Claim for the price of the house not delivered
There are many Spaniards who agreed to purchase a home off-plan, paying the corresponding reserve price, and subsequently have been left without receiving said promised home or recovering the amounts delivered back in the day.
Many developers and construction companies have gone bankrupt, entering bankruptcy proceedings, leaving real estate developments unfinished. Those affected are in that devastating situation of having lost the amounts paid, and not being able to claim a company that is in bankruptcy .
However the courts have granted all of them two ways out:
- The claim against the insurance company that guaranteed the construction of the houses through an insurance policy. The companies that have most frequently subscribed this type of policies for housing development have been ASEFA and HCC.
- The claim against the banking entities in charge of receiving payments for the purchase of homes.
Although both solutions are viable, it seems reasonable to undertake the first as long as the aforementioned insurance policy exists. For years an interesting judicial dispute was fought that has finally concluded with a unanimous position of the entire Spanish judiciary, following the criteria established by the Supreme Court, and that grants the reason to the consumers and those affected against the position of the insurance companies.
There are multiple precedents of judicial resolutions in which claims against insurance companies by members of housing cooperatives have been upheld or by others affected by real estate developments. The courts have addressed various aspects related to the liability of insurers that assumed commitments to reimburse amounts paid on account of the purchase of homes.
The main reason given by the insurers for refusing to respond to the reimbursement of the amounts paid on account of the price, was to deny that the surety bond insurance policies were an insurance of the regulated in the Law 57/1968< /a>; precisely because this is the law that allows us to claim the return of the amounts delivered on account of the price.
On this basis, the insurers affirmed that the insurance contracts guaranteed the use in the project of the amounts paid on account of the price, but they denied that the insurer would have to indemnify those affected in the event that the delivery of the promised home does not materialize.
This thesis was not rejected by all courts until the Supreme Court ruling on September 13, 2013 definitively settled this discussion, dismissing the argument of insurance companies.
By ruling that the bond insurance policy arranged between cooperatives and Insurers derives from Law 57/1968, it is inferred that the insurer is not only responsible for the use of the amounts collected by the promoter; it is also responsible for the reimbursement of the price to the insured in the event that the construction is not completed and the homes are not delivered within the agreed deadlines. The 1st Plenary Chamber of the Supreme Court in its judgment of September 13, 2013 recognized this clearly:
“It is so to such an extent that, even if Law 57/68 were dispensed with and litigious insurance was considered voluntary and not mandatory , the insured would also have the right to be compensated for having been guaranteed in the contract, in a clear way, the good end of their advances, …”
The Supreme Court expressly rejected the insurer’s argument that liability coverage was not specified in the individual insurance certificate delivered to each of the cooperative members . The Supreme Court has come to grips with this, stating the irrelevance of the text of said individual certificates in terms of not recognizing the liability coverage for non-completion and delivery of the homes since they are unilateral documents not signed by the insured.
Separate mention deserves the fact that the individual guarantee certificates held by those affected establish, depending on the case, some type of limitation. Thus, it is common for these certificates to indicate a guaranteed limit figure. The courts have also agreed that although the individual guarantee certificates issued by the defendant contain certain limitations of liability on the part of the insurer, such limitations are ineffective.
Insurers must respond to those affected by reimbursing the amounts paid on account of the purchase price of the planned homes for the mere fact that the construction of the houses has not been carried out same within the agreed terms.
In addition, the fact that the construction company, cooperative or insurance company had terminated, canceled or terminated the insurance policy cannot negatively affect the owner. All those affected are beneficiaries of this insurance, and the power to resolve their responsibility unilaterally cannot be left to the discretion of the insurance company.
What amounts can be recovered?
Those affected can recover all the amounts paid plus interest. As the only exception, applicable exclusively in housing cooperatives, we must point out that the amounts disbursed as share capital cannot be claimed.
Since so much time has elapsed since the payment of the amounts on account of the price of the house, the interest that can be claimed in all cases will certainly be high.
How long can you claim?
After the legal reform of the limitation periods, those affected will not be able to claim beyond 2020. That is why it is convenient to make the claim as soon as possible, and thus avoid incurring the prescription of actions.
