SUPREME COURT: Spanish banks must return millions to buyers of flats sale, that did not reach construction.

November 22, 2016

Buyers who have made payments to Promoters that have become in bankruptcy and, therefore insolvent, are entitled to recover such advance amounts if the Promoter entered these amounts into his Current account (special or not) that had signed with the corresponding banking entities.

"This was established by the ruling issued by the TS in December last year and the subsequent rulings of April 8 and 24, 2016, which leave this possibility free and will oblige the bank to return millions of euros to the Buyers of non-existent houses ".

These entities, the Banks, admitted income to a promoter's account without requiring the opening of a special account and without the corresponding guarantee or the relevant guarantee on said amounts, as set forth in Law 57/1968 of July 27.

The High Court "understands that there is responsibility on the part of the bank that finances the loan promoter if it does not verify or verify that the amounts delivered by the purchasers on plane are designated in special account for the purpose of the construction of their future dwellings”.

That is to say, it has gone from a judicial panorama in which those affected only had a possibility of complaint against the promoter and, therefore, had to face a competition of creditors - with their inherent damages -, and, mainly, to the insolvency of the Debtor, to a scenario in which the same affected can claim for legal non-compliance the repayment of payments to the bank, which is presumed solvent, which allowed that promoter not to open a special account, and, above all, to guarantee said sums through An endorsement or insurance.

Moreover, the judgment of the Supreme Court of December 2015 and the others that follow it are very important in this matter since in the Judgment there is what is called a fixation of jurisprudential doctrine when expressly stated by the Supreme Court as follows:

"In the purchase of houses collected by Law 57/1968 credit institutions that admit buyers' income into a promoter's account without requiring the opening of a special account and the corresponding guarantee will be liable to buyers for the total of the Quantities anticipated by the purchasers and entered in the account or accounts that the promoter has open in that entity ".

Therefore, and after the delivery of these judgments, the buyer who is in this situation has full legal feasibility to exercise such claim not only before the promoter, who is usually in competition or already insolvent, but also before the bank or of credit.

The main reasoning of these judgments is based on the interpretation to be given to the Law itself, and, mainly, to the precept "under its responsibility".

That is, the issue (prior to the issuance of these judgments of the Supreme Court) was in the legal scope and subsequent significance of the term "under his responsibility" indicated in Article 1.2 of Law 57/1968, which reads:

"Article 1.2 ... For the opening of these accounts or deposits, the Bank or Savings Bank, under its responsibility, will demand the guarantee referred to in the previous condition".

Accordingly, "Our Courts and Tribunals have stated that" under their responsibility "means that the bank must respond to the buyer who, under the regime of Law 57/1968, delivered amounts to account to the promoter who in turn entered into Bank account of the bank or credit institution itself. "

As the High Court explains, “the responsibility" that art. 1.2 of Law 57/1968 imposes on credit institutions:“'... it denies that it is a third party outside the relationship between buyer and seller. Rather, it entails the legal imposition of a special duty of supervision over the promoter to whom the construction loan is granted, so that the income in the sole account that it has with the entity, especially if it comes from individuals as in this case, are derived To the special account that the developer must open in the same or another entity but, in any case, constituting the guarantee that the corresponding entity will have to "demand".

Definitely, the credit institution must respond for breach of its legal obligation, because it knew or had to know, that the buyers were entering amounts on account of the price of the housing of the promotion that, consequently, legally obliged him to open a Special and separate account, duly guaranteed for this purpose. Not having done so, it incurred the specific responsibility established in art. 1.2 of Law 57/1968.

In the event that you are in this case, contact us, where we will attend you in a personalized way and based on our experience, of success, in these matters, we will be able to defend your interests and claim the amounts paid to the promoter who Never got to build your home or the promotion in which you acquired a property that was never built. Likewise, we have successfully brought collective suits of several affected against the promoter and the bank, having won the first sentence.

Therefore if you are a group of affected, do not hesitate to contact us, anywhere in Spain, (the peninsula, or Canary Islands and Balearic Islands) we also are experienced in class action.

The initial consultation will be free. Sáenz & Associates, Lawyers.

The information and legal counsel offered in the Blog section is just guiding and not binding. If you need to make a qualified legal inquiry, you must always address to a professional duly authorized. If you wish, you may contact us at [email protected]

SÁENZ LEGAL, ABOGADOS & CONSULTORES, is a law firm that was created in 1985, although its members have prior professional experience in the legal sector of more than 20 years.
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