# URGENT help requested: are we in a pickle or strong position?



## andyviola (Aug 11, 2018)

Hello
this is urgent if any of you good people can assist. We are in the process of buying an appartment and we are cash buyers, whilst the seller has already moved to their new property. Coudn't be simpler, right?
Wrong! 
if it wasn't so tragic I would laugh!
We paid the *13k DEPOSIT* bang on time in November and a completion date of 12 December set. So just today we hear that the seller has a "technical problem" with releasing their mortgage and the matter has been sent to La Generalidad de Catalunya.
The thing is - can we claim double the deposit back as SEEMS to be indicated in the screenshots I show:final paragraph ????
The agent (of course) claims that a court would not enforce this. *Is she likely to be correct?*
Thanks!


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## davexf (Jan 26, 2009)

Hola, 

Having just sold a couple of weeks ago, there was a get out of jail clause that said in the event of something going wrong, both sides would work together to find an amicable solution. 

There were no problems so this never got tested. 

Davexf


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## andyviola (Aug 11, 2018)

davexf said:


> Hola,
> 
> Having just sold a couple of weeks ago, there was a get out of jail clause that said in the event of something going wrong, both sides would work together to find an amicable solution.
> 
> ...


Thanks I will now translate the whole 5 page document, which is a really difficult exercise technically as google translate does not accept "scanned PDF's" or Image files greater than 10 Mb (and this is 11 Mb). I will just have to use my phone camera instant translate thing that Google have released this year 😂


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## andyviola (Aug 11, 2018)

full doc * 2 - actually only 3 pages - attached.


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## andyviola (Aug 11, 2018)

SEE above ! hope you can help


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## Megsmum (Sep 9, 2012)

Are you not using a gestor or lawyer ? They will know. When we sell property here it's always been the case that double deposit due back IF seller pulls out but only if sufficient time and solutions have not come to fruition. You need proper legal advice . Best wishes


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## andyviola (Aug 11, 2018)

Thanks MM! No we didnt use a lawyer for this, as the process looked simple...and it has been. Until now. Goodness knows why someone could mess off paying their mortgage off when we offering full asking price in cash and they already moved out into their new property. I may try to find a gestor but I will have to know they are reliable by asking in local english facebook groups. As otherwise we may pick one who is as dodgy as the sellers
there is definitely no mention of sufficient time and solutions in the contract, the contract is actually (amazingly) quite easy to understand.

2 sentence wording in the attached, is that the thing you mention?


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## Megsmum (Sep 9, 2012)

I expect it is. We've had cases where there has been delays of up to a year due to various issues from bank delays to border disputes. All have eventually gone through. Unfortunately the wheels if bureaucracy turn slowly in Spain you now have the additional issues of bank holidays, Xmas and three kings. I'd be seeking professional advice and go from there. Take care


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## andyviola (Aug 11, 2018)

Megsmum said:


> I expect it is. We've had cases where there has been delays of up to a year due to various issues from bank delays to border disputes. All have eventually gone through. Unfortunately the wheels if bureaucracy turn slowly in Spain you now have the additional issues of bank holidays, Xmas and three kings. I'd be seeking professional advice and go from there. Take care


Ironically I have made 4 purchases in the UK in my long life, and never had a problem.

Two purchases in Spain - and both problematic. And nothing to do with language translation, In our main home purchase, they said they would leave the house empty apart from two boxes...when we got in, she had left every room with hundreds of books and clothes strewn around. And you think she might make an effort when we paid the full bleedin asking price, Cost us 500 you-rows to tidy up....


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## 1kaipa (Jul 20, 2019)

You really need a lawyer or gestor to sort this problem you can not expect to do this on your own especially without Spanish!!. Spain is a minefield of potential problems some of which people take advantage of some of which are genuine errors. Also folk are quite willing to wait months if not years to wait for solutions.


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## Overandout (Nov 10, 2012)

These clauses are completely normal, and legally enforceable.

You need to act now and send a formal communication claim the arras x2 formally. It is urgent that you do this by Burofax or other formal method as soon as possible and before he expiry of the original set time for completion.


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## andyviola (Aug 11, 2018)

Overandout said:


> These clauses are completely normal, and legally enforceable.
> 
> You need to act now and send a formal communication claim the arras x2 formally. It is urgent that you do this by Burofax or other formal method as soon as possible and before he expiry of the original set time for completion.


extremely useful practical advice


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## Overandout (Nov 10, 2012)

If the agent tries to say that it isn't applicable say that your lawyer has told you that according to the Civil Code Article 1454 you are within your rights to claim it.


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## andyviola (Aug 11, 2018)

Overandout said:


> If the agent tries to say that it isn't applicable say that your lawyer has told you that according to the Civil Code Article 1454 you are within your rights to claim it.


OMG you are so on the ball. Yes she already said that yesterday! Great, we will quote that to her


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## andyviola (Aug 11, 2018)

Overandout said:


> If the agent tries to say that it isn't applicable say that your lawyer has told you that according to the Civil Code Article 1454 you are within your rights to claim it.


Is it the case that sending of the Burofax does *not* OBLIGE us to proceed with the claim to 2 * arras ? we love the flat and ideally want them to stop messing around and sell it.


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## Overandout (Nov 10, 2012)

Depends on the wording, what you really need to do is state your intentions to claim as per your rights if the conditions are not met.
Take into account though that both parties are free to renegotiate the terms of the agreeement. So you coud propose a mutally agreed extension, but reserving your rights.


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## andyviola (Aug 11, 2018)

Overandout said:


> Depends on the wording, what you really need to do is state your intentions to claim as per your rights if the conditions are not met.
> Take into account though that both parties are free to renegotiate the terms of the agreeement. So you could propose a mutally agreed extension, but reserving your rights.


The contract was signed but not dated. We didn´t notice that there was an instruction to date it until just now. Will this invalidate the contract?


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## andyviola (Aug 11, 2018)

How does this sound? want to exert pressure whilst not forcing us to take legal action

Esta Burofax es relativa al contrato de compraventa de su inmueble en Carrer [redacted]
El contrato, firmado por ambas partes el 2 de noviembre de 2022 aproximadamente a las 12:00, da como fecha límite el 12 de diciembre de 2022 para el pago total y posteriormente recibimos un mensaje de Whatsapp del jefe de la Agente Inmobiliaria “Villarenc” confirmando que el Notario había sido reservado para esta fecha, a las 11:00. Pagamos el arras de 13000 Euros por esta propiedad durante la reunión mencionada el 2 de noviembre de 2022. 
El 7 de diciembre de 2022, escuchamos que no podrá cumplir con la fecha límite del 12 de diciembre de 2022, y el agente inmobiliario no pudo informarnos qué fecha posterior podría cumplirse. Estamos extremadamente decepcionados por esta noticia, y nuestra posición es que no esperaremos más allá del 31 de enero de 2023 para completar esta compra. Nos reunimos contigo el 9 de diciembre de 2022 en la oficina de Villarenc. 
Le enviamos este Burofax para informarle formalmente que si - durante la reunión del 9 de diciembre - no podemos acordar una fecha límite de 31 de enero de 2023, con un contrato adecuado redactado para hacerlo cumplir, entonces procederemos a hacer cumplir la cláusula segunda del tercer Pacto desde el documento legal y firmado “Contrato de Arras Penitenciales”, de fecha 2 de noviembre de 2022. Esto establece que tenemos derecho a recibir las Arras doblado. Este es nuestro derecho según el Código Civil Artículo 1454.


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## Overandout (Nov 10, 2012)

Good enough. But you haven't signed a "contrato de compraventa", you have signed a "contrato de arras", you should correct that.


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## Overandout (Nov 10, 2012)

I guess I should add that I am not a lawyer, just someone who reads a lot of legal texts and laws for my job, so please don't think my advice is of professional quality when it comes to house buying contracts!
I'm just another poster on a forum.


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## trotter58 (Feb 8, 2017)

I feel sorry for the O/P but this does highlight the need for your own independent lawyer when buying a property in Spain.

Do not use any lawyer recommended by the estate agent and make sure that your lawyer reviews and (probably) rewrites the contract to safeguard your interests before you sign anything or pay any deposit. The estate agent is only interested in getting your deposit and is unlikely to return it if things go wrong. Allowing the estate agent to write the sales contract is a big mistake.


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## Overandout (Nov 10, 2012)

trotter58 said:


> I feel sorry for the O/P but this does highlight the need for your own independent lawyer when buying a property in Spain.
> 
> Do not use any lawyer recommended by the estate agent and make sure that your lawyer reviews and (probably) rewrites the contract to safeguard your interests before you sign anything or pay any deposit. The estate agent is only interested in getting your deposit and is unlikely to return it if things go wrong. Allowing the estate agent to write the sales contract is a big mistake.


I follow the general tone of the sentiment, but the clause in the contract the OP has is precisely reflecting that established in the law I quoted, so I don't think this is a situation that a lawyer would have avoided.

The only failure really is the advice of the agent, but when are agents impartial?


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## andyviola (Aug 11, 2018)

trotter58 said:


> I feel sorry for the O/P but this does highlight the need for your own independent lawyer when buying a property in Spain.
> 
> Do not use any lawyer recommended by the estate agent and make sure that your lawyer reviews and (probably) rewrites the contract to safeguard your interests before you sign anything or pay any deposit. The estate agent is only interested in getting your deposit and is unlikely to return it if things go wrong. Allowing the estate agent to write the sales contract is a big mistake.





> I follow the general tone of the sentiment, but the clause in the contract the OP has is precisely reflecting that established in the law I quoted, so I don't think this is a situation that a lawyer would have avoided.
> 
> The only failure really is the advice of the agent, but when are agents impartial?





> I feel sorry for the O/P but this does highlight the need for your own independent lawyer when buying a property in Spain.
> 
> Do not use any lawyer recommended by the estate agent and make sure that your lawyer reviews and (probably) rewrites the contract to safeguard your interests before you sign anything or pay any deposit. The estate agent is only interested in getting your deposit and is unlikely to return it if things go wrong. Allowing the estate agent to write the sales contract is a big mistake.





> Like
> Overandout
> Overandout
> ·
> ...


Thanks. All worked out perfectly! We hired a lawyer and she negotiated a deal to compensate us by 600 euros per month for each day the property is not sold after Dec 12. The administration of Catalonia needs to OK a submission that was missing. The sellers should have offered the appartment to the council first for social housing. Agent should have told seller this. Only thing that can go wrong now is council wanting it but as we probably paid over the odds (idealista average price said) for one of the very few well maintained properties we saw, this is unlikely........
Spain is amazing for getting help quickly...when payment involved😂😂😂


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## Overandout (Nov 10, 2012)

Thanks for letting us know how it turned out. Hope you get your place eventually!


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## Montana2Spain (May 20, 2016)

Having a gestor you can trust is. from my experience, ESSENTIAL to living in Spain. I can't imagine doing anything legal in Spain without one. It is the best advice I was ever given. I hope it works out for you in the end!


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## andyviola (Aug 11, 2018)

Montana2Spain said:


> Having a gestor you can trust is. from my experience, ESSENTIAL to living in Spain.  I can't imagine doing anything legal in Spain without one. It is the best advice I was ever given. I hope it works out for you in the end!


well we were cash sellers and they had already moved to their new place (the flat above). So it seemed oh-so-simple. We are not losing rent due to the deal we brokered.


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## Montana2Spain (May 20, 2016)

andyviola said:


> well we were cash sellers and they had already moved to their new place (the flat above). So it seemed oh-so-simple. We are not losing rent due to the deal we brokered.


Excellent. Still can't stress enough to get yourself a trusted gestor. They aren't expensive and this is the perfect type of situation to get them involved to reduce headaches.


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