March 13, 2006 at 3:43 pm #51644
I have heard from a reliable source that the rule of Administrative Silence only applies to building licences and not Licences of First Occupation.
I am confused 😕
Can Drakan, Jose Maria, Cesar please confirm if this is true or not please?
March 14, 2006 at 1:01 am #61321
We already discussed this in an other post:
But In this particular issue I can tell you that under Spanish Law the ‘Administrative Silence’ is ruled roughly like this:
General Administrative Procedure Act (30/1992 Act) Says that, unless a Spanish or UE Law specifically says the contrary for a particular case, if the Administration does not answer you in the ruled deadline (general term is 3 months although some special proceedings have their own term) your request is granted.
There are four exceptions: 1.- You are requesting something forbidden or illegal; 2.- The constitutional petition right (when you request something that has no specific/ruled procedure) 3.- When your are requesting something that would give you rights over public property/services and 4.- When by your request you want an official act, statement, judgement or decission to be declared void. (more or less… I’m translating legal Spanish 😕 )
As far as I know (I do not practice there and I only have a general knowledge of their specific laws) in Andalucia this issue is also ruled by Andalusian Law 9/2001 which is similar to other Administrative Silence Laws in Spain. It has a detailed list of procedures where the positive silence cannot be applied (most are related with the 4 exceptions listed above) but concerning construction, planning and general building, every exception in this specific Law is related to Public Protected Housing, so as I said in the referred post:
If you had the right to have your LFO as your house was built observing planning regulations and those planning regulations do observe the regional land law.. then you would get your LFO in 3 months if the local authorities do not answer you…
But if you are asking for something illegal (imagine you ask for permission to build a house in a public park) or the local planning regulations are illegal: Marbella? Cabo de Gata?… you wont get your license as this rule cannot give you something that is forbidden… is just a rule made to soften bureaucracy not to overrule the law
Don’t know if andalusian authorities have lately modified this general principles, Drakan and Jose María, as I understand practicing in the South, may confirm this.
March 14, 2006 at 5:00 am #61322
Many thanks Cesar for your very full reply! (:shock:)
I’m afraid I can’t help smiling to myself because, as a simple ‘layman’, I can’t help wondering why the answer can’t just be a yes or no !!!!
These laws must be written by men – only they can make everything so damn complicated (oops…hope I don’t start a war here….)
I know, I know, the law isn’t that straightforward – BUT IT SHOULD BE!
I’m aware you kindly addressed this issue before, but this statement to me (re. my post above) was passed onto me yesterday like a bolt from the blue, and if true – would drastically affect a current situation.
Anyway, really appreciate your very full reply – will study it over my morning bowl of cornflakes! 😉
March 14, 2006 at 8:19 am #61323
So Sofia….does the “golden rule of silence” 😉 apply to the LFO or not…Or did the cornflakes not help you decide ? 🙂
I still cannot fathom it out. It seems to be a grey area, of which there appears to be a great deal in the Spanish legal system. No wonder every one is getting differing infomation about the LFO at Green Hills. It depends on who the interpreter is ❗ . 😕 😕
March 14, 2006 at 10:53 am #61326
Maybe I wasn’t too clear (It was really late when I posted my last reply) or maybe, as a Lawyer, I can’t help beeing cryptic 😳 There shouldn’t be any grey area. I meant the general rule is you will be granted with the LFO if you have the right to, if your house was built observing local planning regulations, if those also observe regional regulations and of course if you ask for it in the right place. You cannot require a LFO from a Council that has not the legal right to grant them (like in Marbella, the regional authorities may have revoked some planning competences)
There are Laws all over Spain regulating this rule specifically in this issue of the LFO. I am aware of them in Asturias, Galicia, both Castillas, Alicante, Valencia, Tenerife, Madrid, Euskadi, Aragon and Extremadura (only 2 months there)
Finally, what I wanted to say is that in Andalucia, unless this has been changed lately (something I don’t belive as it would break a general principle of Spanish Administrative Law that Andalusian Laws should follow) The answer is YES, the same rule applies: You will be granted with the LFO if you have the right to but the Council does not answer your request within the given date.
March 14, 2006 at 11:05 am #61328
Cesar, I understand that the lady from OMIC told Charlie that the Administrative Silence Law does not apply to the LFO, ESPECIALLY if the building Licence is under investigation as is the case we are talking about.
Thank you so much for taking the time to explain this to duffers like ourselves!! (and yes I am including “Charlie” in that context!!! 😀 )
March 16, 2006 at 9:13 am #61341
In short, no. Forget it. It’s true that law 30/92 upholds this but in practice will not be applicable at a Town Hall for a Licence of First Dwelling, at least in the South of Spain (far too many ilegal constructions). No idea in other parts of Spain.
March 16, 2006 at 10:22 am #61343
Drakan – Thank you, thank you, thank you
You have just made a group of people, about to enforce their Bank Guarantee, very happy 😆 😆 😆
The developer is trying to tell everybody ” don’t worry, we applied for the LFO in January and we will get it very soon now under the Administrative Silence” rule.
All the lawyers of this group (and the developer) are saying if the purchasers try to pull out now they will lose 50% or all their money.
This is despite the developers are already 5 months in breach of contract and building licence tied up in Town Planning under ‘review’.
March 16, 2006 at 10:24 am #61344
…..forgot to add that needless to say, all these lawyers have been fired! 😈
March 16, 2006 at 7:23 pm #61351
I’ve sent you a PM, plase read it
March 17, 2006 at 2:46 am #61354
Please do not misunderstand me. I’m not saying I’m unhappy with Drakan’s reply/point of view. In my PM to him I’m just asking if he can to give me additional information in some specific point of the Andalusian Law concerning this specific issue. He practices in Andalucia and he sure knows the Law there far better than me.
I do apologize as my last post could be understood in another way.
March 17, 2006 at 8:02 am #61355
I’ve PMed César.
In short and in the particular case of CDS-Marbella forget it.
It normally takes a minimum of a year to be granted by the Town Hall.
March 17, 2006 at 8:23 am #61356
I’m sorry to be pedantic Drakan, but “forget what“? Do you mean;
That the LFO, (as in the situations like that of the Green Hills scenario,where the BL is being investigated )cannot be granted on the the rule of “Administrative Silence”. If it is eventually granted, it could take a year or so to come through?.
I’m sorry to be so stupid, but it is very important for us to get our facts right. Too much depends on it.
very 😕 Claire
March 17, 2006 at 9:01 am #61358
Perhaps I haven’t made myself clear.
This rule of positive silence rules throughout Spain.
However, having said this, in the particular case of Marbella you’ll find in practice is not applicable to the best of my knowledge. In other parts of Spain I’m sure it works out fine.
If this were the case we would have to wait only a couple ofmonths everytime instead of having to wait fotr a year-year and a half.
Marbella’s Town Hall is going to lose it’s urbanistic empowerement to the Junta de Andalucía to restore the urbanistic legality. Perhaps after this change you will be able to enforce it. What is clear is that in Marbella there are plenty of ilegal constuction sites (over 200) and If this rule were applied they would be made legal de facto.
With a LFD granted by positive silence you would then be able to complete etc… and I’m afraid that is just not the case and the Junta de Andalucía will not allow it. There are approximately 10.000 ilegal dwellings in Marbella area alone. Using this rule they would all be made legal, do you understand ? I’m talking of irregular situations, not the cases when the BL has been granted and everything else is legal.
Hopefully this will change in a near future when the Junta takes over the Urban competence from Marbella Town Hall.
When applying for the LFD it takes on average one year- year and a half due to the massive backlog of properties. This has nothing to do with the positive silence rule in which case you wouldonly need to wait 3 months.
Theoretically yes, in practice no (for Marbella and some other municipalities) to the best of my knowledge.
March 17, 2006 at 9:39 am #61359
Thank you very much Drakan. Your reply is concise and NOW I understand it! 😀
March 17, 2006 at 11:13 am #61362
Drakan – you are a very patient man (re. Claire).
Look, I know her quite well (we’re in touch everyday).
But between you and me……..she’s a bit of a ‘duffer’.
You know what I mean, takes a bit of time to explain things.
And if I am honest with you, for a lot of the time the 💡 up top is often ‘switched off’.
Seriously speaking, before I lose a friend (!), want to say really appreciate both your and Cesar’s time given on this subject.
Now, like Bank Guarantees, Claire and I are EXPERTS
July 8, 2006 at 9:58 am #63447
I revive the thread for the benefit of those who are looking for information/lay advice on the subject
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