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A question for Drakan or any other lawyers out there that contribute to this forum.
So much has been discussed re. developers trying to claim they have the LFO (licence of first occupation) through the Administrative Silence Rule.
My question is:
Is it true that after the developer has submitted the necessary papers for an LFO by this method, waited the necessary 3 months – that they can then go back to the Town Hall and obtain an official stamp on a document that proves an LFO has been authorised by this method?If this is true, it would ‘put to bed’ all the wondering whether an LFO has in fact been achieved by this method. It would be the confirmation of proof for the developer that he needs, and would give confidence to the purchaser.
Would love to know if this is true, because then purchasers could call the developers bluff if they say they have the LFO through Ad. Silence Rule and demand to see the official stamped document.
Barbara
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Barbara
Do you not think that your question is impossible to answer. It would seem to me that LFO by AS was the norm prior to the latest revelations and the law is the law i.e. apply for a LFO and assuming you have complied with your original licence you have a LFO. If you haven’t the Town Hall will get developer to make good.
That being the case if a developer has built to the licence then applied for a LFO, waited three months, then assume they have one, they ask the buyers for completion. What is everyone to do, the developer believes he has complied, yet the buyer will not complete without sight of the LFO, which the developer does not have, only a stamped and dated application to the Town Hall. Let just say for a moment that the developer has in fact complied to his original licence and therefore a written LFO will be forthcoming, one day. The buyer will not complete, does this mean that the buyer is in breach of contract (remember the law of AS is that an LFO has been granted) and can the developer resell the apartment to get his money?
I read everywhere that without a LFO you can not get Water, Electricity, a mortgage or register your property. Yet many, many developments do not have a copy of their LFO as these where granted under AS. I own one such apartment and I have a water contract, a electricity contract, I have registered my property at the land registry and I know of owners that have mortgages, all we have is a copy of the aplication to the town hall stamped three years ago. This is also true in many other developments.
Clearly in these troubled times a developer would be better waiting for a LFO to be in hand before asking owners to complete. It would appear some do, some don’t. I have a friend who is buying through Eralia and they are waiting (under instruction from their solicitors) for a LFO and are under no pressure at all to complete.
I have heard tell that estate agents are now using the “they don’t have a LFO so don’t buy there” ploy to put people off a purchase and steer them to other properties the agents want to sell.
Anyway just my opinion, I am in no way an expert in these matters
Regards
Paul
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Hi Paul – neither am I an expert !! Just learning along the way….. and appreciate your reply.
My question was the result of something I read on a ‘Spanish Law’ website, I know – can be a ‘dangerous thing’, but nevertheless, seemed to be quoting the law, so thought it was worth asking on the forum – especially if someone like Drakan can give some input.
If this stamp/procedure does exist – can save a lot of stress on both sides.I can only add that when we posed the AS question to the lady Sra. Bueno at OMIC (in charge of housing/developments) she was adament that because of all the corruption uncovered in obtaining illegal building licences, the AS rule does not apply anymore. Otherwise all these illegal new builds would automatically become legal, and while this Town Hall mess is being sorted out – 3 months of silence is has no meaning.
Anyway, all authority has been removed from the Town Hall, so any ‘authorisation’ would be deemed invalid.
Drakan also confirms the same point.
With the new guy in the new Planning Office set up last week by the Junta, we will see if anything will change on this.Our developer was Eralia – and they have changed their tune re. trying to force purchasers to complete without an LFO. I know for a fact they were trying this, threating purchasers on our development with losing 50% of deposits and the property.
However, when we reported this to the lady at OMIC, she demanded a meeting with them to explain themselves, and they consequently backed down.I think the crux of the matter may well be the fact that yes, three years ago in your case – the AS rule was accepted, and even the utility companies were willing to hook up. But I think with all the scandal going on, times now are different.
I know there are mortgage companies willing to loan on a property without an LFO, but as someone posted recently (apologies to the ‘someone’, can’t find the post), if the development goes under for whatever reason, you can be left without a property and still liable to re-pay the loan. Interesting that one of these mortgage companies closed this week.In Elviria’s case, where so much was designated as green zone or areas for the local people in the 1986 PGOU plan, there are developments which shouldn’t be there. It should be remembered that two developments recently were closed off by the police there, despite people having moved in. So occupation does not guarantee one is ‘home and dry’ with the legality of living there.
Your comment:
quote: I have heard tell that estate agents are now using the “they don’t have a LFO so don’t buy there” ploy to put people off a purchase and steer them to other properties the agents want to sell. unquote
…..doesn’t surprise me. It’s a new line of chat for their sales pitch.Difficult times, Paul, for purchasers, however you look at it.
Carla’s ‘My shocking story’ thread is a prime example.
Let us hope the Junta can sort it out soon (but am not holding my breath!).Barbara
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Where and which developments 😯 I am buying an apartment from Eralia at Elviria. We are also in a position where the LFO is are assumed to have been obtained by the AS I have not been under any pressure yet to complete and I am told that we can get electricity and water connected by private contract. I am baffled to say the least. Sureley to get the final licence there must have been an inspection of the development to make sure the buildings have been built according to the buildong licence. Without an inspection, how can the know everything is in order 🙄
And as for the estate agents, nothing new there 😈 -
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Administrative Silence Rule is not applicable in a place such as -and especially- Marbella. It works fine throughout the rest of Spain.
The LFO is granted by a Town Hall and there’s nothing more that can be done about it to the best of my knowledge. You just have to wait until it is granted. You cannot circumvent this in any way (otherwise we lawyers would, believe me; it would make my life easier).
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@katy wrote:
This morning there was a helicopter circuling very low over some of the new builds in Elviria.
Katy –
The LFO’s I’m trying to talk about are Licences of First Occupation, not Low Flying Objects –
can we stay “on-topic” pleeese…… 😉Drakan – as always, thank you for your reply, especially as I now know you are officially on holiday 8) …. (what dedication !!).
But I am still none the wiser and have not had an answer to my original question !!
– and Katy, STAY OUT OF THIS WITH YOUR HELICOPTERS 👿 👿In order to lay to rest all the wondering for purchasers, whether their developer has (or has not) achieved an LFO by the AS rule –
My question is:Is it true (and apparently it has happened in the past) that it is possible for a developer, after he has submitted the necessary papers for an LFO and waited the necessary 3 months – that they can then write to the Town Hall and request an official stamped letter from them that confirms an LFO has been authorised by AS method?
If this is true, this letter could be the confirmation of proof that a LFO has been achieved by the AS rule. And non-production of such a letter could mean that the AS rule cannot be assumed.
Seamus gave us the following info. from the SUR in English newspaper:
Past re-zoning deals declared invalid as council did not seek approval of “Consejo”
The Junta de Andalucía has moved the drawing up of Marbella’s new town development plan (PGOU) back to Marbella with last Friday’s opening of an office in the town. Located in the Planning building, from where Juan Antonio Roca once ran his “business”, the office will be managed by José María Ruiz Povedano, the former provincial head of Public Works. The office will offer “participation, information and planning development in the general interest of the town”, according to Concepción Gutiérrez, the regional head of Public Works. Povedano added that the priority of the new PGOU would be to recuperate the green zones and public amenities that the town has been deprived of for the last 15 years. unquoteNow wouldn’t it be a wonderful thing, as a service to all the tens of thousands of purchasers involved the Administrative Silence rule dilemma (to complete or not to complete), if this new guy Povedano could give a clear cut answer. It needs addressing and could potentially prevent thousands of unncecessary court cases.
And if I was in Spain, I know where I would visit…So, Drakan, Cesar, Maria ANYone (bar Katy..) – in answer to my question…..?????
Barbara
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If I could add a question, sorry to repeat myself, but if the developer gets the LFO under AS, surely there must be some inspection of the development beforehand? I can´t see that any licence can be issued without this. How can the Town Hall know that it has been built correctly and according to the plans of the building licence if they don´t inspect it? 🙄 🙄
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Goodstich……glad to see you still have your sense of humour in place 😆
Absolutely essential if you are going to survive this thing. Good on yah.
(It helped us survive….).Laggen – again, in the good ol’ days, the AS rule worked because any little thing illegal/wrong could be put right at a later date before the LFO is finally issued.
However, in this day and age, the ‘something’ illegal/wrong could be the whole development illegally built 😯 – hence the risk of completing before the (new?) Town Hall gives their approval.
So many building licences are on hold/under investigation (and developers like to keep this quiet) – it is just a case of finding out whether your development is one of them. And who do you trust to find out THAT information????? A damn good independent lawyer, with no allegiance to the developer whatsoever, that is who.Barbara
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Charlie- Does this mean that the development will get inspected eventually? Maybe two three years down the line? Meawhile we have to hold our breath and hope for the best that everything is o.k. You made a good point that if the Town Hall could give the application for LFO back under the AS with a stamp of approval, then we could all sleep better at night. There surely must be some kind of ackowledgement or….
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We’ve gone off-topic again (personally I blame that Katy and her helicopter…:twisted: ).
It doesn’t look like I’m going to get an answer to my question I originally posted (Drakan is on his sunbed…).
So, persevering still – may I suggest to anyone who is in an Administrative Silence dilemma to try asking their developer, via their lawyer, that if they are so sure they have an LFO through AS, could they pop to the Town Hall and get a letter from them confirming same.
Not too much to ask is it ???? 🙄If I was a developer and by getting such a letter would mean everyone would all start happily completing on my project, I know what I would do….
that is if the AS rule still applies in Marbella!!If anyone tries this – please keep this thread informed. It is worth a try, even if it is just to see the developer’s response.
And just maybe this topic can be ‘put to bed’ for ever! You can’t say it isn’t for the want of trying…..
Barbara
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Barbara….both Drakan & Cesar have said that the AS rule cannot be applied when the original Building Licence is under investigation, or if there are ANY question marks over the development . If it is all above board and a legal building licence it is possible to get the lfo under the administrative silence rule. But as Drakan says…NOT in MARBELLA as there are so many dodgy licences that were issued.
From our experience thus far…have we had a definative answer to ANYTHING ❓ …I think not! 🙄 😉
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Yes, the ASR does work throughout Spain.
The problem is that in Marbella If there if a LFO has not been granted yet its normally because the development has some kind of -serious- ilegality. You could go ahed and complete with the ASR but then you can be almost certain you are going to run into problems due to the ilegality, until solved and If so, could drag the whole process of obtaining a LFO perhaps for years. No one can be certain at this stage on the CDS. My personal opinion is that the Junta will just have to end up legalising all 30,000 ilegal properties sooner -or more likely- later. You just cannot harm innocent purchasers in such a way.
It’s really takes a case-by-case study. If for example I’m sure they’ll grant a LFO sooner or later but for whatever reason the Town Hall is taking too long I might advise to complete instead of facing a breach of contract on my part because they have already the so called ASR.
Now If I’m certain that a development has run into serious problems then I won’t advise to complete without it despite there being a ASR in place.
So in general terms its not advisable to complete without a LFO but then there are cases in which it is advisable for the client’s interest to do so without it (that is with the ASR in place). It’s really up to the lawyers’ criteria and there’ll be lawyers which will advise to complete and some that won’t. Anyway, this is always something that a qualified lawyer should decide in the best interest of his client.
You must understand that broad generalisations are never good, being necessary a careful case-by-case study. Having said the above as a rule-of-thumb don’t complete without a LFO.
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Drakan hello You say that if you are sure they will grant a LFO sooner or later but for whatever reason the Town Hall is taking too long you might advice to complete instead of facing a breach of contract on your part because they have already the so called ASR.
How do we know and how can we be sure that the Town Hall will grant the LFO? If I went to the Town Hall and asked them, would they tell me?
I realise that this seems to be an ongoing question and like you say cases are different, but nobody wants to wait years for the final LFO. If the developer ,as Charlie pointed out, could get a stamped approval saying that the LFO will be issued in due course things would be so much easier.[/quote] -
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My understanding of what Draken has said is that outside of Marbella , because tooooo many properties are involved, AS still carries some weight.
However there can be no stamped approval because approval was by AS and as such individual cases should be taken on merit on completion by ones competent lawyer who ,being competent, should have informed the buyer before agreeing to act on their behalf. -
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Third and last time:@charlie wrote:
In order to lay to rest all the wondering for purchasers, whether their developer has (or has not) achieved an LFO by the AS rule –
My question is:Is it true (and apparently it has happened in the past) that it is possible for a developer, after he has submitted the necessary papers for an LFO (by the AS rule) and waited the necessary 3 months – that they can then write to the Town Hall and request an official stamped letter from them that confirms an LFO has been authorised by AS method?
If this is true, this letter could be the confirmation of proof that a LFO has been achieved by the AS rule. And non-production of such a letter could mean that the AS rule cannot be assumed.
Barbara
Drakan – is this procedure possible??
I have had over 12 pm’s from people in the last 36 hours asking me what they should do re. completing based on the AS rule (CDS), and the answer to my above question could at least give them a direction to pursue with their developer (if true).
Please, no-one else answer this time ( 😉 ), give Drakan (or Cesar??) a chance to answer. I really want this question clarified.
And please, no-one else pm me – am drowning in pm’s and I am not a lawyer – and I can’t give anyone my lawyer’s details, he is drowning too!
Sorry!Barbara
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Ok I apologise If I haven’t been to clear, but English is a foreign language for me.
The short aswer to your question Charlie is yes.
I’ll expand on that now.-
If a developer comes to me without a LFO but with the ASR in place (which basically means that all they have is a document that proves they asked at the Town Hall for a LFO but after three months obtained no reply from them) under a spanish law that rules Administrative Procedure of the Public Administrations they have actually obtained that LFO by the so-called Silence Rule.
Now, I have a problem, because using that legal loophole (but it is legal after all) they purpotedly have been granted a LFO. Right, that in theory sounds great and would make everyones life easier including us lawyers.
Now the problem comes when you complete and time goes by. Either my clients or myself are notified by the Town Hall that due to some kind of ilegality the LFO is not being granted and will not be granted any time soon …
The public utility companies under law require the LFO to hook you up to the main grid (although in many parts of Spain this requirement is actually waived, but that’s another story).
So my problem is that I have this typical Irish/British couple whom I’ve let down because I was pressured by the developer with the ASR in place to complete and I did so without a proper LFO. After completion the developer decides to cut off the water and electricity of works (de obras) because after all it’s him that’s paying it and as far as he is concerned he’s already sold off the development and walks away. So who is left with a problem after completion ?
The Utility companies won’t let my clients hook up to the utilities because they have no LFO, so they come back to me annoyed becaue I let them down and allowed myself to be pressed to complete. That’s the whole problem.
Is this clear so far ?
So really it takes a very careful study on my behalf so as to be sure to carry on and complete or else refuse to be pressurised. My concern is the welfare of my clients.
I know that either with or without a LFO I can complete. With the ASR the developer has legal grounds -albeit weak- to force me to complete or else face a breach of contract on my behalf (which is very discussible to say the least). But my concern is that after completing my clients will have to live there without utilities for months or even years on in the worst case scenario. Not to mention the distinct possibility (altough far-fetched IMHO) they might actually pull down a development If we are to believe the words of the Comisión Gestora of Marbella and other municipalities.
Is it clearer now ?
In short:
— completion with ASR in place and no LFO is legal but not very advisable in my opinion and problems -huge- can appear later on after completion. Although in some cases I advice to do so. Every development and every client are different.
It’s not the same case an affluent american that buys to invest and may wait and sue If necessary than a couple of British who have sold their home in the UK and are in fact moving down to Spain and have bought not as an investment but to live in it permanently. And this is not a legal matter at all but nevertheless I have to wheigh it.
The solution will have to be that Public Administrations are going to be forced to legalise all the 30.000 ilegal constructions. Perhaps they’ll pull down a few but that will be all. All this problem affects thousands of innocent foreign purchasers aswell as the image of Spain itself as a trustworthy tourist resort.
So eventually my opinion is that they’ll squeal (politicians, media obsessed with Operation Malaya) for a year or two until things cool down and then they’ll quietly legalise almost all ilegal constructions.
But on the meantime some families which have completed without there being LFO will have to put up without a regular water and electrical supply for months or even a year or two. No one knows at this stage for sure and that’s the truth.
But clearly some developments are very very badcases and some don’t look so bad at all. It is in these that although they have some king of minor ilegality that I advise to complete without a LFO, nevermind the ASR, because I’m sure that sooner or later the Town Hall will grant them the LFO. Hopefully sooner.
Oh, btw I’m on holiday. So I shouldn’t be writing here at all these weeks. 😉
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Serious reply now:
Drakan – you are a sweetheart, but if you were my lawyer, I’d shoot you – only kidding!!
Seriously you have done this question proud – enough now, just enjoy the rest of your holiday and bless you for your time and that MASSIVE answer. It is going to be a classic, and am sure that if anyone asks this question again, your answer is going to get requoted and requoted !
(They will be warned to bring a packed lunch and a sleeping bag….)If you ever come to Crete, the icecream is definitely on me! 😆
Barbara
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Drakan
many thanks and well done for your fantastic posts. As well as an excellent knowledge, you seem to have a good grasp on common sense. Why on earth (even allowing for greed/corruption) does that seem so lacking in the spanish system of justice, with regard to people being ‘ripped off’ by developers?
Have a great holiday.
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Fascinating! But how can AS be said to ‘work elsewhere in Spain’. Any problems just haven’t been found out yet. It seems to be a way of getting over manpower difficulties and putting ones head in the sand until tomorrow.
Lets assume that everybody is acting in a reasonable non-corrupt fashion. The project plans are put forward by the architect who erroneously believes that the project complies with the planning and building regulations. The town hall don’t do anything for three months and thus the permission is granted.
The project is constructed and overseen by an Arquitecto Tecnico who follows the Arquitects plans, as does the builder. The Arquitect inspects the building and declares it to be complete. The promoter then applies for the First Occupation Licence and that too is granted by AS. The banks grant the mortgages, the utilities connect the supplies, the owners move in and the developer moves away, job done. Nobody independent has inspected anything!
Ah, but a year later Seville notices that the building is partly built on Council owned land and the constrcttion doesn’t meet a crucial building regulation. It instructs the town hall to remove the FOL. The utilities are acting illegally so they stop supplies. The builder has retired having made his fortune and his company no longer exists. What happens to the poor owners? They can sue the arquitecto for Professional Incompetence and that’s about it.
And that’s if everyone is innocent? Other things are – Promoters deliberately doubling the permitted development, town halls taking backhanders to permit AS, building contractors cutting corners because the AT isn’t there much of the time and the arquitectos pressured by the Promoter to sign the completion certificate or he won’t get any more projects.
If it has become a criminal act for politicians and officers of Town Halls to grant a First Occupation Licence for something that doesn’t comply with all the legislation, surely that also applies to Licences ‘granted’ by AS?
If higher authorities have the right to withdraw the licence after it has been ‘granted’, it is always a Provisional licence and that isn’t the same as THE FOL as the law states developers must have before they can oblige buyers to complete and pay everything.
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