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Am re-posting this from a previous thread, in case anyone purchasing at Los Lagos missed it:
Last month, on August 16th, Marbella Town Hall Planning Dept. rejected the developer’s application for a Licence of First Occupation through Administrative Silence for Los Lagos, Santa Maria Golf……on two grounds.
One of the reasons stated is that the building licence for Los Lagos was based on an illegal plan for the area (one of the corrupt Mayor Gil’s own plans).
The building licence was not in accordance with the Junta’s 1986 PGOU plan – which allowed only the building of townhouses or individual houses. Not 340 apartments!
Therefore application for LFO rejected, and the building licence is now waiting for a judicial review.
If you are being pressed to complete on this development – or threatened to complete or you’ll lose 50% as in some cases I know –
tell them to ‘take a hike’. -
According to what my lawyer has found out, the area at Los Lagos is not a green zone, which at least could be in our favour when the building plan is under review. There is not much that can be done regarding the apartments unless they get pulled down which I think is very unlikely. I do think we have a very good case to get our money back, taking into consideration that the building licence has been revoked for reasons given in Charlies thread. I, myself, has not been under any pressure to complete either from the developers or my lawyer. My BG expired in November last year! I am having another meeting with my lawyer soon and will post any information I get.
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Hi Laggen
My BG expired in November last year!
My understanding of a BG (in the UK anyway) is that it’s like an insurance policy and rather than expires it matures, so i would guess you should / could with sufficient grounds claim against it, at any time after the maturity.
I would be interested to know how you go on with your lawyer and his / her understanding of it.
Regards
Paul
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@laggen wrote:
Hi p800aul, He told me because we hadn´t used it before the end of November 2005, it was too late.
And ?
Once the BG or IP expires you can renew it. I do this very often for my clients.
@p800aul wrote:
My understanding of a BG (in the UK anyway) is that it’s like an insurance policy and rather than expires it matures, so i would guess you should / could with sufficient grounds claim against it, at any time after the maturity.
P800aul,
Your undertstanding is wrong. Once it expires you cannot execute it. You have to renew it first setting a new deadline and only then execute it.
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He told me because we hadn´t used it before the end of November 2005, it was too late
Then i do not see the point, they still have your money and the property is not finished so you still need a BG surely? If it is the case then the lawyer should be asking for a further guarantee after the November deadline.
Looks like Drakan beat me to it, thanks for the information.
Regards
Paul
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@laggen wrote:
Hi p800aul, He told me because we hadn´t used it before the end of November 2005, it was too late.
Sounds like you may need a new lawyer……. 🙄
Like Isabella’s lawyer, giving wrong advice.
Are these particular lawyers corrupt and in the pockets of the developers, or are they just plain ignorant of the law?
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I am pretty sure my lawyer is o.k. I have never had any reason to doubt his honesty or integrity. I think what happened was that we were ready to complete in August 2005. The apartment was ready and we were only waiting for the LFO, so he propbably did not see the reason to renew the BG. Easy with hind sight to be wise. I am quite hopeful that everything will turn out o.k one way or another. 🙄 For people who wants their money back, there are very strong arguments for that to happen altough it will probably take some time. For the rest, I don´t think anything will happen to the apartments, the development looks good even if they dont look anything like the properties we were shown on the plan.Too optimistic? Hope not.
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Hi laggen
I personally would recommend it may be advisable to ask your lawyer to obtain a new Bank Guarantee – just as a safety net for your monies paid.
At the moment you are very ‘exposed’ –
and as it is always written here by contributing lawyers, it is essential to have a Bank Guarantee.
Just as important now as when you first purchased.The Bank Guarantee is essential to cover you right up until your day at the notary office to complete.
Just my opinion.
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Claire and my lawyer, Carlos, has been reading the forum again!
Sent me this e-mail:Dear “Charlie”,
I´ve just checked your recent post on the Forum about renewing the Bank Guarantee.
I´m sure you know item nr.4 of this law (57/1968) which regulates Bank Guarantees.
(“No Carlos I don’t!!!”)
This is:“Artículo 4
Expedida la cédula de habitabilidad por la Delegación Provincial del Ministerio de la Vivienda y acreditada por el promotor la entrega de la vivienda al comprador, se cancelarán las garantías otorgadas por la Entidad aseguradora o avalista.”
Basically it means that the BG is cancelled only on the day of completion, after receiving LFO.
So, really any BG with an “expiry date” should be considered illegal.
I hope this info can help the forum.
Carlos
What I want to know is if one has a Bank Guarantee with an expiry date, and this expiry date has expired – is it necessary to obtain a new one, or would the bank be obliged to honour the BG regardless of an expired date?
For those interested in this scenario, will post again if I get another e-mail ! -
@charlie wrote:
“Artículo 4
Expedida la cédula de habitabilidad por la Delegación Provincial del Ministerio de la Vivienda y acreditada por el promotor la entrega de la vivienda al comprador, se cancelarán las garantías otorgadas por la Entidad aseguradora o avalista.”
Basically it means that the BG is cancelled only on the day of completion, after receiving LFO.
So, really any BG with an “expiry date” should be considered illegal.
Reading this new post on the forum , then surely any BANK that issues a guarantee with an expiry date, mine was dated to expire December 2005, has ALSO put themselves in the position of having legal proceedings against THEMSELVES or meet the contractual terms and pay back any deposits..?.
If the law stands correct, then anyone with a BG for Los Lagos can ignore the expiry date and , as the architect has signed off the site as complete, November 2005, and with the LFO being rejected, the developer is unable to deliver the property, then the purchasers are legally permitted to claim their money back FROM THE BANK.
Correct ??.. may I be 1st. in line please ?
David.
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@charlie wrote:
What I want to know is if one has a Bank Guarantee with an expiry date, and this expiry date has expired – is it necessary to obtain a new one, or would the bank be obliged to honour the BG regardless of an expired date?
For those interested in this scenario, will post again if I get another e-mail !The bank/Insurance Companay are not obliged with an expired BG. That’s why the job of a lawyer is to make sure that there is always a valid BG.
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Thank you Drakan – now I do know everything there is to know about Bank Guarantees…..can I take my exam now 😉
(Drakan has been teaching me about Bank Guarantees since October 2005!)Oh no, wait a minute. But is it actually ‘illegal’ for a Bank Guarantee to have an expiry date in the first place?
Surely this goes against the intent of the law when making BG’s a legal requirement.
(You thought you had finished with me on this subject, didn’t you 😆 )Barbara
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Confused moi? Still don´t understand the position re BG´s! If the BG has expired, then surely we can´t make any claims against it. If in my and Davids case it expired at the end of 2005, would it be possible to renew it 8 months down the line? Seems unlikely. In my case, since we were about to complete in August 2005 my lawyer obviously felt there was no need to renew it. I suppose, with hindsight, when we didn´t complete because of lack of LFO by the end ov November,we should have. Why would a bank issue a BG with an expiery date if it is ilegal?
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As I understand it, a bank guarantee can be issued either with or without an expiry date. Either is legal and it’s probably cheaper for the developer to take out a BG WITH an expiry date than to take out an open-ended one.
If it has an expiry date then this is usually the date of receipt of goods or provision of the service. So, with a building contract, the expiry date will be the anticipated completion date. If the completion date overruns, then application must be made to extend the expiry date, incurring, I imagine a cost to the developer.
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If a Bank Guarantee has expired, you can not claim against it.
It is useless, may as well throw it in the bin.If you are not in a position to complete yet and your Bank Guarantee has expired, it is your lawyer’s job to apply to the developer to issue a new one.
A developer is legally obliged to issue a purchaser of an off-plan with a Bank Guarantee that gives coverage until the day you complete.
If you have no ‘current’ Bank Guarantee in place, and your development is not ready to complete on (for various reasons, such as no LFO yet, or building licence under investigation etc. etc.) you are in a very vulnerable position regarding your deposit monies.
And if by any chance your developer goes bust, or renegades on his loan payments to the lending bank, it is the bank who has first grabs (priority) on your property, not you. Until you complete and then register the property in your name, it belongs more to the lending bank than it does to you. It is an asset of the developer that will be called in by the Bank.
You will be left nowhere except out of pocket re. your deposit.
That is the difference between having a valid Bank Guarantee and not having one.As I said before earlier on this thread Christina, I would strongly recommend getting your lawyer to insist the developer issues a new Bank Guarantee – no matter how late in the day it is.
Especially with the precarious position of Los Lagos at the moment.
You now have the proof the LFO has been rejected by the Town Hall – all the reason in the world why you must get one.Hope the above makes it clearer.
Barbara
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I’ve been following this thread diligently and as a result of Drakan’s good advice I asked my lawyer for a copy of the BG. The good news is that one existed. The bad news is that it expired in December 2005!
Again following Drakan’s advice I instructed him to contact the Developer to obtain a valid BG to which his reply was:
“It would not be the developer but the bank. The bank guarantee was granted for final works certificate and not for FOL. The bank would not issue any other guarantee.”
What do I say to him now? Is he bluffing? Is he correct? I am feeling very exposed here.
Mike
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A BG is issued for stage payments against an off plan and is there to protect your payments until the house is delivered to you on completion at the notary’s office and has complied with all rules and regulations.
The law governing these BGs was not made to be altered according to the whims of any developer. i.e. with an expiry date ( 🙄 ) upon issuing the certificate of end of works!
The idea of the BG is that it is only cancelled on completion day!This certificate (COEW) states nothing else other than the fact that the architect considers his work finished. So what?
A building without an LFO means that it has not been checked by the proper govt authorities to ensure that it complies first with its building licence and then that it complies with all the rules and regulations re. buildings (safety, construction, wiring, sanitary, water etc etc etc) and given the OK for habitation. If it does not have an LFO that means that it does not legally fulfil its main purpose: HABITATION!!!!
The developers can say whatever they like in the contracts. It is not the first illegal clause found in them anyway. However, just because they say so it does not mean that it is legal and it does not diminish your legal rights according to the law.
ASK FOR ANOTHER BG!!!!!!
Katerina
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@makems wrote:
Again following Drakan’s advice I instructed him to contact the Developer to obtain a valid BG to which his reply was:
“It would not be the developer but the bank. The bank guarantee was granted for final works certificate and not for FOL. The bank would not issue any other guarantee.”
What do I say to him now? Is he bluffing? Is he correct? I am feeling very exposed here.
Mike
So what charlie is saying then makems, is you tell your lawyer he is talking …..B******S!!!!!! Why are there so many ill informed lawyers practicing in Spain??
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@charlie wrote:
Last month, on August 16th, Marbella Town Hall Planning Dept. rejected the developer’s application for a Licence of First Occupation through Administrative Silence for Los Lagos, Santa Maria Golf……on two grounds.
One of the reasons stated is that the building licence for Los Lagos was based on an illegal plan for the area (one of the corrupt Mayor Gil’s own plans).
The building licence was not in accordance with the Junta’s 1986 PGOU plan – which allowed only the building of townhouses or individual houses. Not 340 apartments!
Therefore application for LFO rejected, and the building licence is now waiting for a judicial review.
p800aul – The above info did not come from a news article.
I have seen a copy of the original statement from the Marbella Town Hall’s Planning Dept. dated 16th August 2006 that stated the above. -
@charlie wrote:
Last month, on August 16th, Marbella Town Hall Planning Dept. rejected the developer’s application for a Licence of First Occupation through Administrative Silence for Los Lagos, Santa Maria Golf……on two grounds.
One of the reasons stated is that the building licence for Los Lagos was based on an illegal plan for the area (one of the corrupt Mayor Gil’s own plans).
The building licence was not in accordance with the Junta’s 1986 PGOU plan – which allowed only the building of townhouses or individual houses. Not 340 apartments!
Therefore application for LFO rejected, and the building licence is now waiting for a judicial review.
p800aul – The above info did not come from a news article.
I have seen a copy of the original statement from the Marbella Town Hall’s Planning Dept. dated 16th August 2006 that stated the above. -
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Hi
I sent the link to this thread to the company dealing with Los Lagos and this is the response I got.
I would like to make clear that the statement that the thread refers to says that the Town Hall does not recognize the LFO to be granted through “Administrative Silence”. In no case has it been said that the LFO has been refused. It is matter of opinion. The developer understands the LFO to be granted, since it can no longer be refused while some people do not recognize the administrative silence. It is true that all Licences are being reviewed. We have spoken to the Interim Committee and what they are looking to do is to “formalize” all existing Licences through “compensation”. I.e. they will be asking for money to issue a Licence. This will also apply to all developments, not just new ones
Be clear i am only reproducing the reply i got for everyones information, so don’t shoot me 🙂
regards
Paul
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Hi
I sent the link to this thread to the company dealing with Los Lagos and this is the response I got.
I would like to make clear that the statement that the thread refers to says that the Town Hall does not recognize the LFO to be granted through “Administrative Silence”. In no case has it been said that the LFO has been refused. It is matter of opinion. The developer understands the LFO to be granted, since it can no longer be refused while some people do not recognize the administrative silence. It is true that all Licences are being reviewed. We have spoken to the Interim Committee and what they are looking to do is to “formalize” all existing Licences through “compensation”. I.e. they will be asking for money to issue a Licence. This will also apply to all developments, not just new ones
Be clear i am only reproducing the reply i got for everyones information, so don’t shoot me 🙂
regards
Paul
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Paul, you have probably read the recent articles in Diariosur and Surinenglish, but just in case………………….
Santa Maria Green Hills and Los Lagos……………..The licences in question were granted in 2002 and 2003 by Marbella Town Hall and clearly violate the planning regulations in force at this time, according to sources from the Planning Dept. who maintain that neither of the two developments is likely to be given the LFO.
http://www.surinenglish.com/noticias.php?Noticia=9665&Week=216
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Paul, you have probably read the recent articles in Diariosur and Surinenglish, but just in case………………….
Santa Maria Green Hills and Los Lagos……………..The licences in question were granted in 2002 and 2003 by Marbella Town Hall and clearly violate the planning regulations in force at this time, according to sources from the Planning Dept. who maintain that neither of the two developments is likely to be given the LFO.
http://www.surinenglish.com/noticias.php?Noticia=9665&Week=216
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@p800aul wrote:
I would like to make clear that the statement that the thread refers to says that the Town Hall does not recognize the LFO to be granted through “Administrative Silence”.
So far so good….we are all clear on that one then.
In no case has it been said that the LFO has been refused.
I have no idea if one has been applied for and it has been refused (though one has to query if they haven’t made an application, why not?) but that is not the point that is being made.
What happens in the future – nobody knows, but currently no LFO for Los Lagos can be ‘assumed’ at this present time. Therefore no purchaser can be forced to complete, or threatened with losing their deposit if they don’t complete.It is matter of opinion. The developer understands the LFO to be granted, since it can no longer be refused while some people do not recognize the administrative silence. 😕 😕 😕
To quote Tony Blair in the H of C. “I refer to my reply I gave earlier”.
The developer can ‘understand’ whatever he likes….they are the facts.
And until licences are reviewed and something is agreed either way in the future, Los Lagos does not currently have a Licence of First Occupation.Be clear i am only reproducing the reply i got for everyones information, so don’t shoot me 🙂
It’s not you that needs shooting, Paul…. 😈
regards
Paul
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@p800aul wrote:
I would like to make clear that the statement that the thread refers to says that the Town Hall does not recognize the LFO to be granted through “Administrative Silence”.
So far so good….we are all clear on that one then.
In no case has it been said that the LFO has been refused.
I have no idea if one has been applied for and it has been refused (though one has to query if they haven’t made an application, why not?) but that is not the point that is being made.
What happens in the future – nobody knows, but currently no LFO for Los Lagos can be ‘assumed’ at this present time. Therefore no purchaser can be forced to complete, or threatened with losing their deposit if they don’t complete.It is matter of opinion. The developer understands the LFO to be granted, since it can no longer be refused while some people do not recognize the administrative silence. 😕 😕 😕
To quote Tony Blair in the H of C. “I refer to my reply I gave earlier”.
The developer can ‘understand’ whatever he likes….they are the facts.
And until licences are reviewed and something is agreed either way in the future, Los Lagos does not currently have a Licence of First Occupation.Be clear i am only reproducing the reply i got for everyones information, so don’t shoot me 🙂
It’s not you that needs shooting, Paul…. 😈
regards
Paul
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