BANK GUARANTEES FOR DOWN PAYMENTS MADE ON DWELLINGS DURING CONSTRUCTION. RECENT SUPREME COURT OF SPAIN RULING ON THIS MATTER.

Act 57/1968 of 27 July, on the receipt of sums of money prior to the construction of off-plan properties has recently been repealed by the new Act 20/2015 of 14th June, although Act 57/1968 is still applicable to the down payments for off-plan purchases made before the new Act 20/2015 came into effect. 

Act 57/1968 consists of only six articles because the additional seventh article was eventually repealed. Despite its short length, this act has become a subject of widespread legal controversy due to its scope regarding the protection of purchasers of off-plan dwellings against a breach of the sales agreement by the developer. This is particularly true on the following cases:

·         The developer has not taken out a general bank guarantee certificate pursuant to the provisions of the law.

·         Despite the fact that a general bank guarantee certificate or an insurance contract has been taken out pursuant to the provisions of the law, the down payments made have not been duly deposited in the ‘special’ account opened for that purpose.

·         Purchasers have not been granted individual bank guarantee certificates. 

·         The developer opened a bank account to deposit the down payments but the bank qualifies that account as an ‘ordinary’ account.

Throughout 2015, the Plenum of the Supreme Court of Spain made five rulings on this matter, thereby establishing case law on the scope of the protective nature of the aforementioned act with regard to consumers.

In first place, we have the ruling made by the Plenum of the Supreme Court on 13th January, 2015, which sets forth the legal principles by which the obligation to deposit advance payments made by purchasers in the ‘special’ account opened by the developer is the sole responsibility of said developer and/or seller. Purchasers may not be forced to deposit advance payments in a ‘special’ account in order for them to be considered guaranteed.

The second ruling, made by the Plenum of the Supreme Court of Spain on 16th January, 2015, analyses the nature of the banks’ responsibility under the protection of Act 57/68. That is, when a developer is allowed to open an account for the receipt of advanced payments made by potential purchasers or by financial entities without ensuring that the guarantees established by the aforementioned Act are met, then the corresponding bank shall be liable to said purchasers. The deadline for claiming said amounts is 15 years.  

The third ruling was made by the Plenum of the Supreme Court of Spain on 30th April, 2015. As already established in the 2001 or 2004 rulings, the aforementioned act is of a protective nature for advance payments whether they have been deposited in the entity’s ‘special’ account or not, since the imperative nature of Act 57/68 enforces the agreement between the developer and the insurer.

The fourth ruling made by the Supreme Court of Spain on 23rd September, 2015 sets forth the legal principles according to which, in consideration of the protective nature of the aforementioned Act, purchasers that have made advance payments shall not be liable for the grossly negligent or willful conduct of the developer when failing to request individual bank guarantee certificates. Therefore, the absence of corresponding individual bank guarantee certificates shall not alter the obligation to refund advance payments, plus accrued interests, to purchasers who signed a sales agreement and deposited said amounts, under the protection of the group policy.

Finally, the recent ruling made by the Supreme Court on 21st December, 2015 that sets legal doctrine in the following cases: “for all purchases made under the provisions of Act 57/1968, when the bank accepts and deposits down payments from buyers to a promoters´ account without requiring the opening of a ‘special’ account and the issuance of the prescribed legal guarantees, the bank will also be liable for the reimbursement of the down payments amount to the buyers”

Our law firm, Imont Legal Services, has been, for  many years, defending buyers against banks and financial entities for the claims on the reimbursement of down payments made for off-plan dwellings that were not covered by the corresponding bank guarantees. For that reason, we continuously monitor all the Supreme Court rulings in that regards, confirming that they have been favorable to our clients´ interests in all cases and that our success rate on this subject is 100%.