|
EXPANSIÓN (complete article)
A Court condemned an insurance company to pay back the payments made in advance by a British couple, including legal interests, with regard to a development in Estepona that suffered a delay in the commencement of the construction. Until now, it was only common to claim indemnifications for the delay in the delivery of the property.
The buyers affected by a delay in the commencement of the construction of their homes have the possibility to claim the devolution of the amounts paid in advance to the developer plus the legal interest on these amounts. This judgement of the Court of First Instance number 13 of Barcelona has condemned the insurance company Vitalicio Seguros to pay back money and interests to the buyers of several homes part of a development in Estepona (Málaga).
This judgement is pioneer, taking into account that until now it was only common to claim for the delay in the delivery of the property (delay in the termination of the construction) but not for the delay in the commencement of the construction as it was the case in this specific judgement. The sums obtained by the claimants are quite generous and amount between 70.000 and 276.000 EUR.
This case can be a judicial precedent, in such a way that people affected by similar delays in the commencement of their construction can also have their money paid back. Dimas Cuesta, partner at Lexland Lawyers in Marbella, states that “to file a claim, buyers only have to provide the insurance policy received upon signing the purchase together with a document that certifies that the construction has not been started within the period agreed upon in the purchase contract”.
The facts that lay at the basis of the judgement concern the purchase of a new built home part of the development of Valle Romano in Estepona by the company Comercio del Estrecho.
These houses were offered by an intermediate to associates and employees of football clubs part of the English Premier Football League suffered a delay of 12 months in the commencement of the construction although “it is not necessary”, says Lexland, “that the period of delay is that long to file a successful claim”. The buyers signed a contract that stated a date of commencement of the construction around spring 2007. Nevertheless the claimant was able to provide documents proving that the clearing and cleaning of the plot had not been started until June 2008, being 12 months later.
The insurance company raised several prejudicial questions and consequently opposed to the writ of execution. By this decision the Court gave a clear answer to a situation that is becoming very common in the construction sector, like the delay in the commencement of the construction of apartments, resulting in many claims handled by consumer protection associations.
During the Spanish real estate boom it was quite common to file claims for the delay in the termination and delivery of the property, but the economical crisis has recovered a possibility, foreseen but unexplored by the law, to claim for the delay in the commencement of the construction. Moreover, many buyers purchased apartments for a price that exceeds the current market value with 25%.
The buyers first acted against the developers to recover their initial payments, in most cases around 20% of the total purchase price, plus legal interests. As they did not get any response, they decided to claim the insurance company. However the buyers did not claim damages as they could not proof the loss of possible earnings for the delay in the use of the house.
The guaranty insurance policies are governed by the Law 57/1968 of 27 July guaranteeing the amounts paid in advance by the buyers before execution of the title deed. Furthermore, these insurance policies are qualified as guaranty contracts in accordance with the Spanish Law on Insurance contracts of 1980. This Law states that the insurance company has the obligation to indemnify the loss suffered by the buyer, within the limits of the contract and the law, in case of breach of the legal and contractual obligations imposed on developer.
To assure this guaranty, the Law obliges the developer to contract an insurance policy, and for those cases in which the amount of the damages is not paid on a voluntary basis, article 3 of the Law 57/68 foresees that the insurance policy together with a document that certifies that the construction has not been started within the period agreed upon: “Once the period of commencement of the construction or the termination of the construction has been expired and none of these have taken place, the buyer can opt between the annulment of the purchase contract with restitution of the amounts paid in advance plus legal interest at a rate of 6% per annum or agreeing with granting an extension of this period to the developer.”
The judgement concludes that “the insurance contract or the bank guaranty together with a document that certifies that the construction has not been started or that the property has not been delivered grant to the buyer an executive writ […] in order to claim, to the insurance company or the guarantor, the restitution of the amounts the buyer is entitled to.”
EXPANSIÓN (complete article)
Contact Lexland Abogados
Dimas Cuesta Montejano
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
0034 952 778899
Source : Expansión
|
Buying a property 
Comments
Again continually asked for bank guarantees to no avail our apt doen not look like it will be built, we would like our money back what are the chances of that?
Best luck!
Cheers
We have received several queries about Polaris World situation. We will forward your query to the professional in charge of these claims.
Kind regards,