What Act 20/2015 guarantees
Act 20/2015 rewrote AD 1 of Act 38/1999 on amounts paid on account. The guarantee obligation:
- Covers all amounts paid before property delivery (reservation, deposit, milestone payments, applicable VAT).
- Form: bank guarantee or surety insurance.
- Named beneficiaries: each buyer with their nominative guarantee.
- Special account: amounts must be paid into the developer's account earmarked for the project, with control by the depositary bank.
- Term: the guarantee covers until delivery or, failing that, until refund.
When it triggers
- Developer fails to deliver within the contractual period.
- Developer fails to start works.
- Developer enters insolvency proceedings.
- Material defects prevent delivery.
- Buyer terminates for breach (CC art. 1124).
Triggering procedure step by step
- Pre-litigation letter to the developer demanding refund and announcing intent to trigger.
- Notice to guarantor or insurer with contract, payment receipts and proof of breach (typically, the delay).
- The guarantor has 30 days (or the policy term) to respond. If they pay, end of matter.
- If they object or don't respond, direct action against the guarantor: civil claim before the Court of First Instance.
- Enforcement if no voluntary payment.
Liability of the depositary bank
The Spanish Supreme Court's First Chamber has consolidated that a bank receiving payments into the developer's account without verifying the guarantee responds jointly. It's an additional route when the developer has gone bankrupt or where the guarantee never existed. We plead this with express citation of the case law.
Real Costa del Sol case: AIFOS and Banco Santander
In 2024, a buyer in El Puerto de Santa María received €64,431 + statutory interest for amounts paid on account for a property that the developer AIFOS never built. Banco Santander was condemned as guarantor. The Málaga Provincial Court has further consolidated that the developer's insolvency does not suspend the interest the guarantor must pay. Useful case law for similar Costa del Sol cases.
Critical deadlines
- 5-year prescription of the civil action against the guarantor (CC art. 1964).
- Specific policy term where stipulated (typically 1 year from denial).
- Notification term to the insurer per policy conditions.
Frequently asked questions
What if the developer never gave me a guarantee?
It's a serious administrative infringement (fine up to €60,000 per unit) and, more importantly, entitles you to terminate the contract. Plus the depositary bank can be jointly liable if it received your payments into the developer's account without verifying the guarantee.
How long does the bank take to pay the guarantee?
30 to 90 days from a well-documented claim. If delayed, we claim default interest under art. 20 LCS.
Does the guarantee cover VAT?
Yes. VAT is part of the amounts paid on account and is refunded in full.
And if the developer is bankrupt?
Insolvency doesn't prevent direct enforcement of the guarantee against the bank. The Málaga Provincial Court has confirmed it doesn't suspend the interest owed by the guarantor either.