Liability of credit institutions for sums advanced into an account opened by the developer

The Supreme Court establishes the liability of credit institutions for amounts paid into an account opened in the name of the property developer.

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The Supreme Court, Civil Chamber, has established that in the sale and purchase of houses there is a responsibility of the bank in the case of not having a special account and guarantee.

The Court considers that in the sale and purchase of homes governed by Law 57/1968,k credit institutions are liable to the buyer if they have not required the developer to open a special account duly separated and guaranteed as required by the aforementioned law.

As the deposit document states the destination of the amounts, their non-inclusion in the special account does not exclude the insurance coverage, as it is an obligation imposed on the seller and should be demanded by the bank.

As the aforementioned decision literally states, the "liability" that art. 1-2 of Law 57/1968 imposes on credit institutions belies their character as third parties outside the relationship between buyer and seller. On the contrary, it implies the legal imposition of a special duty of vigilance on the developer to whom the construction loan is granted so that the income in the only account he has with the institution, especially if it comes from private individuals as in this case, is transferred to the special account that the developer must open in the same or another institution, but in any case, constituting the guarantee that the corresponding institution will have to "demand". In short, it is a question of active collaboration by the credit institutions because otherwise, as the judgments of the Provincial Courts cited in the grounds cited above reason, it would be sufficient to receive the purchasers' income in a single account of the developer, intended for multiple purposes, for the energetic and imperative system of protection for purchasers in Law 57/1968 (EDL 1968/1807) to lose all its effectiveness. For this reason, even if it is true, as the contested judgment considers, that the developer could have taken out insurance or a guarantee with another entity, it is not correct to understand that, even if it is stated in the deposit document itself the purpose or reason for the amounts advanced ("reservation of housing and 20% housing"), this did not result in "any legal obligation" for the co-defendant credit institution. On the contrary, precisely because it knew or should have known that the buyers were paying in amounts on account of the price of the properties in the development, it had the legal obligation to open a special and separate account, duly guaranteed, and for not having done so, it incurred the specific liability established in art. 1-2 of Law 57/1968.

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