUCTION HAS NOT STARTED OR HAS NOT FINISHED?
No, it is also possible in the following cases
- If the house is not given within the stipulated period.
- If the house lacks the necessary licences for its delivery and habitability.
- If the conditions of the given house are different from the agreed ones.
- If it is given with not agreed burdens (seizure, mortgage).
- Whenever the house is not given in the agreed way (ex. if it was also sold to someone else).
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