Steps to take if the Developer does not Finish the Property on the Completion date

In 2001 we decided to buy an off plan property in Torrevieja. We were impressed with the service and the relaxed sales pitch of the estate agency and were given a completion date of December 2003, with a possible three month over run.We questioned, at the time, what the situation would be should the builder go beyond March 2004. We were told that, "You have one of the best builders in Spain they do not overrun".

Foolishly, we left it at that and took the representatives at their word.We have since been given dates of June 2004, July 2004, mid September, all to no avail, and then decided to visit the site ourselves in the hope of getting some answers to the questions regarding the delay and perhaps get a little closer to our dream home.We would appreciate your advice as to what our expectations should be. Are we being unreasonable expecting action from the estate agent? Should we be seeking compensation? We thought summer 2004 would be spent in our own property but we have spent the summer lurching from one false hope to another. Who is responsible for ensuring that the roads and amenities are ready?

Is it the builder or the Local Council?Our situation is not unique, in fact it appears to be common place. Builders do not seem to be able to cope with the demand. Letters, phone calls and emails seem to have made little difference. Information is sparse.We have been sent photographs of our property, but only because we asked for them. The latest reason we have been given for the delay is "access to the property" with no detail or explanation. Disappointment and frustration are building and what started as a wonderful adventure is now expensive nothingness.

What can we do? We would be grateful for any thoughts, comments or advice.

Des Sparkes answer:
It is difficult to give you specific advice as I do not have all the facts in your particular case. You say that you were given a completion date of December 2003 with the possibility of a 3 month over run. You say that you asked Atlas what the situation should be if they over run the 3 month period and took them at their word.

I assume that you signed a purchase contract when you bought the property and in this contract there should be clauses specifying the completion date, and the consequences should this date not be met. It is normal for a the buyer's Spanish lawyer / solicitor to ensure that there is included in the purchase contract a clause that specifies the daily rate of compensation should the completion date be broken.

If your purchase contract does have a compensation clause for the breach of the completion date, and your attempts at obtaining compensation from the developer fail, it is advisable to obtain a record of your claim.

This is done by using a Public Notary to make the claim on your behalf which will provide you with an official record of your claim. If you still not compensated by the developer and the property is finally completed late it is advisable that you pay the final amounts and take legal possession of the property.

Then you can make a formal legal claim for the compensation due. If it becomes obvious that the developers are not going to be able to complete the property because of a problem with road access it is essential that you employ a lawyer immediately to look into the details of your case, as there is the possibility that the vendor is having problems completing his side of the sales agreement.

You will need specific advise in this situation which I am unable to provide due to the limited facts I have of your case.If you used a Spanish lawyer on your purchase that lawyer / solicitor should be able to advice on the steps to take. If you did not use a lawyer I recommend that you find an independent Spanish lawyer to act on your behalf as soon as possible to deal with this matter on your behalf.

I always recommend to clients not to deal directly with estate agents when purchasing a property, and to get their lawyer to thoroughly check what they are told by the agent, and ensure that all important terms agreed with the vendor are included in the contract. Your lawyer should also include clauses in the purchase contract to protect you should the vendor break the terms he has agreed.

(The above answer was written by Des Sparkes (Solicitor) who works in association with Spanish property lawyers in Marbella , Malaga , Spain and who writes the Spanish lawyer answers to readers letters in Living Spain Magazine.)