Court tells La Reserva de Marbella that Consumers are Sacred and Shady Licenses of Occupancy are not Good Enough

May 5th, 2012

Court of First Instance number 12 of Malaga has ruled that the discussion on whether a licence of occupancy (licencia de primera ocupación) obtained by administrative silence is valid or not, should not affect bona fide consumers (any consumer unless otherwise proven).

In recent ruling, the Judge has argued that a consumer that buys off-plan property should not be dragged into, and suffer, complex legal debates between a developer, La Reserva de Marbella, and an administrative body, the Marbella Town Hall, as well as the Andalusian Regional Government. The ruling also states that:

  • La Reserva de Marbella is still not fully compliant with the policies of the Marbella Development Plan (PGOU), and has serious infrastructure deficiencies.
  • Both regional (RD 515/1989) and national (LOE 38/1999) laws stipulate that a consumer is entitled to receive a fully legal licence of occupancy, free from litigation.
  • It is not possible to invoke administrative silence, by the mere passing of time, where it demonstrably contravenes planning laws and regulations. The Judge presses on by arguing that administrative silence is to be upheld only if it does not go against both national or EU laws, noting that Spanish laws specify that administrative silence cannot be used to validate situations of illegality.
  • 4 years and 10 months from when the property should have been delivered, la Reserva is still unable to offer an unconditional licence of occupancy.
  • Completion date needs to be interpreted as a fixed date, and not a mere approximation.
  • An unproved strike somewhere down the construction process is not a valid excuse for a 4-year delay in getting a valid licence of occupancy and thus, being able to complete.

Conversely, the Malaga Administrative Courts have ruled on the admissibility of some of these licences and that La Reserva is entitled to them as these were granted pursuant to applicable laws.

The question that remains is: will these Judges ever get together for a pint or two and straighten out -legal- disagreements?

7 thoughts on “Court tells La Reserva de Marbella that Consumers are Sacred and Shady Licenses of Occupancy are not Good Enough

  1. Elaine Wilkes

    as one of the purchasers of an apartment on La Reserva De Marbella which turned out to be illegal, we have been through countless emotions with the process. When we found out that we were on the PGOU we celebrated thinking the officiial paper was on it’s way, but we were wrong. In your opinion is it looking good for us and when on earth will we obtain the LFO document for our apartment. This situation is causing a block for people selling as the banks will not give a mortgage.
    I would really appreciate if you could give me some solid facts as we keep hearing rumours. Is some of the delay because Pennaroya is in dispute with the Council about land as compansation?

    Thank you very much
    Elaine Wilkes.

  2. antonio Post author

    Elaine, solid facts are what owners need and are not getting. On the contrary, what the developer for La Reserva is trying to achieve is make people think that Court cases against them are being lost, which is clearly untrue, to dissuade other from taking a more hostile approach.

    More to the point, we must add that the current state of the negotiations between Penarroya and the Town Hall, with reference to compensation, is a mystery.

    The best option to get an update is to enquire directly with the Town Hall. You can also ask Diego Echavarría (, who owns in La Reserva and is well informed about the trials and tribulations of property owners there.

  3. Debbie Bell

    Is there any way someone can help us get our deposit back for the penthouse we thought we purchased back in 2002, its £70,000 we handed over and when we were about to complete 2 years later we were told there was no building licience, can i get my money back? if so can someone help me, we cant get a striaght answer from anyone in Spain.

  4. antonio Post author

    Dear Debbie,

    If you are able to provide me with more information on the specifics of the case, we can provide you with an answer on the merits of the case, the most suitable way forward and the likely costs you will encounter.

  5. shereen

    The same thing has been happening to us – we paid 75 thousand euro and found out it was being built on illegal land. We are still waiting to get our money back from La Reserva – I understand that the case was won, Law Reserva appealed and then we won that – how long will it be until we get our deposit back?


  6. antonio Post author

    This is a problem regularly encountered when litigating for the return of money from a property developer: they have little or no -visible- cash and little or no equity on the properties. La Reserva de Marbella S.A. is however paying the community fees (or at least, some of them), presumably council taxes and from sources from within, are renting out unsold apartments to obtain an income stream.

    What is required here is a good private investigator rather than a good lawyer (you appear to have one such lawyer) because, without assets of value to pursue, the enforcement of a ruling can prove to be a very frustrating excercise.

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