Archive for August, 2008

SPANISH LITIGATION PROCESS

August 26, 2008

Not many non residents know all the steps of a court procedure in Spain.

 

There are several sorts of court procedures in Spain but in this article I am going to focus on the claims of more than 3.000 euros.

 

You have to hire the legal services of a solicitor and a procurator and they will prepare a lawsuit that they will present in the Court of the place you are suing.

 

After that the judge will analyse it and if everthing is formally correct they will notify the lawsuit to the other party who has 20 working days to reply.

 

Thereafter the Court will notify the reply to the plaintiff and scedule a court hearing in which formal issues will be discussed, both parties will present the evidences they have and the Court will try to arrange an agreement between the parties.  If this is not possible the case has to proceed as a court trial.

 

During the Court trial both parties will present the evidences they have and make an deposition defending their positions.

 

The judge will make the final ruling several weeks later and both parties will have the option to appeal the sentence to the High Court.

 

The first court will take aproximately 8-14 months depending on the court speed, and the appeal could take further 10 months.

 

If you need more information please do not hesitate to contact me at jose@lawfirminspain.com

 

 

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COULD THE DEVELOPER GO AGAINST BUYER THAT DOES NOT COMPLETE THE PURCHASE?

August 9, 2008

The fact to purchase a property in Spain has become more and more usual the last 10 years, and it will probably be one of your most important investment.

According to  Spanish law the developer could choose between 2 options if the buyer does not complete:

1.- To keep the amount that the private purchase contract establishes.
2.- To force the buyer to complete the property.

Few buyers are aware of the fact that the developer has both options  because some years ago it was more common to choose the first option and the developer sold the property again to another purchaser.  Nowadays there are few buyers and for that reason most developers choose to force the buyer to complete.  This is partly also because the developer can not afford the mortgage on the property. It is preferable for the developer that you take over the mortgage or obtain a new mortgage so that they can cancel theirs.

If the purchaser does not complete the developer has to go to a court procedure to try to force the completion. If they win the case and the buyer does not complete the developer can freeze the necessary assets to cover the buyers debt and the court expenses.

Which could be the solution to avoid this situation?

1.- If the buyer does not want the property before the developer obtains the habitation license they have to seek advice from a lawyer specialized in this area to search the best way to get out of the contract signed. 

2.- If the buyer could obtain several certificates from differents banks that establish that it is not possible to obtain bank financing the purchaser could ask the developer to choose the first option, if not the case has to be solved before the courts.

If you have any queries please do not hesitate to contact me at  jose@lawfirminspain.com