Lawbird Legal Services has obtained a favourable Court ruling in a Group Legal Action in a first ruling against property developer La Reserva de Marbella S.A., on the 15th March 2010, acting on behalf of a group of British clients.
Our clients had purchased off-plan property from La Reserva de Marbella S.A. for a number of units at the 400-unit development called La Reserva de Marbella, Elviria, Marbella East (Málaga), and invoked contractual rescission on mainly 2 grounds:
- The property did not have a valid license of habitation (or first occupation)
- The properties had been delivered late.
The defendants lawyer (a former Attorney General’s office solicitor) put up a very qualified defence based on the following:
- That the claimants were investors and not end-user buyers.
- That lawyers were retained to ensure that the legalities were complied with when contracts were signed.
- That since the administrative Court case filed by the Andalusian Government expired, further invoking that as a result the license had been approved by “administrative silence”, the aforementioned license was fully valid.
- That the properties had been delivered on time as the 7 month delay was fully attributable to strikes.
Our solicitors successfully challenged each of the lines of defence put up by the defendants’ lawyers, and obtained a favourable ruling based on the following legal grounds:
- That the license of occupancy had not been granted at the time of cancellation of the contract, and if fact it is still not been granted, even though the judges stresses the fact that it is not for him to decide if the license if valid or not but the administrative Courts, which have exclusive jurisdiction over this matter.
- That although the properties had been finished only few months after the designated time, these properties were not able to be legally transferred until the license of occupancy was validly granted, which was not the case as the Town Hall in Marbella had rejected it.
- That as a result of the lack of licence, the properties could not be delivered with the necessary conditions of habitability, security and salubrity, which is a mandatory pre-requisite to handing over a finished property.
Having accepted our claim in full, the judge ordered the defendant to:
- Refund the principal amount, this being the deposits paid on account of the price.
- Pay legal interest since the time the deposits were paid and not when the contracts were cancelled, increased in 2 points from the time of issuing of the ruling.
- Pay the legal costs (which effectively means that our clients would have the legal fees reimbursed).
It is important to note that, in this particular case, our clients were requested to attend the Court hearing on petition of the defendants, which we could not refuse, and therefore they had to fly to Spain for this matter. They were duly cross-examined by the defendant’s lawyer by means of a qualified translator. Unfortunately for the defendants, we had a two-hour meeting with our clients where we went through the probable questions La Reserva de Marbella legal defence team would throw at them and prepared the answers carefully.
- Original La Reserva Ruling in Spanish (PDF 2,500 Kb)