Bank guarantees, or Aval Bancario, from developers have been compulsory by law on off-plan purchases in Spain for the past 40 years. They mean that if a developer fails to build on time, or goes into administration and does not build at all, buyers should get most or all of their money returned. Until recently they worked well. As the holiday home market boomed, few developers went bust and buyers would accept minor delays. If a buyer did claim a refund, developers and banks gladly obliged knowing that rising values and strong demand would see any subsequent unsold home snapped up.
But now Spain's property market is in free-fall. At least 15 developers building holiday homes on the Costas filed for bankruptcy last year. Thousands of homes remain part-built and buyers are calling in bank guarantees. But many are discovering they were given faulty documents by developers, or have guarantees with conditions that make them worthless. One major developer in administration, Martinsa-Fadesa, has been accused by the newspaper El Pais of not issuing bank guarantees at all.
"Until recently some developers would regard it as an insult to be asked for them by foreign buyers and just wouldn't issue them. In other cases guarantees exist but may be out of date or worded in a way that make banks feel they need not honour them," says Peter Ebders of the International Law Partnership, a British legal firm.
More ominously, Ebders says even some guarantees that are in order are not being honoured because banks do not want to pay out large sums in the current dire financial situation. Ruth Genda, from Wymondham in Leicestershire, fell foul of a worthless bank guarantee on an apartment in Marbella on the Costa del Sol. The retired educationalist put down a £75,000 deposit in 2003. But construction was delayed and then the flat was declared an "illegal build" for lacking formal planing permission. Genda took Banco Popular Hipotecaria (BPH) to court, which declared her guarantee valid. But BPH appealed and the original result was overturned. A further legal review found in the bank's favour.Genda says the lack of appropriate building consent makes the flat impossible to occupy: "We're not prepared or able to buy an illegal property. It can't be mortgaged and it can't be sold because of its status. Our coffers are drained by legal fees and other costs, and we're likely to lose our deposit." Genda has launched an online petition - gopetition.com/petitions/spanishbankguarantees.html - but is realistic about the slim chances of success. "The guarantees have been given under false pretences, and no one in authority we've approached - MPs, MEPs, ministers, ombudsmen and so on - have been able to help." More than 100 people claiming to have valid guarantees have signed Genda's petition. "The problem is widespread. Lots of Britons are caught up. It's scandalous," says Barcelona-based Mark Stucklin, editor of the website Spanish Property Insight. The Bank of Spain says it has told banks to honour valid guarantees but has no power to enforce the instruction. Lawyer Mark Wilkins of Marbella-based The Rights Group says any prospective buyer, or one in mid-purchase, should instruct a lawyer to check the eligibility of his bank guarantee - even if the developer appears not to be in financial difficulties.
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