We are all too familiar with the purchase of off-plan holiday or retirement homes in Spain being aborted due to the property developer going bust, failing to conclude the project on time, or the property being left unfinished and unfit to live in. This has resulted in many buyers losing the amount put down as a deposit and their Spanish dream turning sour.
We have already assisted many buyers to recover their deposits over the last years making successful claims in accordance with Ley 57/68, the Spanish law that with effect from 1968 set out the obligation for any property developer in Spain to provide a bank guarantee in relation to the payments received towards the price of an off-plan property.
The Current Scenario
With a view to reinforce the protection available to buyers of off-plan property, on 1 January 2016, Ley 20/2015 de Ordenación, Supervisión y Solvencia de las Entidades Aseguradoras y Reaseguradoras replaced the existing Ley 57/68. The new law follows the steps of Ley 57/68 and it confirms the level of protection already offered (with effect from 1968) to buyers of off-plan property in Spain.
In particular, Ley 20/2015 sets out the following obligations for any property developer in Spain:
- To secure under a bank guarantee the refund of the amounts paid plus the legal interest on those amounts, if the property is never built or delivered on time.
- To pay the amounts received into a special bank account opened with a bank or building society. This account must be a separate account from the developer’s other bank accounts. The funds in this special account must be exclusively used for expenses related to the particular development.
- The purchase contract must reflect that there is a bank guarantee or insurance policy in place and the name of the bank or building society holding the amounts received towards the price.
- The property developer must provide the buyers with the documentation confirming the bank guarantee when signing the purchase contract.
Judgement S 21-12-2015 No. 733/2015
In view of the increasing number of claims made by buyers of off-plan property over the last ten years, the Spanish Courts started to gradually apply Ley 57/68 in the broadest possible sense ordering the property developers to refund the buyers any amount put down as a deposit, whether they had obtained a bank guarantee or not.
In December 2015, the defence of the buyers’ positon was taken to a totally different level, when the Spanish Supreme Court ruled that not only the property developers should be held liable for the payments received towards the price. The bank where those funds had been paid into should also hold joint and several liability.
The Judgment S 21-12-2015 No. 733/2015 has therefore opened the door for the submission of claims against the Spanish banks which received the buyers’ funds, not only the property developers. This has significantly increased the prospects of recovery for many buyers , as in the majority of occasions the property developers have already gone into liquidation or have no assets against which enforce a favourable judgment.
The Limitation Period
It is very important that you react quickly and take immediate steps to recover the amounts put down as a deposit so you can be reassured that your claim falls within the time limit set out by the Spanish statues of limitation. With effect from 7 October 2015, the standard limitation period in Spain was reduced from 15 to 5 years by virtue of Ley 42/2015.
The obligation of the property developers and/or the banks to refund any amounts received before 7 October 2015 remains enforceable up to 15 years of the date of the deposit payments. However, Ley 42/2015 sets out 7 October 2020 as the deadline to make a claim in respect of any amount put down as a deposit before 7 October 2015.
This means that if a buyer made a deposit payment in June 2010, the limitation period to present his/her claim will conclude on 7 October 2020, as opposed to June 2025 (2010 + 15), which would have been the limitation period in accordance with the Spanish statues of limitation preceding Ley 42/2015.
If you have lost the amount put down as a deposit when purchasing off-plan property in Spain, at Nockolds Solicitors we can help you to recover those funds working on a “no win, no fee” basis. For further information on this matter, or for any enquiry regarding Spanish law, please do not hesitate to contact Javier Jurado on 020 7294 7330 or by email at firstname.lastname@example.org.