A Marbella judge ruling has been overturned by the Malaga High Court, once again proving that the interpretation of Spanish property law can vary from white to black in a matter of moments, depending on who is given to the opportunity to opine.
In this specific case the Marbella Judge stated that the lack of First Occupancy License for a property at Santa María Green Hills was not directly attributable to the developer (thereby signalling that it was not an essential part of the contract) and concluded that the buyers could not cancel the contract on those grounds, given that the property was finished and ready for occupation pending compliance with the Marbella General Plan. In this judgement the magistrate even warded costs to the developer.
The Malaga High Court´s conclusion is exactly…the opposite: that the First Occupancy License is an essential part of the contract and that irrespective of the legalization of the development under the new Marbella Plan the developer was at fault for not having delivered a fully legal property on time.
Interestingly my good friend Luis Gonzalez has just won a case against Aifos on behalf of a client who had bought in the development Calahonda Hills, though Ocean View Properties. This judgement is interesting because it forces the developer to return the deposit (40K Euros) plus interest but also the price increase of this same property should the client had wished to buy a similar property at the time of filing the case (what we would call loss suffered or gain prevented). Conversely the judge does not consider the claimant to have suffered any mental anguish over this plight and decides not to award compensatory moral damages.
The above shows that we are still far from knowing what will Spanish judges think and do when presented with similar cases and if there will ever be some form of consensus over this crucial matter. If only someone could get them together in a pub for a round of pints I´m sure we would not have these so-far-apart opinions!