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?
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.
Following the case recently won by Lawbird lawyers on behalf of a British client against developer Peñarroya, another ruling with positive outcome involving the the same developer has been received in our offices. It is a second and final ruling at Málaga’s High Appeal Court, which has been passed on the 15th October 2009.
Our client had purchased in 2003 an off plan property from developer Peñarroya at well-known development La Reserva de Marbella, Elviria, Marbella East, Málaga Province. The developer had breached the Private Purchase Contract because of late delivery in handing over the property and not having attained from Marbella’s Town Hall what is known as a Licence of First Occupation.
Our client withdrew from the Private Purchase Contract and litigated for a full refund of her deposit. She won the First ruling on the 26th February 2008. This First ruling was appealed by the developer’s lawyers. She has now won a Second and Final ruling on her matter which overturns the developer’s appeal. The High Court has confirmed in its entirety the First ruling whereby she was entitled to a full refund of her deposits (over 80,000€) plus legal interests accrued since early 2005. The High Court has additionally awarded her the legal fees and expenses arising from this appeal which will be paid for by the defendant, developer Peñarroya .
Lawbird lawyers have won a First ruling against developer Peñarroya on the 13th October 2009 acting on behalf of a British couple.
The clients had purchased an off plan property from developer Peñarroya at well-known development La Reserva de Marbella, Elviria, Marbella East, Málaga Province. The developer had breached the Private Purchase Contract because of late delivery in handing over the property and lacking the mandatory Licence of First Occupation.
Our clients withdrew and litigated for a refund with a favourable outcome. The clients were however countersued by Peñarroya for non-completion. This ruling overturns the developer’s lawsuit in favour of our clients and confirms the prior ruling in our client’s favour. The court sentenced the plaintiff, developer Peñarroya , to refund in full to our clients the legal costs arisen from this counter lawsuit.