A Real, Unresolved Off-Plan Case — and the Supreme Court Doctrine That Enabled a Risky Loophole

This article is prompted by a real, current off-plan matter that remains unresolved—and it highlights a pattern we are seeing again: sophisticated payment structures being used to dilute statutory protections.

Law 57/1968 (now reflected in Law 20/2015) establishes two obligations: first, the developer’s duty to provide the buyer with the corresponding guarantees; and, more importantly, a second duty imposed on the depository bank—elevated as the “guardian” of the system—to safeguard the amounts paid into its accounts and to verify that the guarantees exist, under its own responsibility.

The most serious issue in off-plan purchases in Spain is not only that some developers fail to issue legally mandatory guarantees. It is that, after an initial period in which the Spanish Supreme Court interpreted the regime in line with its protective purpose—safeguarding the buyer, the most vulnerable party—the Court later developed a less robust line of reasoning, more favourable to depository banks. We challenged that shift of our Supreme Court before the Spanish Constitutional Court and at the European level without success, and we publicly analysed and criticised it in multiple publications.

One clear example is our article published by the General Council of the Spanish Bar (CGAE) (Spanish):
https://www.abogacia.es/actualidad/opinion-y-analisis/el-todavia-extrano-concepto-del-supremo-del-deber-de-vigilancia-activa-de-los-bancos-en-proyectos-sobre-plano/

For the broader practical framework (2025 guide), start here:
https://www.costaluzlawyers.com/buying-off-plan-property-in-spain-complete-guide-2025/

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The Supreme Court’s “Third-Party Payment” Problem

To explain the issue a bit better regarding the shift in the Supreme Court’s interpretation: in its first phase, Supreme Court case law aligned with the protective purpose of the system. It held that the depository bank’s liability arises from the moment it knows, or ought to know, that buyers’ advance payments may be entering accounts linked to off-plan sales—often expressed as an active duty of supervision and control.

The problem arised when “exceptions” were introduced. In practice, certain later rulings by the Supreme Court allowed deposit-taking banks to argue that they could not identify the true nature of incoming funds because payments were made through lawyers or other third-party intermediaries, rather than directly by the buyers.

This may sound technical. It is not. It is structural.

It creates a loophole: if the payment arrives “de-personalised” through a third party, the bank may claim it could not “know” these were buyer advance payments and, therefore, it did not require the developer to issue the legally mandatory guarantees.

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What This Loophole Enables in Practice

Once that door is open, the pattern is consistent:

• payments routed through third parties or intermediaries;
• vague references and payment concepts;
• weakened traceability;
• guarantees “delayed”, “pending”, or simply never issued;
• buyers left exposed precisely when protection is supposed to be automatic.

Developers—and sometimes banks—have learned that payment architecture can neutralise statutory protections. The law remains, but enforcement becomes harder when transactions are deliberately structured to obscure what should be evident.

For the practical “deposit + guarantees” analysis:
https://www.costaluzlawyers.com/the-truth-about-buying-off-plan-in-spain-2-6/

For claims routes, including bank-related actions where applicable:
https://www.costaluzlawyers.com/resources/claims-against-banks-in-off-plan-projects/

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The Most Dangerous Misconception: “We Had Lawyers, So We Were Safe”

One of the most concerning aspects of the unresolved matter we are currently handling is this: the buyers genuinely believed they were protected simply because they were “represented by lawyers”.

But in off-plan purchases, representation is not protection.

If your “lawyer” is recommended by the developer or the agency, independence is compromised—and independence is the condition required to enforce the safeguards that matter. When payments are channelled through third parties, the risk compounds: the structure itself can become part of the mechanism that erodes accountability.

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What Independent, Specialist Advice Must Achieve — From Minute One

An independent off-plan lawyer is not there to “facilitate” a transaction.
They are there to stop it unless the protections are in place.

At a minimum, independent specialist advice must:

• refuse any payment unless an individual guarantee/policy certificate is issued correctly for that payment;
• ensure full traceability (payee, account, concept, and reference);
• block third-party routing that obscures buyer identity and the nature of the funds;
• challenge clauses that shift risk, dilute mandatory protections, or normalise missing guarantees.

For an end-to-end checklist:
https://www.costaluzlawyers.com/the-truth-about-buying-off-plan-in-spain-6-6/

Buying Off-Plan Property in Spain – Complete Guide 2026

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The Bottom Line (and the Recent Positive Signal)

The Supreme Court may not have intended to weaken buyer protection, but certain interpretations enabled a loophole that sophisticated actors can exploit: third-party routing as a shield against responsibility.

The only reliable way for a buyer to close that door is simple:

Hire an independent, specialist lawyer from day one—before signing any reservation/earnest money agreement, before committing anything with the agent, and before paying a single euro.

It is also worth noting that more recent Supreme Court developments have sent a stronger signal in favour of buyer protection. See:
https://www.costaluzlawyers.com/spain-supreme-court-reinforces-law-57-1968-off-plan-buyers-protected-even-with-intermediaries-and-collective-guarantees/
https://www.costaluzlawyers.com/success-case-spains-supreme-court-cements-the-protective-tuitivo-line-in-off-plan-purchases-ley-57-1968/

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Why Costaluz Lawyers

At Costaluz Lawyers, off-plan buyer protection is not an “add-on” service—it is a core practice area. We have been at the forefront of Law 57/1968 enforcement, bank/insurer liability analysis, and buyer-focused litigation strategy for years, and we have consistently published and advocated on the legal mechanics that determine whether buyers are genuinely protected in practice.

If you are buying off-plan, have paid without receiving guarantees, or are unsure whether your payment structure is exposing you to unnecessary risk, we can review your documentation and advise you on next steps:
https://www.costaluzlawyers.com/contact/

About CostaLuz Lawyers and María de Castro

You can read testimonials from hundreds of satisfied clients, going back to 2006, on our website, on Google Reviews and on EyeonSpain.

Reviewed by María de Castro, Abogado no. 2745, Ilustre Colegio de Abogados de Cádiz. CostaLuz Lawyers has supported international buyers since 2006 on EyeonSpain  with guidance and advice on the legal aspects of life in Spain. Included in the lawyers lists of the UK and Ireland embassies. Updated 22 Nov 2025.

María Luisa de Castro’s work, founder of CostaLuz Lawyers, is backed by a strong presence in specialist media and professional directories. Her track record as a Property Law and Consumer Real Estate Law (Derecho de Consumo Inmobiliario) specialist can be seen in her guides for international audiences on Expatra, in her long-running blogs on Spanish off-plan protection and Ley 57/1968 on EyeOnSpain , in her legal analysis for Confilegal and Legal Today, and in her contributions for the Spanish Bar Council (Consejo General de la Abogacía Española) and the Centre for Consumer Studies at the University of Castilla-La Mancha.

Her work is also profiled on international retirement and expat platforms such as Retirement Abroad, and has been highlighted by expat media including The Olive Press News Spain and The Local Spain among other specialist expat and legal forums.

Her legal work has also been featured or referenced in respected international and Spanish media, including The Telegraph, The Times, the BBC, El País and El País English, The Local Spain, The Olive Press and other reputable outlets, particularly in connection with landmark court rulings on Ley 57/1968 and Spanish consumer protection.

CostaLuz Lawyers is also included in the official lists of English-speaking legal professionals for British and Irish nationals in Spain, as compiled by the UK government’s “Spain: list of lawyers” and by the Embassy of Ireland in Spain and its honorary consular network.

For a complete overview of property law and conveyancing in Spain, see our Buying Property in Spain Complete Legal Guide 2026.

Reviewed by María Luisa de Castro, CEO at CostaLuz Lawyers — Updated 2026

This is general information, not definitive legal advice — every case requires individual analysis.