June 20, 2010 at 8:24 am #55696
Is the victim of a demolished home entitled to damages against the Spanish administration which granted the building license if the victim built a home according to said building license, but which was afterwards annulled because it infringed the law?
Article 35, section (d) of the Royal legislative Decree 2/2008, of 2th of June, says:
“In any case, injuries of goods and rights resulting from the following cases entitle to damages … (d) The annulment of administrative titles which grant the right to make buildings and activities as well as the unjustified delay in granting those titles and the inadmissible denial of said titles.”
However, the Spanish Courts have made clear that the simple fact of an annulment of a building license does not automatically entitle to damages.
Essentially, the Spanish Courts have ruled that the claimant must prove, amongst other things, that the damage is (1) effective (basically this means, that the injury has, firstly, a negative impact on the goods or rights of the victim and, secondly, that the damage is real and current), (2) economically measurable, (3) individualized to a person or group of persons and (4) that there is no obligation for the victim to burden the damage himself.
However, the 2nd sentence of the above mentioned law restricts and in some cases even totally excludes the entitlement to damages if the administration proves the following:
“There is no entitlement to damages if there is bad faith, substantial/seriousfault or negligence attributable to the victim.”
The Spanish Courts have ruled that this limitation or, eventually, total exclusion of responsibility is also applied if the injury/damage is also or only attributable to a third person (neither the victim nor the Spanish administration granting the license). In this case the entitlement to damages of the victim against the Spanish administration granting him the building license is reduced or, eventually, totally excluded.
Andrés Díez Bronzini
(Abogado & Rechtsanwalt)
June 21, 2010 at 10:45 am #99232
Obviously presented by a lawyer given all the legal jargon, plain English is better.
June 21, 2010 at 9:40 pm #99242
AS A RULE OF THUMB (please check each individual case with your lawyer, because this is, I repeat, only a rule of thumb, which simplifies legal situation for better understanding):
The annulment of a building license and the later demolition of the home does entitle the victim to damages against the Spanish administration.
However, the victim loses his entitlement to damages against the Spanish administration insofar as there is bad faith, gross fault or gross negligence attributable to the victim.
Simplified case study:
Day 1: Spanish administration grants building license to victim.
Day 2: victim starts building.
Day 30: victim has built kitchen, sleeping room, bathroom.
Day 31: Spanish administration tells victim to stop building immediately, because the building license is illegal.
Day 32: Victim starts building garage, room for children, terrace.
Day 40: Building license is annulled legally binding.
Day 60: Home is demolished.
Is the victim entitled to damages against the Spanish administration?
Regarding all the building he has made until day 30: kitchen, sleeping room, bathroom: yes. He will get the damages against the Spanish administration.
Regarding the remaining building expenses (garage, room for children, terrace): insofar the “victim” is not entitled to damages because he acted with gross fault and in bad faith.
Hope this helpful.
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