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Translated from Spanish
A court of Marbella protects a promoter who sold illegal floors
The sentence forces the buyers to fulfill the contract although the work license is annulled by the courts and there is permission of first no occupation. The judge says that it is not possible to be made responsible to the company of the irregularities
08.09.07 – HÉCTOR BARBOTTA
PROMOTION. The urbanization Santa Maria Green Hills, in the zone of Elviria. /JOSELE-LANZATriumph of the promoters in the courts of Marbella. The holder of the Court of First Instance number 3 of the locality has misestimated a demand interposed by the buyers of an illegal floor that refused to notarize the house after knowing that the license of the promotion was going to be revoked by the City council. The sentence considers that it is not possible to be made fall on the company the consequences of the municipal irregularities and forces the buyers to pay the coasts of the process.
The origin of the conflict took place when two British investors who had acquired a house in the residential set Santa Maria Green Hills demanded the promoter of the work, Marbella Vista Golf, to obtain the resolution of the contract by numerous breaches. Between these they mentioned the lack of license of first occupation and the legal situation of the promotion, on whose work license the manager of the City council of Marbella initiated to the last year an investigation of revision of office.
Later, the license was opposed by the contentious route of the administrative one, in a sentence that already has been accepted in the heat of by the City council. The promotion is a set of plurifamiliares houses raised in described ground house to unifamiliar leaned. Part of the construction also occupies ground destined to public roadway and parks and gardens
The buyers also adduced other irregularities, as it does not give of endorsement on the part of the constructor and the fact that the golf course had not been constructed anticipated in the project.
Affected
In the sentence, dictated by the Court of First Instance number 3 of Marbella and to which it has had periodic east access, the judge it considers that the possible responsibility that could be derived for the promoter “it has prevented that the buying plaintiffs have to their disposition” the house, reason why considers that the denouncers “have not been themselves affected by those circumstances”. The “circumstances” to which the sentence talks about are the legal situation of the building.
Also, in relation to the lack of a license of first occupation, the judge understands that she is not a breach on the part of the promoter, but, in any case “a delay, imputable, based on the circumstances, not necessarily to the salesman, but perhaps to the City council of Marbella”.
The license of the basic project was granted by the City council the 16 of October of 2002 to South Sema Investments, whose empowered Giovanni is the Italian industralist Piero Montaldo, stopped in the third phase of the “operation Malayan” and imputed by the judge of a presumed crime of bribe. Montaldo also is including in the complaint presented/displayed by the Anticorrupción Office of the public prosecutor by supposedly harmful agreements for the municipal interests. The work license was granted the 28 to him of April of 2003 by the then mayor, Julian Muñoz.
After obtaining the licenses, Montaldo sold the work in construction to the promoter, organization that now maintains the litigation with the buyers.
The affected ones have predicted to resort the sentence in appeal before the Provincial Hearing of Malaga.
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I’m astounded by this decision! So it means that a developer can build an illegal development, not be granted the all important LFO, but not be held responsible. 😯 😯 😯 😯 😯 😯
This proves 100% that there is no justice in Spain!!!!!!!!!!
But I forgot….they were investors, so they account for nothing! 😈 😈 😈
Should everyone sue the Marbella Town Hall. ❓ But it wasn’t their fault! 😯 It was Jesus Gil….and he’s dead! -
Claire
This will be the tip of a very big iceberg as the L.F.O situation was never going to be won.
Yes it is good advice not to complete without the paperwork however as can now be seen it cant be used to not to complete in the end.
Marbella will be years ahead of the other areas in Spain as their corruption mess will be sorted where the rest it will just be the start.
Think I know which area I would put a bet on with prices similar along the coast.Frank 8)
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@Just Frank wrote:
Claire
Yes it is good advice not to complete without the paperwork however as can now be seen it cant be used to not to complete in the end.This is because the laws are not implemented. If this is how the cases are going to go, then corruption reigns supreme in Spain. IMO.
As you have said so often…people are wasting their money going to Court. They should just pay up and shut up and let the developers screw the people.! 😈
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Claire/Katy
Beleive me I totally agree with both of you 100% and would support everyone to fight the corruption.
Any argument is not with me,as I am one that just has to look at the facts and this stupid court ruling is hardly a suprising decision.
As you say Claire this proves 100% that there is no justice in Spain and is a sad fact.
Before anyone says that there are laws to protect us then, if they would be sooo kind to let us know why they are ignored.Frank 8)
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“Just Frank”].
and this stupid court ruling is hardly a suprising decision.
Not surprising? It’s astonishing!!!
Quote:(from article)
Part of the construction also occupies ground destined to public roadway and parks and gardensAnd what happens a few years down the line.? How will people have confidence that the Town hall will not come knocking and say ” Your property is on designated land. It has to be demolished”
It stinks. 😈
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@Inez wrote:
Surely by the court ruling they must complete would be a strong argument for legalization??
Logic would dictate that in most civilized societies Inez, which in itself speaks volumes about Spanish justice.
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disgusting!!…….who on earth would advise buying in to this country, with a justice system like this??. I realise many are and will continue to do so (in smaller numbers) , but this to me proves, that justice in Spain is at best like russian roulette. Surely as a part of Europe, the courts have some obligation not to cheat and lie to whoever they wish?? If this were not so serious for all concerned, it would be hilarious and probably look far fetched in a comedy farce!!
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Re. this case, it was against the developer (and not the bank) as they had never provided a Bank Garantee as they were legally obliged to do.
The developer accepted in court that nobody informed these purchasers about:
1) the fact the building license had been suspended
2) that no private golf gourse for use by owners only was going to be built as originally planned for the development, one of the many attractions of buying there in the first place.In the new Marbella´s PGOU both urbanizations, Green Hills and Los Lagos are catalogued as “illegal”, but with different ‘levels’ of illegality.
This judge is ‘obliging’ a purchaser to complete on a property where the building licence is currently suspended and under judicial review, it’s current status is ‘illegal’ and there is no LFO.
And for not wanting to complete in this ‘precarious’ situation and taking it to court to get monies refunded, these purchasers are charged with paying the developer’s costs.Marbellas´s own Town Hall architect confirmed to the court the urbanization was currently illegal.
Justice in Spain? No comment.
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Well done Paul for finding link – better than my ‘attachment’ !
Inez – I think there needs to be a ruling in the higher court once and for all on these situations/types of cases.
The ruling in this case is not a ‘definitive resolution’ and an appeal in the High Court in Málaga is essential in my view.
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But as Charlie said Inez. these people have got to pay the developers costs + complete…and now pay to instigate an appeal in the High Court.
I understand, having been told many times, that “things are different in Spain” but surely, under these circumstances, the Judge should not have awarded the case in the developers favour.
I ask this question? What does it take, what scenario would it be, for the claimant to win against the developer?”
Maybe the answer is an impartial Judge. 😯
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@Claire wrote:
I ask this question? What does it take, what scenario would it be, for the claimant to win against the developer?”
Maybe the answer is an impartial Judge. 😯
Since this decision has surely established that this is not going to happen in Spain, perhaps the safest route would be for NO-ONE to buy is Spain – off-plan or anything else – until the legal system proves that it is capable of protecting the rights of the consumer.
Does Mark have the courage to support this stance in the Sunday Times?
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The problem is Tilly, people will always want to buy in Spain for one reason or another. We are often reminded that to every 1 unsucessful purchase made there are 100 sucessful ones. It would be the best result if we could really make our voices heard where it matters until this rife corruption and injustice is halted in its tracks once and for all. So far, it appears our efforts seem to be slow in bearing fruit. 🙁
It has made my husband & I rethink about buying in Spain at the moment. The fears are haunting us again! -
tilly
you might be right?, perphaps a blanket boycott on buying in Spain until the courts agree to abide by acceptable laws based on common sense, would be the way to go?, and if that was employed, as a spin-off, Spain could perphaps evem market itself as being safer than the emerging markets? How would that be organised though?, and in the meantime, how many of the good guys (some of who post on here), would go bust? Surely some sort of EU buyers rights should come in to play here, or would it be the standard answer ” we cannot interfere with another EU countrys laws”?
I guess it’s up to everyone to make up their own mind. This just highlights to me that the risks of buying in Spain are far more than just loss/gain through market conditions. More like a ‘free-for-all’ for crooks, if this case is anything to go by!
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@Claire wrote:
We are often reminded that to every 1 unsucessful purchase made there are 100 sucessful ones.
That may be true – but how many of these representative one hundred are either ‘making-do’ with less than they were sold or are not even aware that they have problems which will will become apparent in the future.
We fall into the first category – we have reached the point where we are grateful that we have a house, albeit without any of the amenities in the sales blurb. This applies to approximately 800 houses currently. The second urbanization being built by the same developer has been halted now for almost two years because they did not have a legal bulding licence. Not sure how many are affected, but at least several hundred. Compared with the people who have put money down on those houses, we are lucky, but I still wouldn’t include us in the one hundred.
Another local development I know of has inumerable legal problems, which have been ongoing for more than a few years. May of the purchasers are perfectly happy, but this does not make it right that they have been badly let down by a system which allows a large developer take money from people without giving them their full legal rights. There are several thousand of them, and I wouldn’t include them in the one hundred either.
So, suppose the the number of houses I am talking about is 4,000, can someone name 400,000 sucessful purchasers to offset just these?
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Well Tilly all I can say if is this the case I do not understand why folk completed on the development.
By doing so it tells promoters/developers they can do what they like and the Brit’s will just accept it.
From what you write it seems they are correct.
Is it any wonder those who prefer not to accept the situation have a BIG battle on their hands. -
@Melosine wrote:
…..all I can say if is this the case I do not understand why folk completed on the development.
Melosine – I do know that the developer sent out letters demanding purchasers complete by a certain date otherwise they will start court proceedings.
If you then couple that with being unfortunate enough to have a lawyer who, being ‘somewhat’ biased to the developer, advises that it’s best to complete because the letter is fact, then there are those who would have felt they had no other option.Remember this?
http://www.spanishpropertyinsight.com/forums/viewtopic.php?t=2364&highlight=jdsos -
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Not many have completed as this was very much an investors development being much cheaper than its sister development Los Lagos.
The bottom line appears to be is that if this ruling had gone against the developer then bankruptcy would have followed with a splash that would have sent the tidal wave through markets.To award costs in favour of the defendent appears on the face of it as a dont waste your time and money message from the courts.
👿
We were all investors in it to make money and the view from the courts that we are as guilty as the developers and they alone are not responsible for the corruption in the councils and we all must take our share of the losses.( I again ask those that say there is a legal system that works to protect us to speak up) 👿The various councils such as Marbella are possibly bankrupt,the buildings on numerous developments throughout Spain have been completed as per the bank guarantee (Even though it may be corrupt) and the developers havent got any money left as its in some bank account far,far away.
This just the start of it and it will continue throughout many areas of Spain as the attention is on Marbella at the moment however this will go on years after they put their house in order.
In short the clock simply cant be turned back,like it or not.The sad fact is that its the good old lawyers that will win in the end as each takes their claim to court only to have this type of result. 😈
The only possible way to even make a dent would be a collective stance against the corrupt system and not cases on an individual basis. 🙄
However this will never be allowed to happen. 😥 and certainly not through a newpaper forum as rightly so the editor has to protect his companies interests.Frank 8)
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Hi
Well Tilly all I can say if is this the case I do not understand why folk completed on the development.
Because some have been offered a discount to “make up” for the lost amenity of the golf course and are happy, firmly believing it will all come out in the wash? We’ve had this discussion before and the consensus was that all LFO, illegal build problems will go away soon. So I think it’s pointless discussing the merits of buying or making do.
None of us commenting so far has had sight of the judgement, the purchase contract or any of the other paperwork (have we?). It appears from the translation of the newspaper I’ve seen that the Judge is saying it’s not the developers fault that the Town Hall changed it’s mind, cancelled one half of the development, cancelled the golf course and now won’t give it a LFO. Clearly it’s not the poor sods that have bought either, maybe it’s time that the people who have bought and are upset, join forces with the developer to get something done and fight for some sort of compensation from the Town Hall. Spending money fighting the wrong people seems to be a waste of time and clearly this judge thinks the wrong people have been accused of wrong doing, s/he say it’s the Town Hall. I also bet, that if a bank guarantee had been in place the same thing would have happened so the lack of one is academic really.
Clearly for those trying to get out of purchase agreements because of delays, illegal (for now) builds and lack of LFO a rethink is required and i don’t have an answer apart from negotiation with the developer for a settlement or joint action
Just my view
Regards
Paul
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Only 32 out of 192/6 apartments have been completed on. Frank is one of those who completed. Not everyone was an investor. I know that for a fact. Los Lagos is an inferior development and not more expensive than Green Hills.
The bottom line appears to be is that if this ruling had gone against the developer then bankruptcy would have followed
Says who? 😕
In view of your opinion Frank, are you going to complete on your other apartment? 😉
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Los Lagos is an inferior development and not more expensive than Green Hills.
http://www.golf-online.biz/properties4.asp?r=26&b=1
and
http://www.golf-online.biz/properties4.asp?r=27&b=1
not that it has anything to do with the point
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I played golf with someone who has completed in total ignorance there. I did not say anything about the place just asked if it was Ok and he said except for a bit of disappointment with the quality finish he was pleased overall. Maybe I should have said something but suppose it would make little difference now, just hope it works out for everyone who is caught up in the mess.
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Hi Maria,
As always your opinion is much respected. The case is being appealed in the High Court in Malaga.Given the circumstances surrounding this case and others in similar position, I fail to understand how the judge came to his verdict when, you and other lawyers agree it is a travesty of justice.
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Maria
thank heavens for common sense!
surely those who buy in good faith from the developer, should be compensated by the developer?, and then it’s up to the developer to take up their fight with the local council, and so on. For the buyer at the end of the chain to have to foot the bill or even face a higher court because the council may have screwed the developer seems utter madness as well as being completely unjust.
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In my opinion, the case needs to be analized under the principles of Private Law: contract as they are now implemented by the principles of consumers law. Nothing to do with whatever has happened in the Administrative realm of the granting of licenses!!. According to this body of law, there is a breach of contract which deserves cancellation and full refund of money plus interests to the purchaser. The consequences of the lack of FOL needs to be charged on developer, whatever are the claim this developer can ( or cannot!!) oposse to Local Council. Of course, you, the purchasers ( consumers) don´t have to bear the weight arised as a consequence of illegality.
A good defense in the Allegation´s Court!! in Malaga.
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Whilst many of us are shocked at the Court judgement in this particular case, those with imminent hearings must not loose heart.
A person pm’d me today to say how shocked they were to read about this case, and told me of their experience with taking a developer to Court. Earlier this year, they won their case. They successfully got their deposit back after bringing the La Reserva de Marbella developer to court.
However it cost 10,000 Euro in legal fees. They thought about pursuing the developer for their legal fees but their lawyer advised it would be at least November before the case would be heard and there was no guarantee of winning. Indeed they were told there was a possibility of losing what had already been won.
They decided that a ‘bird in the hand, etc’ was best.
They are now very pleased with the decision they took due to the recent Marbella court case in which the developers won.
They wondered though if this will have a profound effect on the decision making by the various Judges on similar cases? 😕This person who does not wish to be named, thought it would give hope to people in a like situation for me to tell the forum members of their case.
In light of a successful case, let’s remain positive. 🙂
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Great to read of a good result!
What I find depressing though is that it seems justice in Spain has become a bit like pot-luck, all depending on which judge you get.
This is not how it is supposed to be – judges are supposed to make judgements based on law, not on their personal opinions/views.Maria – many thanks as always for your valued input. We’re learning all the time!
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I did post this news about La Reserva several weeks ago but was asked not to go into detail about it on here. However, this ruling was given to someone who would be classified as ‘an investor’ so this is vital information, and I have let all I know at LR of this – with the permission of the person concerned of course.
p.s. It was granted at the ‘Preliminary Hearing’.
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I’m getting some distressing messages over this ruling, & think it’s important to remember that some people are getting their money back. Charlie & Claire have both had their deposits back & they continue to post on this forum, but I suspect that many who have been successful probably never want to hear any more five letter words beginning with S, ever again and won’t spend time on forums such as this one. As is the case with the returned deposit at La Reserva, some don’t even feel able to post such good news & state publicly who they are, for various reasons – and this can also lead to confusion, particularly when they were previously posting. Hence more PMs, asking what is going on.
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PLease know that frustration coming out from Judge decissions is everyday´s bread in the life of a lawyer. Nothing surprising.
Also, take in mind that Judges apply law according to the evidences and the defense brought to them, that is the reason why a decission on very similar issues ( never the same) can be so different: different person judging, different evidences brought, different defense acted.
It happens in every country.
Justice does not finish in first instance courts.
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Marbella’s´s own Town Hall architect confirmed to the court the urbanization was currently illegal.
Maria, IMHO, this alone is evidence enough that the people concerned in this instance should have won the case. They had no bank guarantee either. To award the developer their costs was adding insult to injury. It was based on the “It’s not the developers fault that the Town Hall revoked the licence” 😯 Where did the fact that the developers did not heed the original BL to build Town Houses and that it was through bribery to Jesus Gil that led to apartment blocks which were then stopped. The whole development is miles away from what it should have been. Misrepresentation in the extreme.
All of these cases affected by the corruption in Marbella should be heard in other provinces, not the Marbella Court IMO. It is too incestuous, as has been proven by many lawyers being onside with the developers.
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@mariadecastro wrote:
It happens in every country.
This principle is very true Maria. My comment was merely to emphasise the point that we don’t hear all Spanish court case results on this forum. As you say Maria, the case quoted is not the end of the matter or a Final Ruling, and not everyone is having this same experience.
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Yes but under common law a previous precedent would be taken strongly into account. Where the basics are the same, and they must be in the same development surely, then the same final ruling should be applied!
One would think!
But as our lawyer always says…every case is different, even if it is from the same development . If what you say Inez, were the case, then why when a case is succesful, are the following ones not given the same positive verdict? 😕
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Our system is not the Common Law Legal system but Civil Law, also called Code System, where we are not that attached to previous, similar cases.
Provision 1 of Spanish Civil Code
Artículo 1 del Codigo Civil
1. Las fuentes del ordenamiento jurídico español son la Ley, la costumbre y los principios generales del derecho.
2. Carecerán de validez las disposiciones que contradigan otra de rango superior.
3. La costumbre sólo regirá en defecto de Ley aplicable, siempre que no sea contraria a la moral o al orden público y que resulte probada.
Los usos jurídicos que no sean meramente interpretativos de una declaración de voluntad tendrán la consideración de costumbre.
4. Los principios generales del derecho se aplicarán en defecto de Ley o costumbre, sin perjuicio de su carácter informador del ordenamiento jurídico.
5. Las normas jurídicas contenidas en los tratados internacionales no serán de aplicación directa en España en tanto no hayan pasado a formar parte del ordenamiento interno mediante su publicación íntegra en el Boletín Oficial del Estado.
6. La jurisprudencia complementará el ordenamiento jurídico con la doctrina que, de modo reiterado, establezca el Tribunal Supremo al interpretar y aplicar la Ley, la costumbre y los principios generales del derecho.
6. Court cases will complement the legal order, by the reiterated Decissions of the Supreme Court, when interpreting and aplying the Law, the uses and the general principles of Law.
7. Los Jueces y Tribunales tienen el deber inexcusable de resolver en todo caso los asuntos de que conozcan, ateniéndose al sistema de fuentes establecido.
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