Unauthorised Site Plan Changes – Completion Advice Please

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This topic contains 26 replies, has 8 voices, and was last updated by Profile photo of Anonymous Anonymous 10 years, 10 months ago.

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  • #51515
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    Anonymous
    Participant

    Our developer has significantly changed the completed site layout from the original plan attached to our contract. Our biggest gripe is that the number of pools has been altered from 3 down to 1, without any consultation. As we believe that this has reduced the value of our property, what action can we take against the developer to have this reflected in the completion price? Any other options?
    We expect to be notified that the developer wants us to complete on the legals in the next few weeks.

  • #60663
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    Anonymous
    Participant

    What development are you buying on? Where in Spain is it situated?

  • #60664
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    Anonymous
    Participant

    Sorry to appear stupid, but why does that matter?

  • #60665
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    Anonymous
    Participant

    If you think your property is being devaluated as they are are giving you something different from what you purchased (less services) I guess you need legal assistance (and probably a skilled appraiser) specially if you are to complete the legals shortly… look for a lawywer in you area,you should ask for a discount on the final price.
    I may tell you that if the builder refuses to comply, a legal action requiring that discount won’t be incompatible with going on with the purchase.
    Seen some successful lawsuits that obtained reductions on final price as less square meters where delivered (in an apartment) than the contract and original project reflected… could be a similar case…

  • #60666
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    Anonymous
    Participant

    Cesar, thanks for your reply. When you refer to an “appraiser” do you mean someone who can advise us how much the property has lost in value?

  • #60668
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    Anonymous
    Participant

    redroseman – I think Claire was asking because one of the ideas of the forum, besides seeking help and advice for oneself, is to share information to help others.

    If there is a problem with a development, it can be good to name the development because believe me, there are many Brits who buy, then sit in England totally unaware of many problems that are going on. This forum, and others like it, can be their only way to keep up to speed with what is going on.

    We know of people who were just about to complete on our development totally unaware that the building licence had been revoked, and they are now only holding back with their completion payment through reading shared information about the development on this forum.

    Also, of course, by naming your development, there may just be someone out there who can contribute some information that you didn’t know about.

  • #60669
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    Anonymous
    Participant

    Sofia, the development is

  • #60672
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    Anonymous
    Participant

    Hi Cesar,

    We are in a similar situation to ‘Guest’. Our ‘missing’ facilities include 9-hole floodlit golf course, indoor pool, spa & gymnasium, beach clubhouse, commercial centre, church, mains power & water supplies, Certificate of Habitation and final approval from the regional government.

    We have been told that if we sign our escritura then we lose our rights under our purchase contract. The escritura does not incorporate our contractual rights and even has a clause which could make us liable to contribute to the costs of the infrastructure and services provision. For this reason we still do not have our keys 2 years after completion.

    I would like to warn ‘Guest’ to be careful that he does not sign away any of his rights if he intends to take the matter further.

  • #60673
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    Anonymous
    Participant

    Hi Tilly,

    Soooooo, Not too much missing then!!!!!!!!!! 😆 😆 😆

  • #60684
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    Anonymous
    Participant

    @redroseman wrote:

    Cesar, thanks for your reply. When you refer to an “appraiser” do you mean someone who can advise us how much the property has lost in value?

    Exactly… a certified API or an Architect specialized in building valuation will do fine

  • #60692
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    Anonymous
    Participant

    Tilly,

    If you haven’t yet, go and find a lawyer ASAP (I’m afraid I’m repeating this in almost every post)

    Although signing tittle deeds makes it much harder to make a later claim and we could call it highly risky, You have to bear in mind that if under given circumstances you cannot wait to sign, you don’t automatically loose all your rights just by signing something that gives you less than expected, anyway there are certain legal steps that should be made before, during and after signing that require skilful legal advice…

    Also, if you signed a contract first, you have the right to ask for that contract to be fully complied and moreover, you may take into account that even every advertising brochure related to the development (i.e. describing the compound services), produced by the developers has in Spain the nature of a compulsory contract clause for the promoter/builder as the Spanish Supreme Court has settled in many cases making this issue a truly and full ‘case-law’ (I know this expression is used in the US, I’m afraid I don’t know if you use the same term in the UK)

  • #60705
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    Anonymous
    Participant

    Yes all three legal systems in the UK use the phrase. I understand the Spanish phase is “decisiones judiciales que sirven de precedente”?

    Best
    Loco

    @Cesar wrote:

    ‘case-law’ (I know this expression is used in the US, I’m afraid I don’t know if you use the same term in the UK)

  • #60740
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    Anonymous
    Participant

    Hi Claire,
    Yes, just a few bits and pieces. We think we have problems, but in comparison with the problems you and other members of this forum have we almost seem lucky!

    Hi Cesar,
    Many thanks for the very good advice. Unfortunately being aware of your rights under Spanish law is just the tip of the iceberg. We did appoint a lawyer last year to bring a civil action against the developer. We were introduced to him by a Graduate Social in the area and we left the paperwork and money with her. Now, eight months later, the lawyer says he was never instructed, another lawyer misdirected our case to the penal court where it has been rejected, the original lawyer has used our purchase contract in another case. (This is a very over-simplified version of events).

    Our paperwork is now with another lawyer and we will see what he recommends. I wish redroseman the very best of luck with his legal proceedings.

  • #60741
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    Anonymous
    Participant

    Hi Tilly,

    You are always so supportive of our (sofia’s and my ) predicament. I think you deserve our “sympathies”(if that’s the right word ) too. Your case sounds just as much of a merry-go-round nightmare. Hang in there! 🙂

  • #60802
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    Anonymous
    Participant

    To Tilly, Guest & all other poor souls out there!! 🙂

    As Cesar wrote in his postings above, any advertising etc has a contractual power. Even if your contract offers you less than what the ad was promising, the ad is considered a higher contract in a court of law.

    If for instance the brochure advertised the property as having a swimming pool and when it is built it does not have one, by law you are to be given compensation. Basically, if it is a lesser product than what you were sold and what you paid for, compensation is due!

    Obviously, the use of a good solicitor and most probably legal action is required. As we all know developers are quick to take your money but not so quick when they have to refund you.

    As Cesar said there are many cases where for instance the sq.m of a house were less than the specs attached to the contract and the developer was forced to pay compensation. It is absolutely true and we know that our developers (same as Sofia & Claire) had to pay compensation to purchasers on one of their latest developments because of that. The one that won the BRONZE AWARD for best apartment! 😯

    Anyway! What I did want to ask Tilly, is whether your development has got a working building licence or not. The fact that so many things are missing makes me think that perhaps they have their licence suspended either presently or in the past? Also, the fact that they are already 2 years past the contract date does not sound too good either.

    Maybe the reason why they had to abandon so many of the things they were supposed to be doing i.e golf course, swiming pools etc is because their original building licence was actually one of these licences that were ignoring all PGOU plans and environmental laws and, the developers, in their effort to save the actual buildings (they have to have something to sell after all) they had to leave everything else out. 👿

    I’d be really interested to know!

  • #60808
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    Anonymous
    Participant

    Hi all,
    We are in dispute with our property in Casares in Malaga.We were due to complete at of Jan 06.

    The bank recently did the surveyor and informed us of the missing sq m a quarter of the built area is missing.

    When we spoke to our lawyer she agreed with the developer saying it was fine its part of the communal areas. We sent her the report then the she said the developer had breached their contract. Our lawyer advised us to ask for a refund or to get a reduction. We asked for a refund the developers refused. The lawyer has offered no further advice 😕

    We emailed the lawyer asking the developer and the bank to survey the development again, and we have asked our lawyers to arrange a meeting to speak to the lawyers on both sides to resolve the matter

    Please can someone tell me is their a better way to approach this and can you recommend someone who is based in Malaga to help ❓

    thanks in advance

    Tamara

  • #60849
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    Anonymous
    Participant

    Dear Tamara

    The following article is from a consumer’s organisation website and deals specifically with the issue you are asking about:

    Qué hacer si la vivienda tiene menos metros que los contratados
    Lo recomendable es solicitar un informe pericial

    Viviendas de Protección Oficial: Mayor oferta de compra que de alquiler 9/6/2003
    El aval en los préstamos hipotecarios 5/6/2003
    La licencia de primera ocupación 16/1/2004
    La vivienda habitual puede complementar los ingresos por jubilación 17/11/2003
    Garajes y trasteros como anejo inseparable de la vivienda 2/9/2003
    Memoria de calidades 18/8/2003

    Enviar a otra persona
    Imprimir

    Para que el inmueble adquirido quede definido de forma concreta en el proceso de compra es primordial una descripción detallada de dicha vivienda. Por ello, han de citarse en el contrato ciertos elementos fundamentales que describan objetivamente el bien objeto de la transacción, como, por ejemplo, su localización, el número de finca registral, número fijo catastral, superficie en metros cuadrados, etc.

    En ocasiones la compra se realiza sobre plano, normalmente cuando se trata de viviendas de nueva construcción, en cuyo caso no puede visualizarse la realidad física de la vivienda adquirida: la compra se realiza en virtud de unos planos que proporciona el promotor. Especialmente en este caso conviene que en el contrato privado de compraventa se reflejen no sólo metros cuadrados de superficie construidos, sino también los útiles. Es decir, cuantos más datos identifiquen la propiedad, de mejor forma se controlará el cumplimiento del promotor en su obligación de entregar el elemento comprometido.

    En muchos contratos de compraventa el comprador consiente a los promotores a realizar modificaciones en el proyecto, siempre y cuando sean autorizados por los técnicos directores de la ejecución (arquitectos, aparejadores, etc.). Ahora bien, dichas modificaciones pueden ser lógicas si así son exigidas por un replanteo del proyecto. Pero, si el mismo implica una modificación sustancial de las condiciones en las que se adquirió la vivienda, puede suponer un incumplimiento por parte del promotor del contrato de compra suscrito.

    En caso de que se haya contratado una vivienda de 90 metros cuadrados y se entrege una de 75 metros cuadrados. Resulta obvio que dicha vivienda ya no se puede acomodar a las necesidades primeras, en cuyo caso, se puede optar o por resolver el contrato, solicitando la devolución de las cantidades entregadas con antelación, más lo daños y perjuicios ocasionados, o por la entrega de la vivienda, más una indemnización por los daños irrogados por los metros cuadrados que se entreguen de menos.

    A veces, no se podrá optar por la resolución del contrato, pero sí por una indemnización, cuando por ejemplo el trastero o la plaza de garaje tenga menos metros cuadrados que los adquiridos, o el baño, aseo, salón u habitaciones a causa de alguna columna extraña resulten ser de menor superficie que la contratada. Cuando se aprecie fehacientemente dichas deficiencias, de forma rápida, habrá que comunicar a la promotora que la superficie construida es menor que la verdaderamente adquirida, de ahí que resulte fundamental que se constate en contrato detalladamente cuáles los metros cuadrados comprados.

    En caso que la diferencia de metros cuadrados sea sustancial, o que la promotora deniegue la reclamación, lo recomendable es solicitar un informe pericial que acredite que la vivienda posee menos metros cuadrados de los indicados en el contrato de adquisición. Así queda constituida la prueba para los supuestos en que la reclamación alcance la sede judicial o los tribunales arbitrales de consumo.

    In rough translation – or as close as I can get it:

    In case that a house of 90 square meters has been contracted and when finished it is one of 75 square meters: It is obvious that this house no longer can accommodate the primary necessities, in which case, it is possible to chose either declare the contract null and void, and ask for the return of the amounts given in advance, plus the caused damages and damages, OR ask for the delivery of the house, plus an indemnification by the damages caused by the fact that there were less square meters.

    Sometimes, it will not be possible to opt for the resolution of the contract, but seek damages, when for example the trastero or the garage space has less square meters than the acquired ones, or …. smaller surface than the contracted one. These deficiencies need to be communicated in writing, quickly, to the promoter that the constructed surface acquired is less/smaller than what is stated in detail in contract (That is why it is so fundamental to have a full and detailed description of the house when signing a contract). [ u]In case that the difference of square meters is substantial, or the promoter denies the claim, the recommendable thing is to ask for an expert’s report that confirms that the house has less square meters of the indicated ones in the contract. Thus it is constituted the test for the assumptions in that the claim reaches the judge or the arbitration consumer courts.

    To find an expert in Malaga I would contact the local OMIC office and they will be able to point you to the right direction.[/quote]

  • #60850
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    Anonymous
    Participant

    Additionally, you can ask the developer to give you a Catastral Certificate.

    This will confirm the true sq.m of the property. use it to get the price down!!!!!!

  • #60856
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    Anonymous
    Participant

    would you ask for this certificate before you complete to check what you are buying is correct ie sq metres?

  • #60858
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    Anonymous
    Participant

    Tamara,

    You don’t give much information, I’ll try to guess and give you some ideas, but a full knowledge of the situation would allow a more sounded answer

    You say your property is due to complete this month so I assume you didn’t sign the deeds yet but you will be told to do so soon

    I assume you signed a private contract and even paid a deposit but not the full price… I assume also that that private contract clearly specifies the square meters your property would have (or did you sign a contract saying something like buying a property described in a project with ‘X’ rough or approximate meters…???) Does this contract stipulate any precise date or deadline to sign the tittle deed before a Notario?

    Charlie is right, you should know how many meters are exactly missing to value the ‘depreciation’ of your property
    also we should know if that missing area is significant (so you can get the contract to be declared void and ask for a full refund plus compensations) or you may be still interested on the purchase (you will ask for a percentage refund plus compensations) I don’t know how is the bank involved in this operation and if the information given to you about the missing Square meters is based on a technical report, if not It would be wise to hire an appraiser (he would tell you the exact area missing and also it’s value)

    In the other hand I don’t think a Catastral certificate would help as I understand this is an unfinished property so I’m afraid it won’t be described in the Catastro yet… (the Catastro is informed after the building is finished)

    I don’t understand if the ‘missing’ meters are in the private area (your house) or in the common area, that could be crucial too.

    This is a delicate issue, follow your independent lawyer’s advice, but I could tell you that if the missing is significant and it is in your private area don’t sign the tittle deeds if you can afford it, threaten them with a court action demanding the full refund, interests and a further compensation that could include the difference you paid/had to pay for this property and the full price of a similar property (same square meters and similar services) within the same area at todays price, any expenses made related to the failed purchase, bank charges related to the operation and even a moral damages compensation

    If you are really interested in this particular property and the missing area, though important is acceptable if they compensate de decreased value you could sign the deed (if you really, really have to) but try to delay it as much as possible making clear you are not giving up your rights, and that you have required compensations

    You do not automatically loose your rights by signing something different from your private contract but it makes it harder to complain later so anyway and no matter which case of the described matches yours, you have to make a formal requirement (once you know what is exactly missing) by a ‘Requerimiento Notarial’ or even by ‘burofax’ (cheaper but less efficent) I told you this was a delicate issue so let your lawyer to handle this, but do it ASAP

    I’m afraid the nearest English speaking lawyer I really know in the area is in Sevilla, I guess this web site has a list of professionals but I don’t know them (I don’t know if they are ‘recommended’ by the site or the list is just advertising)

    Cesar

  • #60861
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    Anonymous
    Participant

    @anonymous wrote:

    would you ask for this certificate before you complete to check what you are buying is correct ie sq metres?

    Yes, most certainly! Anyway, the bank’s surveyor -in Tamara’s case- has already measured the flat and is well under the sq.m. that it should have been!

    I undertstand from what Tamara is saying that the flat is built and finished. So, the catastral certificate should be very readily available and cheap to obtain. However, if it is not forthcoming then it would make me wonder what is the developer trying to hide? Obviously, the bank’s surveyor is not a novice in measuring properties!!!

  • #60863
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    Anonymous
    Participant

    Thanks for your responses,

    They are all very useful, we will look into all possibilities, as we want to move to Spain later on in the year this is a big learning curve.

    Regarding the dispute, we have been told their is a legal precedent that states “If their is a 15 sq metre difference on the built area we can cancel the contract? Is this true or is the precedent relating to the build area and usable area.

    Thanks again for all advise.

    Tamara 😕

  • #60865
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    Anonymous
    Participant

    I would say 15 sq metres is ‘rather’ substantial!!!

    Equal to a bedroom approx. 12′ x 12′

    If you are missing 15 sq metres out of 90 sq metre, you are missing a sixth of your house!! 😯

  • #60866
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    Anonymous
    Participant

    I’ve just had another thought…..

    Imagine that the developer shaves a sixth of each apartment.
    That means for every six apartments he builds, he gets a seventh free at no cost to him, to sell.

    As Bruce Forsythe says….”Good Game”!!!!! 😆

  • #60893
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    Anonymous
    Participant

    Sofia,

    We laughed out your comments as its probably true 😆

    Tamara

  • #60915
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    Anonymous
    Participant

    Tamara,

    The Law, in general, says that vendor has to give you the building with the meters specified in contract, and when that is impossible (lets say a building mistake 🙄 ) you have the right to choose between getting a percentage refund or canceling the contract, but this second option only if the area missing is more than the 10% of the whole surface.

    You have the right to choose, not the vendor.

    Anyway, sometimes Courts have soften this rule in behalf of the purchaser when they had considered that the missing meters, though smaller than 10% of the whole area, was essential in the house (imagine you have in contract a 200 m2 house, with four bedrooms and the vendor/developer gives you a 182m2 house with only three bedrooms, the area missing -a 18m2 bedroom- is less than the 10% but you wanted four, you would never have bought a three piece house…)

    Charlie,

    Still think the same about the Catastro Certificate, they get that much data every day, their files take tooooo long to update -sometimes even up to a year- Anyway, the last data in a new built house will come from the Town Hall after the Inspections, the First Occupation License, and updates of the local planning. This last information will be really reliable and maybe the only to trust, bear in mind that all the other data comes simply from the Notario as it has been declared by whom???? yes, the ‘good’ guy of this movie… the developer 😈 .

    Catastro information it’s only valid for tax purposes and wont give you the exact number of your house meters as it would include also the percentage you own of the common elements of the building (a house of say 70 m2 could have in the Catastro certificate 100 m2 as you will also own ‘some’ of the hallways, elevators, stairs, etc…)

    Cesar

  • #60927
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    Anonymous
    Participant

    Cesar,

    Thank you for clarification on our questions 🙂

    We are waiting for our the First Occupation License, it is due soon, so we will wait for this before we do anything else, as this seems the most reliable source

    Tamara

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