It is a legal requirement in Spain that the developer must provide a Bank Guarantee or Insurance Certificate to the purchaser covering ALL payments made in advance for the purchase of a property.
The Bank Guarantee or Insurance Certificate must be issued immediately the funds are received in the developers Bank or Savings Bank account.
Being issued with a Bank Guarantee or Insurance Certificate is the purchasers legal right and although there are costs involved in setting up these guarantees the developer must not make a charge to the purchaser for the Bank Guarantee or Insurance Certificate.
Deposit funds paid in advance for a property must be held in a Bank or Savings Bank Special Account (Cuenta Especial). The Special Account must be separate from any other account held by the developer and must only contain funds to be used for the construction of the property. Details of the Special Account together with the name of the Bank or Savings Bank must be detailed in the Sales Agreement / Purchase Contract.
All advertising and promotional material published by the developer that refers to amounts being paid in advance must state in which Bank or Savings Bank the deposits will be held and give details of the Special Account in which the funds will be secured and protected.
The Bank or Savings Bank must demand and ensure that the Bank Guarantee or Insurance Certificate is issued. It is the responsibility of the Bank or Savings Bank who accepts the off-plan deposit to ensure that the Special Account is opened and the Bank or Savings Bank must either issue the Bank Guarantee, demand that the Bank Guarantee is issued or verify the existence of a Bank Guarantee or Certificate of Insurance to fully cover the off-plan deposit funds held in their custody.
The Bank or Savings Bank are the guardians of LEY 57/68. If the Bank or Savings Bank accept funds paid in advance by purchasers and fail to protect those funds in a Special Account or fail to verify that the Bank Guarantee or Insurance Certificate is issued then they are guilty of Gross Negligence and action may be taken against them for lack of Professional Due Diligence according to LEY 57/68 Article 1.2
A Bank Guarantee or Insurance Certificate must not have an expiry date and does not have to be ‘renewed’.
The Bank Guarantee or Insurance Certificate only expires when the Certificate of Habitation (Licence of First Occupation) is issued by the local Town Hall. At this point the Bank Guarantee is no longer valid and it is therefore in the purchaser’s interest to complete the purchase as quickly as possible after the issue of the LFO / COH.
If the construction does not commence or finish by the deadlines set out in the Purchase Contract then the purchaser has the right to execute the Bank Guarantee or Insurance Certificate and receive a full refund of the deposit together with the addition of interest at the Legal rate as detailed in the General Building Act 1999 LEY 38/99.
The Lawyer acting for the Purchaser has a duty to ensure the account to which the deposit funds are paid meets the strict requirements of LEY 57/68, and that the Purchaser’s deposit funds are only paid to the Developer’s Special Account after details of the Bank Guarantee or Insurance Certificate have been confirmed by the developer and guarantor. Once the funds are transferred to the developers Special Account the Lawyer must make every effort to obtain the Bank Guarantee or Insurance Certificate.
If the Purchaser pays the property deposit to the Lawyer’s client account and the Lawyer forwards those funds to the developer without securing the Bank Guarantee / Insurance Certificate and without establishing that the developers account to which they are sending the funds complies with the strict requirements of LEY 57/68 then the Lawyer may be negligent and guilty of acting with a lack of due diligence.
The Purchaser may then have a right to make a claim to the Lawyers Legal Indemnity Insurance for the loss of deposit.
If you have property problems, do not hesitate to contact H&G. We are here to help you.