Question: We handed the money for a deposit for the rental of an apartment, the owner verbally agreed the conditions and told us that his lawyer would prepare the contract. Some days later the owner gave us the contract already signed by him, and we took it home to translate it, at no time did we sign it or verbally accept it. We returned to ask the owner to change some points that we did not agree with, as amongst other things we were not allowed to have our dog in the apartment, he gave us another contract. Again we took it home to study it. The contract did not have the changes that we asked for and the owner did not want to change it, so we asked to have our money back. We never got around to living in the apartment and now the owner does not want to return the deposit to us, what can we do?
Answer: The first thing to do whenever there is a dispute about anything is to try and come to an amicable agreement.
If the rental of the property was done via an estate agent, then you can go to the business premises and ask for the complaints book. By law any establishment responsible for the production, commercialization, distribution and/or the sale of goods, products and/or services are required by law to have a complaints and claims book available for customers. The form has 3 copies (green, white and pink) although there are minor variations according to the region in Spain. In general the client will keep the white and green copies and leave the pink copy for the manager of the establishment. The form is straightforward to complete but you must be careful to include clearly and concisely the reasons for your dissatisfaction. The forms in Andalucía are in Spanish and English. The establishment has 10 business days to answer the customer and to try to find a satisfactory solution for both parties. If after 10 days the establishment does not answer or if the consumer does not feel satisfied with the answer, he can forward the white form by mail or burofax to the Oficina Municipal de Informacion al Consumidor (OMIC) or Consumer Advice Bureau, of the town where the incident took place. These offices will let you know what has to be done to proceed with the complaint.
If the contract is either verbal or in writing between private parties (i.e. not commercial) then you will have to get the advice from a competent lawyer. The consumer advice bureau can only advise on commercial matters. It is my opinion that in your case the owner should return your money to you as you did not agree to the conditions and at no time did you take possession of the apartment as you did not have the key. The owner has not lost anything as he did not hand over the apartment to you and he had the opportunity to rent out the apartment to someone else as the time went on. The fees for his lawyer will have been his only real cost. The other point which is quite clear is that as far as ‘rights’ are concerned there are usually different opinions, and when an agreement cannot be reached the case will end up in court.
The next step is for the lawyer to send a burofax to the other party, in this case claiming the refund of the deposit. A burofax is a letter which is sent via the postal system and it is sent with proof of the contents of the letter and has to be signed for on receipt. This is the best form of communicating with the other party and this system is accepted in a court of law as proof of the letter being sent, proof of contents and proof that it was received by the other party. Normally this letter will specify a certain amount of time in which the refund should be paid. If this is not adhered to then unfortunately the matter will have to go to court.
If there is a contract it should state the court where any disagreements should be taken to for resolution. If there is no contract or the jurisdiction is not stated, then the law states that the matter must be heard in the courts and tribunals in the place where the property in question is situated.
If at all possible we have to give all the proof that we can for example: witnesses, bank justifications of the payment…
Be aware that going to court is a costly process and the outcome cannot be guaranteed, nor can it be guaranteed that the court will award the costs to be paid by the losing party. When going to court, depending on the amount that you are claiming, you will need a lawyer and an attorney at law or a ‘Procurador’.