Tuesday, 24 March 2009

Mike Kerr paid nearly £200,000 as a deposit for two holiday homes on the Marbella Vista Golf is fighting to get his cash back

Mike Kerr who paid nearly £200,000 as a deposit for two holiday homes on the Costa del Sol is fighting to get his cash back after the properties were deemed illegal.
Mike Kerr, a design engineer from Knaphill, signed a contract with developer Marbella Vista Golf, which is owned by Moleón, in 2003 to build two dream properties in Elviria, near Marbella, on the southern coast of Spain.Mr Kerr has spent 6,500 Euros (more than £5,900) in legal fees so far, as well as paying a total deposit for the two properties of 200,000 Euros (around £182,000). The total cost of the two holiday homes is 642,000 Euros (more than £590,000).But his dream turned into a nightmare when the properties were branded illegal in 2005 because the developer breached the planning permission. Since then, Mr Kerr has been caught up in a succession of court hearings and legal wrangling.He said: “I wanted to make an investment and have a couple of holiday homes. The developer had planning permission for 30 town houses but built 192 apartments.”Mr Kerr explained that the planning permission was retracted so when the properties were completed, Marbella Vista Golf was then unable to obtain a licence for first occupation.He said: “If they can’t get that, we can’t officially live there or rent out the properties and they are almost impossible to sell. “I tried to get a mortgage close to completion and was told by the bank that the properties were illegal and I would have to get a solicitor.“I asked the developer to cancel the contract and return the deposit but Marbella Vista Golf refused because it considered the properties to be complete and said we should go ahead with completion.“But it was illegal so I tried to enforce the bank guarantee.”Bank guarantees from developers have been compulsory in Spain for 40 years for off-plan properties — those that have not been fully constructed at the time of purchase. The guarantees ensure that if a developer does not build on time, goes into administration or does not build at all, buyers can have their money returned. Mr Kerr said he had a guarantee with Spanish bank, Banco Popular Hipotecario (BPH). He added: “I tried to get the deposit back. We spoke to the lawyer who said we could get our deposit back but the bank said no.“You hear about developers not standing up to their side of the contract but banks issue guarantees all the time and you would expect them to honour them.”Mr Kerr and a group of people involved in disputes about five additional properties took the bank to the Court of First Instance in Madrid.He said: “We won the first time but BPH appealed to the High Court and the original result was overturned. “The bank said the properties were not illegal and were licensed. We appealed to the High Court and we lost but there were mistakes made. The court would not re-open the case but said we did not have to pay legal fees.“We went to the Supreme Court but it refused to hear the case, stating it did not deal with that type of case.“We are now taking the case to the Constitutional Court to say it was not heard properly.”As yet, a date has not been set for this hearing.He said: “I have spent a couple of hours a day on the phone and have had to pay for trips to Spain.“It absorbs the holiday as I have to attend a couple of meetings each time I visit Spain and there are the invisible costs because I am self-employed. But there are a lot of people who are a lot worse off than me and have put their whole life savings into the project.”Ruth Genda, from Leicestershire, is in the same situation as Mr Kerr. She presented a petition to the governor of the Bank of Spain, who said in an article in the Spanish newspaper El Pais that banks should be honouring guarantees.A petition has also been submitted to Prime Minister Gordon Brown asking him to intervene and help the group of British buyers.Mr Kerr has also been in touch with members of the European parliament who represent the south-east area.But he said: “They have not been able to assist us in any way. They have responded to letters but they will not get involved in individual cases.But the issue involves more than 30,000 apartments in Spain and it is in no way individual.”Speaking to the News and Mail, Víctor Francisco Sánchez, a solicitor representing the development company, denied the properties were illegal and said the licence of first occupation had been approved provisionally and was on the verge of being approved definitively.A spokesman for the bank said he was unable to talk to third parties about customers.

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