The ruling seemed a logical consequence of a blatant contractual default.
Hercesa Inmobiliaria S.A. has lost a case brought against clients of this firm that intended to force them to complete the purchase of an off-plan property on a property development that was just that, a property development.
Never mind that Hercesa failed to build promised additional facilities, as noted on expensive promotional literature: 3 Golf Courses (2 of which were 18-hole facilities), football grounds, Club House, horse riding premises, restaurants and, if you were still skeptical, a luxury (could it be otherwise?) 6-star hotel boasting business center, spa, gym equipped with
hydrotherapy and several pools.
The Court deemed the intervention of the gone estate agency Andalucian Dream Homes ex-sales rep “crucial”, who swore that selling these units with those brochures was a “piece of cake”.
The Judge addtionally states that, on reviewing a photographic report invoked by the defendants’ counsel (we), the development is far from being in perfect conditions, as a consequence of which article 8 of the Consumers and Users Protection Act is fully applicable.
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?