Taking the builder to court.

Take your builder to court

Take your builder to court

Many of us who have purchased properties in Spain have been let down, lied too, and fraudulently ripped off buy builders, solicitors & estate agents. Now if this has happened to you and you don’t take action then the cancer in this country will only fester. The question is how much will it cost to take legal action and how long will it take. The answer is it might not cost you anything if you take the option of legal aid but it will take a long time with or without legal aid.. Taking the option of legal aid makes the government more aware of the problem. Another consideration is if action is taken what can be gained at the end of the long legal procedure. Is compensation a real possibility if we win the case.

I am helping some brave clients through the process at this time and I can inform you of how the process is going and the advice as to what action should be taken.

One of my clients was sold a villa in 2006. All seemed o.k. a solicitor was present at the signing of the deeds and my client asked him if all was legal she was assured it was and within six weeks the habitation certificate would be issued and the electricity would be connected. After many visits to the builders & estate agents office the and a bit of investigation it was discovered that the property was built without the licences on a rustic plot that was not big enough to build on. (10,000m2 on this area). The builder & estate agent continued to assure her that soon the electricity would be connected. My friend is now in the process of taking the builder to court.

The land the property is situated on is agricultural land, It has been divided into sections through a process called “division horizontal” so smaller parts of the plot could be sold off to individuals. This is no longer legal but was some years ago. The builder then built a house without a licence to build, without certified architects plans and without any possibility of getting the finishing certification (Bulitin and habitation certificate). No taxes were ever paid to the authorities. The property was not registered with the rates department. The house was built without a 10 year guarantee or insurance. It was not checked by an architect to make sure it had been built according to all the legal safety standards. Under normal circumstances a notary will not allow such a property to be signed over to a purchaser but the builders architect signed an antiquity certificate declaring that the property was more than 4 years old which is a offence in its self.

First we went to the school of  lawyers and we were appointed legal aid and a solicitor. We took all of the paperwork with us. Sales contract, letters from the builder declaring that the electricity would be connected soon. We had previously obtained paperwork from the registry office which showed the name of the architect that had provided false certificates to the notary and land registry at the time of the horizontal division. It was also discovered that the builder & architect had declared that the land had two other properties on it that did not exist. The builder has started to build a second house there now which according to the architects certificate was built in 2002. When this was exposed we denounced it to the town hall who have sanctioned the builder and are raising a demolition order.

Last Friday we visited the solicitor that is attending us & she has informed us that we have a solid case against the builders and when it gets to court we will win the case. The first thing to do is find out if the builders have property and monies in there name. If he does not have anything then it is unlikely that compensation will be given at the end of the process.  To find out if the builder has a first we need a note from the registry office to see if the builders have anything in Spain. In this case it has turned out as a positive. The next step is to get “nota simples” which explains in detail what is what the property is. The paperwork to do this costs 10€ for the first search then just over 3€ for each “nota Simple”.

Once the information is collected then you will know if there is a case for compensation from the builder. I personally think it is good to take matters as far as possible even if there is not a possibility to get compensation because it is a statement that expats will take action if we are victimized in this fraudulent way. Unfortunately in this country the law dictates that this type of offence is not criminal but civil. This does not mean you will get nothing at the end of the legal process, the judge will decide according to the evidence that you have been left without the services and compensated appropriately.

The solicitor advised us that at the beginning of the process she will apply for a tempory freeze of the builders assets until the court case has finished. If the builders only have property then it will be embargoed. This means that he will not be able to sell or pass it on without compensation first being paid.

There are different ways of bringing a case against the builder. If the offence was made over 4 years ago then it is only possible to go for the company that appears in the paperwork(deeds etc). If it is less than 4 years then it is possible to take the case against the administrators of the company as individuals to court. (The administrators are those who have made the profits and have most assets, houses etc.). On many occasions solicitors have advised not to take builders to court because you will get nothing at the end. Then later sometimes when it is now a little late in the day it has been found out that the builder did have assets and a case could have been (or can be) formulated. I think it is a terrible negligents on behalf of solicitors that have advised there clients without first investigating the real state of affairs. I know that speaking to clients who have purchased illegal properties that if compensation is not forth coming then it is the satisfaction of taking these fraudsters to court and doing all in our ability to rectify the situation. After all the builders have mad a fortune out of illegal building and I can not believe that the money has just disappeared. The recession took most by surprise in 2007 and most of these builders were happily investing in land and building etc. So in many cases there are properties in the name of the builders which can be embargoed if the builder has no liquid assets.

The architects involvement is also quite significant. If it wasn’t for that false piece of paper then the property would not have been able to be sold. The false certificate has been produced to deceive the notary, town hall, land registry & the person purchasing. The architect can also be taken to court and charged with a case that has had a terrible consequence on the purchaser of the property. The architect has a insurance that protects him in the case of his actions leading to a compensation procedure. If the case is won then compensation is most likely & it is possible that the architect will be put under disciplinary order or struck off the register and not allowed to faction in the capacity of architect for a long period of time or never again.

In the case of solicitors that have represented in this type of case then they are open for a lawsuit as well. You can read more about taking the lawyer to court in a previous publication.

What can be claimed?

The expense that has been created from the builder not supplying electricity, water, not finishing the instillations, roads. Also the effect that the situation has had on your health. Stress causes a lot of medical complications.

Another consideration is that now you own a property that is almost impossible to sell because of its illegal status. In the Valencian community if the property is less that four years old it can be demolished. If the builder has liquid assets then it might be possible for the judge to order him to pay you the total amount of  the cost of the property plus compensation. Perhaps this is a bit of a high hope but there is a provision in Spanish law for this.

I have a few very valiant clients that are going through this process, we have a long way to go but we are on our way. If you are in a similar situation, I would like to encourage you to get some legal advice as to what your options are. If you need legal aid there is a provision for you in Spain available in your area.

For more information please contact me.

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About Patrick Vine

I am a Englishman living and working in Spain as a property consultant dealing with the technical and legal aspects faceing the expat communities living in the south Alicante & north Murcia areas. I am married to a wonderfull Spanish girl called Inés and have 3 children. Jessica, Rubén & Joshua.
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