Should Corvera go into administration before the hearing we would have to represent you in this instance too, for the same fee. This is a possibility which we have in mind although no one can predict it will happen and if it does, when.

I am very doubtful that these comments are true. I believe this is just an excuse to put people off from litigating. These comments, which belong to the sphere of the rumour and gossip are inappropriate. Judges, generally speaking, are detached from considerations which fall outside the strict application of justice, but if it happens that these thoughts cross their minds, I would very much doubt that they would be stupid enough to tell anyone. Personally, I find these comments utterly out of order and are discrediting for the profession. But if we were to submit these comment to a serious consideration, it would not even resist a brief school boy analysis if we think what happened in Marbella, in El Ejido and in so many towns and cities, where judges, in spite of the devastating bad pressed and the impact on the economy, jailed hundreds of Town Hall officials, developers, lawyers and accountants for corruption.

You are referring to the recent case won against Manilva Costa SL. A Group Action, or Joinder of Actions (the term "class action" in Spain is reserved to Consumer Associations) is based, in this case, on procedural identity, that is, when there are common procedural elements (parties, subject matter of cause of action). The purpose is clear: to avoid incompatible or contradictory judgments in actions which have a certain degree of similarity, based on identity, connection or attraction. A secondary purpose is procedural economy. A translation of the court ruling is available upon request.

There are three possible scenarios in your case:

1. If the developer decided to cancel the contract then this could ironically benefit you because we could go to Court against the developer claiming 100% of your deposit by resorting to Consumer Protection Laws and Regulations, which establishes that if a penalty clause whereby a buyer loses everything should he not comply with the contract is null and void if there is no equivalent clause in the event of the developer defaulting. There are plenty of rulings where judges nullify this clause and force developers to return deposits because they failed to establish an equivalent clause, and as I say, this is based on mandatory contractual fairness, balance and proportionality.
2. If the developer forces you to complete, we would have to counter claim on the basis that no facilities have been built so you would pretty much be in the same situation as the rest of claimants.
3. There is a third situation whereby if the developer does nothing. In this case we have to be more imaginative because you would not be able, in principle, to cancel since you did not pay the installment payment. It can be argued, however, that payment was not made because the developer did not request you to do it, and also because no facilities are available. In any case. you are better off by not having paid this sum at this moment in time because the funds are with you and not the developer.

I have to say, in comparison to buyers in other phases, that you are lucky to:

1. Be in phase IV
2. Have a bank guarantee.

The reason for this is that contracts cannot be open ended until it is decided that by the developer that they want to build because otherwise if we go with what the developer intends to do you could end up having to wait 100 years, yes, 1 century, which is declaration of intent and also a legal “reservation” made by the developer on the legal title when they bought the property (please open the attachment and go to the paragraph highlighted in yellow). This is translated as follows:

By reference to the main plot number 3832 Corvera Golf & Country Club reserves its rights for a period no less than 100 YEARS, to build the FOURTH PHASE of the community, which entails, in the event of this happening within the stipulated time, the proportional redistribution of the service charges being paid by other phases within the community.

We have 3 other clients in your situation and we have already sent notice of execution of the bank guarantee, invoking certain legal elements, which we believe should be accepted by the guarantor within 10 days, failing which we would proceed through the Courts.

This means that you don’t have to wait until the end of the year as nothing has even started to get built and in fact we believe, pending written confirmation from the Town Hall in Corvera, that they have not even received planning permission (build license) and therefore it is our advise that the sooner you start the quicker you will achieve results.

The interesting point you raise is covered by article 1469 of the Spanish Civil Code (Spanish) according to which, if the sale of property was made on the basis of a price per unit of measure or number the seller will be obliged to give the buyer the full amount agreed on the contract. But if this was not possible the buyer will be entitled to opt for a proportional reduction of the agreed price or the contractual rescission provided that, in the latter case, the shortfall in size is not less than 10% of the size initially attributed to the property.

The first obstacle which I see to this is that rarely off-plan contracts are actually sold on the basis of price per square meter. This means that, in principle, this clause would not apply. However, selling the property “as seen”, that is, after having agreed to the product as a finished one is impossible because it is not built and therefore Consumer Protection Act rules could be invoked to make this sale subject to price per square meter, and effectively apply the clause.

In order for you be able to prepare a case on this basis, access to the properties will be necessary so as to measure the property up. If it is concluded that there is a shortfall of more than 10% of the agreed size, then it is possible to request a contractual rescission, but then again it would be necessary to prove that the sale was made per square meter (which the contract does not mention), by application of Consumer Protection Act provisions.

If the shortfall is less than 10%, then this can be the basis for reducing the price, but careful, because if what you want is to cancel the contract, then this has to be invoked as a secondary petition to the Courts after contract cancellation for lack of promised facilities.

Finally, with regards to the value of the property the law does not have specific provisions about this, although it can certainly be invoked, but has to be proved with at least two reports from registered real estate agents (we have requested reports for our claimants to this effect since it reinforces the issue of lack of facilities).

As a conclusion, if there is a suspicion that the properties are smaller than the promised size by more than 10% this can be invoked together with the lack of facilities, with the observations I have made above. Our firm is cautious in this respect because we don’t want to be seen as looking for every excuse possible to pull out, but for a fundamental and very crucial one, this being the non-built facilities.