Here is an update.
“Seller”(owner of property and trustee for “buyer”) will not cooperate, has changed the locks, instructed letting agent to redirect to herself the rent that buyer was collecting to pay the mortgage on the flat and seller has told the buyer not to interfere with the property or the tenant arrangements or she’ll have the police attend the premises/take action against the buyer. presumably the Spanish police will only be interested in/comprehend the escritura and not the trust deed and comply.
Informal friendly counsel advice: anonymised etc:
[F is the seller/trustee]
I am sure you agree the 30th October 2015 agreement is a very odd hybrid. Parts of it (the “consideration” section under paragraphs 2.2.2, 2.2.3 and 5 ) appear to be a sale agreement with the € 12,500 price paid now but completion delayed to some dates before 30th October 2017, which completion you could have actioned, but for whatever reason did not. It also could not have been actioned, of course, without Santander’s consent. But other parts, presumably to apply up to any point when the flat was transferred, are a declaration of trust recording unequivocally that F remained owner (clause 1) but held on trust for you with you having use and having to pay all outgoings. I get that you did in fact pay variously the €12,500 and have paid everything since. Now, that trust is not expressed to be limited in time, which I suppose explains why the two of you allowed things to drift for seven years. Because you failed, using the power of attorney, to effect the transfer by 30th October 2017, I guess F could have sued to force you to, but she did not. So, in my view, the trust subsists, for there was nothing to limit it to 30th October 2017 in the agreement or to provide for its discharge, if clause 5 was breached.
Thus, we say F continues to hold on trust for you and your line is you are therefore entitled to continue to use and let out. However, if you are thinking of suing here for example a declaration to that effect, no way. For any number of reasons e.g forum conveniens and the cause the subject is property, the English court will tell either of you to litigate in Spain. That could be her suing to remove you from the flat or you suing for a declaration she cannot because she holds only as trustee. I guess if such litigation ever comes about, your Spanish lawyer can deal with it in Malaga County Court.
As to any reply to F’s weird 5th July 2022 letter, I would write to her saying the 2015 agreement has never been terminated or cancelled and remains in force and that under it she holds, having received the full agreed price, and you having paid all outgoings for the last seven years, on trust for you with you being entitled to the full use of the flat as you have had for the last seven years. But I do not think (Spanish lawyer may disagree in Spanish law) you can now force completion, and I’m not sure you would want to. I also can’t see how you can claim repayment of outgoings when you agreed to pay those. I suspect F is hoping you will pay a bit more (and pay off Santander) for a completion now. Negotiation is up to you, but the greedy old witch must know shifting you would be expensive and difficult.”
Weird letter referred to will not ad anything useful to this very long post; Buyer did write to seller in strong terms requiring her to act as her trustee etc and as is self-evident, (re final comments in Counsel’s note) seller has indeed shifted the buyer, by changing the locks etc and the onus is on us to do something to make the seller pay attention.
My only idea at the moment (and it goes against the second paragraph of Counsel’s comments) is that E&W is indeed the forum for a trust claim under an E&W law trust; repatriation of the income hardly seems a barrier to every other suitability of going in E&W. If the trust subsists, perhaps we should explore the idea of seeking to make a claim in equity, in England, as beneficiary of the trust, for the net rents and profits, use and benefit of the trust property. I don’t know if this is viable, but if the trust remains in existence, this seems to follow. A claim in equity does require the claimant to come with clean hands and we can’t deny failing to follow through with the two year point, but we have done everything else in good faith to date and if we could establish implied waiver of that two year condition point by seller/trustee accepting the benefit of buyer/beneficiary bearing the cost of the property throughout the period to when recently deprived of the benefit of the trust, may be that would find favour with the court; presumably it would increase beneficiary’s chances if she were also to demonstrate that she is ready, willing and able to complete forthwith, although strictly speaking, if the trust subsists independently of the rest of the agreement, I don’t see why this would be a critical factor.
Would that approach to the problem in an English court gain some traction? I am not suggesting that any outcome would be recognised in Spain and I wouldn’t even bother to take it there to show Spanish legal representation; the purpose of doing it would be solely to put the seller/trustee under financial pressure in England, so that she might think more positively about off-loading the property and attached liabilities to the buyer, ready, willing and able etc.
if anyone has any comments on my latest suggestion above - or any other ideas, I would be glad to hear of them please.