Property deposit returned on basis mortgage not approved

mortgage subjugation spain

The Supreme Court has ruled that ‘an obscure’ clause in a pre-purchase contract for the purchase of property from a construction company was sufficient to render the entire contract invalid and force the return of the deposit monies previously handed over by the prospective purchasers.

The Court was at pains to distinguish the clause that appeared in the purchase contract in the case before them, with those that often appeared in similar contracts, and which the Court had previously ruled were merely incidental terms of the contract and were not capable of invalidating the contract.

Subrogation Clauses

The clause under scrutiny stated that the buyer could, if they so wished, ‘subrogate’ the existing mortgage of the seller of the property. In Spain ‘subrogating a mortgage’ is quite a common practice for purchasers whereby, instead of arranging their own new mortgage, the buyers essentially take the place of the then current owner of the property and retain the existing mortgage.

However, in this particular case, by virtue of the inclusion of the clause in the contract, the construction company had in fact made a very attractive offer  whereby , ‘ …in any case, if [the party reserving the property] so wishes, the existing mortgage will be subrogated…’.

On the basis of this interpretation of the clause, it was not a secondary or incidental term of the contract, but the purchaser was in reality being guaranteed finance for the purchase, the absence of which in the end frustrated the objective of the contract.

 

Return of the Deposit Monies

The Court, later in it’s judgment, remarked that the seller of the property always had the option to make an agreement with it’s bank limiting the latter’s future liability to the market value of the property and thereby avoid complications arising from the banks refusal to accept the addition of the purchaser to the existing mortgage as a result of their poor financial rating.

In this case it was therefore correct to rule that the contract was invalidated with the result that any monies that had been deposited to reserve the property should be returned.

So, if you find yourself facing the loss of a substantial deposit for failure to obtain a mortgage, it is certainly worth checking the ‘Contrato de Arras’ or pre-purchase contract to see if any such clause is present.

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48 Lawyers Offering Mortgage Disputes Services in Spain

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  • Michael Ha
    Michael Ha, Fuengirola

    Very helpful and informative, thank you Alvaro


    Jun 24, 2019
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    Francisco was extremely helpful. Very satisfied with the service. I would definitely recommend it to friends.


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    Rosa always responded promptly to any email I sent.


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    Mar 14, 2019
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    No, it was excellent


    Feb 28, 2019
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    No improvements necessary. Doing a great job, thank you.


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    Carlos is a professional and respectful lawyer, he has helped me a lot and with my police clearance...i would like to recommend him to everyone! Thanks.


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    Very satisfied with the service provided. Cristina is bilingual.


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    Very good. Made me feel very comfortable in a difficult situation and helped me resolve the issue in a calm, efficient and cost effective manner. Highly recommended.


    Feb 15, 2019
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    Consuelo was extremely helpful, she couldn't have done more. I would definitely recommend her to friends.


    Feb 15, 2019
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    Marcus Bond, Fuengirola

    Proactive, great communication, thoroughly recommend.


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    Jason Baker, Estepona

    Alvaro was transparent throughout the process and instilled a confidence in me that he would get the job done, which he duly did!


    He was persistent and diligent with his approach, which meant that an issue that i had for 2 years was no longer one.


    Regarding the above KPI's of measurement, he was top marks for all of them. I am genuinely satisfied with the service.


    Feb 13, 2019
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    Alison Hamilton, Fuengirola

    Kept us informed every step of the way, very efficient and very pro active.


    Absolutely excellent!


    Feb 12, 2019
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    Candy, Cadiz

    Francisco was very responsive, supportive and understanding.


    Unfortunately, I had to use another lawyer who has helped me in another case.


    Feb 11, 2019
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    Lisa Kay, Catral

    A nice friendly person that made me feel at ease, and made me feel like I wasn't wasting his time.


    Would not hesitate to use again. Thank you.


    Feb 08, 2019
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    Paul McAteer, Ukraine

    Jose was excellent in every way and he will now tend to all our business in Alicante


    Feb 05, 2019
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    So lucky to have found her at a difficult time.


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    Jan 29, 2019
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    Jan 23, 2019
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    Vivien Yao, UK

    Worked with Rafael for a project. He is very professional, efficient and helpful.

    Thanks Rafael!


    Jan 17, 2019
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    Lee, Uk

    Absolutely spot on service, very impressed!


    Jan 14, 2019
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    Florence, Fuengirola

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    Jan 08, 2019
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    Clear information throughout, well explained and always had my confidence.


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    Jan 07, 2019
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    Jan 07, 2019
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    Simon Luddon, Alicante

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    Jan 07, 2019
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    Jim & Susan Heron, Dundee, Scotland

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    Jan 07, 2019
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    Jan 07, 2019
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    Paul Hutchinson (Mallorca)

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    Ian Doig (Benidorm)

    Excellent service. They know their business!


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    Martin Kiersnowski, Nerja

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    Samuel S Perrie, Scotland

    Great service, always very attentive communication, was excellent via email and Skype, always let me know what was happening stage by stage.


    Nov 20, 2018
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    David W Baker, Malaga

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    Colin Wilson, Australia

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    When there was a delay in responding she did offer an apology which was appreciated. Rosa always instilled a sense of confidence that she knew exactly what was going on, what I was asking, and what the applicable law was.


    When not a Spanish local and dealing with her remotely, this provided great comfort in a sensitive matter.


    Oct 30, 2018
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    David Edwards, England

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    Oct 17, 2018
  • Andrew Morecroft
    Andrew Morecroft, Lubrin

    Juan was extremely helpful during every part of the purchase. As I was buying an older property there were slight complications but Juan explained every issue and managed to work through the difficulties with supreme efficiency.


    Also there was a ridiculous situation with my Spanish bank account where I could not access the money even though it was in the account. Thankfully I had given Juan power of attorney and he managed to sort-out the problem.


    He went above and beyond the call of duty and I am very grateful for all his help. I would strongly recommend him to anyone looking to buy in the Almeria region.


    Oct 15, 2018
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    Manoochehr Jafari-Nahad, UAE

    Jose-Antonio was extremely helpful and prompt and also it was helpful that he could be contacted via social media like Whatsapp


    Oct 13, 2018
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    Michele Jansen van Vuuren, Benajarafe

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    Only issue was that some of the documents I needed to provide were not mentioned. However, would definitely recommend his services to friends.


    Oct 13, 2018
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    John Fraser Dunfield, San Francisco

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    Oct 12, 2018
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    Oct 09, 2018
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    David McChesney, Puerto Banus

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    Oct 03, 2018
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    Martha Kimes, Scottsdale, Arizona USA

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    I was supremely happy with his legal services.


    Oct 02, 2018
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    David Roots, England

    We were very satisfied with the service we received. Rosa dealt with the matter in hand promptly and efficiently.


    Oct 01, 2018
  • David K
    David K, Barcelona

    Oscar was very kind, professional and fair. He was able to help me with my problem and he was very determined that he would.


    Oscar is very competent, polite and showed a lot of effort to solve my problem. I strongly recommend him.


    Sep 26, 2018
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    Tauri, Estonia

    Very satisfied with the service. Francisco is bilingual English-Spanish and was always quick to respond and was very professional at all times.


    Sep 25, 2018
  • Mohamed kheder
    Mohamed kheder, Dublin, Ireland

    Every thing was great ... Rosa was really helpful and understanding. And I see the value for money was good enough.. of course I would recommend it to any of my friends.


    And I would like to have the chance to thank Rosa and the whole company for everything.


    Sep 24, 2018
  • Darren & Gemma Nesbitt
    Darren & Gemma Nesbitt, Valencia

    Inmaculada has been of excellent service to us, as a family and in helping to set up a business in Spain. She has now undertaking several project for us and has delivered high quality on all of them. Perfect service!


    Sep 11, 2018
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    Patsy Valentin, Granada

    Extremely accommodating and highly professional and very pro active. Excellent result and service. Highly recommended.


    Sep 11, 2018
  • Jovie
    Jovie, Malaga

    My lawyer Alvaro was extremely helpful and very efficient. I would definitely recommend his services to friends.


    Sep 05, 2018
  • Alena Beerman (Santander)
    Alena Beerman (Santander)

    Jaime was wonderful - at first I had no idea how I'd get the support I needed in a country I don't know well and a language I'm not fluent in, and he made it a breeze. Would definitely use them again.


    Aug 24, 2018
  • David Grundy
    David Grundy, UK

    Jose was very polite and we received an excellent service from him.


    Nothing was to much trouble and his communication was 2nd to none. Highly recommended!


    Aug 24, 2018
  • Brian Talbot (Santander)
    Brian Talbot (Santander)

    Jaime dealt with my father's inheritance in a speedy and most professional manner and I have no hesitation in using his expertise again.


    Aug 20, 2018
  • Mario Klappholz
    Mario Klappholz, Miami, Florida

    Inma was very helpful, always happy to assist. I particularly appreciated her professionalism. I would not hesitate to recommend her services to friends.


    Aug 16, 2018
  • Daniel Spitzhorn
    Daniel Spitzhorn, Spain

    Miguel in Oviedo helped us during the process of buying a flat in Asturias. He was just brilliant!


    Aug 14, 2018
  • Tracey Iliffe Bradley
    Tracey Iliffe Bradley, UK

    Rosa dealt with everything efficiently and promptly and went beyond our expectations by helping us to open a Spanish bank account and deal with other minutiae.


    Aug 14, 2018
  • Erslaan Ahmed
    Erslaan Ahmed, Bangladesh

    Gave very good advice and provided an excellent solution. Inma is very professional in her work. I would recommend her services to friends.


    Aug 10, 2018
  • John Ryan
    John Ryan, Derby, England

    A perfect relationship between client and professional. Nothing was too much trouble.


    Went over and above his job and more. I would only use his services if I need legal services. I were very lucky to find Jose first time round.


    Thank you jose


    Aug 08, 2018
  • Michael Harrison
    Michael Harrison, Urb. Camposol Mazarron Murcia

    Maria was extremely helpful and professional, and put herself out to satisfy my needs.


    I contacted her on a number of occasions and always had very good advise on costs etc.


    Her English was impeccable and could always be understood.


    Jul 27, 2018
  • Michael Bates
    Michael Bates, UK

    Francisco was very easy to deal with. Very professional. Would not hesitate to recommend him to friends.


    Jul 27, 2018
  • Vicky Balinas (Valencia)
    Vicky Balinas (Valencia)

    My husband and I were very happy with the service we received from our lawyer Inma, she went above and beyond to make sure everything went smoothly while we was buying our first property in spain.


    We will use them again for anything legal we need and would highly recommend them to anyone. Thank you for your great service.


    Jul 26, 2018
  • Janet/Alex Olsen
    Janet/Alex Olsen, Newcastle

    Overall the service provided by Oliver was exceptional.


    My mother and I couldn't of asked for more from him as he sorted out our family affairs. His attitude, attention to detail and promptness while helping us were second to none.


    His English is top notch and his way of explaining and or guiding you through what needs to be done makes the whole experience easier than expected.


    We'd recommend Oliver to anyone in need of his expertise while dealing with issues in Tenerife.


    Jul 25, 2018
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