Re: Winter 2016 | Page 93

Glimmer of hope for those lost Spanish property deposits The beginning of the 21st century property boom encouraged many people to invest in property abroad and particularly in the South of Spain. Investors saw potential of the area, whilst lots of Britons enjoying the great weather decided to invest their life savings in a property there, maybe for holidaymaking or to retire. At that time, the Spanish coast was being developed without limit and developers were even advertising property developments before obtaining the appropriate licences. Many people were paying deposits for off-plan properties and without making sure the contracts or the conditions were not abusive. Unfortunately, the property boom in Spain also crashed with the global credit crunch. Many people realised that their dream properties had not yet been built and developers were giving excuses and delaying the construction. In some circumstances, they were not able to continue with the development due to lack of cash flow. The Spanish coast was left with a skyline of property structures which have never been completed. Many developers went into liquidation, housing developments were never finished and there are still many insolvency proceedings pending in Spain. Many buyers who lost their deposit are currently waiting to hear whether they will be entitled to recover these monies, but unsurprisingly many have little hope. However, there has been a recent court decision in Spain which may bring some hope to those still waiting. The Spanish Supreme Court decided back in December 2015 that banks, together with developers, may be obliged to refund those deposits invested in off-plan properties when they were never built or completed. This gives some hope to home buyers who thought that their deposit was completely lost and who have probably already forgotten about it. The case was issued by a Spanish buyer who in 2004 invested under EUR 39,000 for a deposit of a property in Alicante. The property was situated in a development of 94 properties which was promoted by a German developer. The commencement of the constructions was delayed and it was not until 2007 when the buyers were notified that work would start. However, they were never completed. In this particular case, the developer was sued, together with the bank. It was a very unusual case, as most people who were also affected decided to commenced proceedings only against the developer, without joining the bank into the proceedings, as they did not consider that the bank could be a defendant. Surprisingly for most, the case against the bank was successful in the first instance, however dismissed at appeal. The Appeal court reviewed whether the banks were considered third party and therefore unconnected to the relationship between the buyer and seller. The case was unexpectedly then taken to the Spanish Supreme Court for further consideration. Unsurprisingly as this instance is a complex one, not many claimants were willing to incur the cost of going through this route. The Supreme Court judges decided that the first instance had been the correct one and confirmed that the bank must refund the deposit money paid by the claimant, plus interest and legal costs. The Spanish Supreme Court judgment was based on an old Spanish Law which came into force during the Spanish Dictatorship of Franco, dated 1968. The Law was originally published to protect the consumers and imposed obligations upon the banks to provide guarantees for the deposits paid for this type of properties. The banks were responsible to check and guarantee that the monies paid as deposits were paid into a special account and always used in the construction of the specific property or complex. They were also responsible to check that the required guarantees were in place in the event that the developer went into liquidation. During the period of the property boom, developers and banks did not see the need for providing or checking guarantees. They were more concerned in making profit as property prices were rapidly escalating. These varied examples include a resort in the Murcia region of over 2,500 properties, which was never built. Buyers paid over EUR 53 millions in deposits, however the guarantees provided by the Spanish bank only covered EUR6 millions. In the judgement of December 2015, the Spanish Supreme Court indicated that the banks were in fact in breach of the 1968 Law as they had a duty of care to their customers. Although the 1968 Law was abolished in January 2016, the Supreme Court judgment has opened the possibility of trying to recover the lost deposits, plus interest, from the negligent banks. Some sources state that the number of buyers who may have been affected could be in the region of 600,000 however it is likely that this is a conservative figure. We know that a big percentage of that figure may be deposits paid by British and German residents who may have invested in their dream holiday home which they never received. Cases will need to be reviewed on an ind ividual basis; however it may be worth dusting off your old Spanish property paperwork and sending it to us to review. By Carmen Calvo-Couto 91