The Law grants a special protection to home buyers who grant advances to promoters as economic assets for the construction.
Both in the repealed Act 57/1968 and in the first additional provision of the Act 38/1999 in force, the promoter’s obligation to ensure the refund of the payments received on account through insurance or bank guarantee. This way, the refund of the payments supplied by the buyers remains ensured in case the construction of the dwellings does not start or it is not carried out within the agreed period for the handover of the dwellings (common situation due to the financial crisis, with the numerous promoters entering in contest).
In accordance with the Act, the advances buyers pay to the promoters must be deposited in a “special” bank account. In order to open such account, the corresponding credit institution, under its responsibility, must ask the promoter to provide the insurance or bank guarantee abovementioned.
In view of the above, it looks like payments advanced to the promoter will always be ensured, either by insurance, bank guarantee or by the responsibility the credit institution incurs if not upholding its duty in requesting said warranties for the opening of the “special” bank account.
Meanwhile, what happens if the promoter receives advance payments from the buyers in a “normal” bank account, which opening does not oblige the bank to ask for the insurance or bank guarantees? Should the promoter equally respond in a caring way in front of the buyers?
In this respect, the Supreme Court has recently spoken out in its judgement 733/2015, of 21st December, which establishes the extent for interpreting the expression “under its responsibility” (referring to the obligation the Law attributes to the credit institution of requesting the promoter for the insurances and bank guarantee in order to open a “special” bank account).
In that regard, the Supreme Court establishes that the responsibility attributed by the Law to the credit institutions is not limited to a strict duty of asking for an insurance or a bank guarantee to open a “special” bank account, but it entails in fact a particular duty of supervising the promoter, determining as a case law that “credit institutions authorising deposits of buyers in a promoter’s account without asking for a special bank account and the corresponding warranty will be responsible for buyers’ total amount of the advanced payments deposited by the buyers in the account or accounts the promoter has in said credit institution”.
Vilá Abogados
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4th March 2016
