IN previous articles we have commented on the possibility of recovering money lost in the off plan purchase of new homes where the developer has disappeared or has become insolvent.
According to the applicable law, (until recently, Law 57/68), the banks receiving in accounts opened by the developers , which knew that they were payments on account for the purchase of properties to be built off plan would be responsible for returning the money paid with interest.
This was possible if the money was deposited without the accounts being treated as special accounts, especially if there was no control over the movement of money in and out and if there was no insurance or bank guarantee in place.
That law 57/68 was substituted by Law 20/2015, which offers buyers less protection, but when properly used, provides sufficient guarantees in case the properties are not built to get the money paid back.
In this article, we want to talk about the decision of the Supreme Court 33/2018 of January 24, which is now quoted daily by Spanish banks in court hearing on this subject in order to try to avoid their obligations.
Banks argue that the Supreme Court has declared that if the buyers paid the money to a different bank than the bank that gave the general bank guarantee line, or paid through a lawyer or agent or currency broker, the bank should not be considered responsible for refunding the money if a problem arises because it cannot know who made the payment.
We must clarify this court decision, as the truth is that in that initial case, the bank that was sued and was declared not liable, actually complied with the law 57/68, (which does not happen often) because it had a bank guarantee line, had opened a special account, controlled all income and expenses of said account, gave guarantees to all those who paid in to the special account and requested that payments be made into the special account.
Just in that one specific case, the Supreme Court concluded that the bank complied with the law, and that the claimants, who paid into the account of a different bank (knowing that it was not the special account), do not have the right to get the money back because their payments were made outside the possibility of real control of the guarantor bank.
Conclusion:
New purchases: If you are going to buy a property from a developer, off plan, it is essential that you have full details of the special account, know which the guarantor bank is, obtain a certificate confirming that your money will be guaranteed and that you make the payments correctly.
Recovery of money lost in buying new property or off plan. If you lost the money paid in the purchase of an off plan property, you must be aware that it is not correct for anyone to state that if you paid to a different bank, or through a lawyer or a currency exchange broker, you cannot claim.
To establish responsibility it will be necessary to analyse the circumstances of the case to see whether the bank fulfilled the obligations of law 57/68 and to decide who had the real control of the payments, etc.
If you wish to buy a new property off plan from a developer in Spain, or recover the money lost, contact us and we will help you.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
Carlos Baos (Lawyer)
White & Baos
Tel:+34 966 426 185
E-mail: info@white-baos.com
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