This is an interesting ruling involving Los Lagos de Santa María S.L. and a client of our office who had been allegedly misrepresented in the sale of a property in respect of its position and views but, nonetheless, was granted the rights to a full refund, on appeal, on completely different grounds.
When we met our client he was about to take delivery of a ground floor apartment at Los Lagos de Santa María which he had specifically requested to have views over the pool for he has children and grandchildren. He was sold, this unit back in 2004 for just under €400K. The model of the development showed that apartment being right next to the pool and slightly elevated over it, and if you kneeled sideways (which I did) the views to the see were almost uninterrupted. In all fairness the apartments were well finished and in fact the project appeared to have won several awards, according to some websites.
What they did not say is which awards did the architect and/or the model designer win as the apartment which had intended to have unbeatable views to the pool was actually three meters below it and so what the gloomy terrace had were perfectly unrestricted views to a Great China wall only separated from the apartment by a passage way connecting the units below with the upper part of the development. The pool was there, yes, albeit three meters above and so my client would have needed a U-Boote collapsible periscope to keep his children from drowning the granny, or vice versa.
Jokes aside, we had a preliminary meeting with our client back in 2006 where he vented his anger and frustration and took it out on his previous lawyer (who really did nothing wrong, in my opinion, apart from not securing the bank guarantee), the developer Los Lagos and pretty much the whole of the Costa del Sol real estate agents. We analyzed the situation and offered him legal help, which he was initially reluctant to accept given what had happened. However, after a more lengthy discussion, he agreed that we initially wrote to the developer and further served a claim to obtain a refund.
In my eagerness to obtain critical evidence for our case I visited the sales office and found the model which clearly showed his unit having straight views over the pool. The developer must have suspected the true aim of my visit (possibly because I forgot to take my tie off) so on my next visit, with a digital camera this time, the model had gone, for good. This preventive maneuver by Los Lagos impeded me from proving that the client had actually bought on the basis of the aforementioned views but it has turned out, it was the luckiest thing that could have happened to my dear client for we dropped the case for misrepresentation and filed instead for a refund on the basis that the license of habitation had not been granted.
As we were expecting (as they had done before with others in the same situation), a Court of First Instance of Marbella ruled against our client and against all logic went on to say that the license of habitation or occupancy was not a fundamental obligation of the contract and that, in any case, the lack of it was only attributable to the Town Hall, all the while classing the developer as “innocent” of any wrong doing. As one can imagine my clients dismay was now of biblical proportions and so our only choice was to win on appeal, at whatever cost (harassing and intimidating the appeal magistrate was not included). The judge´s ruling meant in short that our client had to complete on a property which was not only sunk three meters below the waterline and had a front tennis wall two meter high erected besides it, but it was also, hmm…illegal!!!
Happily for my client, the more clever judges of the Malaga superior High Court ruled that it was the developer’s obligation to deliver a fully finished property with the required authorizations and licenses for its intended use, in other words, a “street legal” property. Period. And so, the refund is on its way as well as legal costs!
As always, if you wish to have a copy of the ruling (clients´ names are erased for confidentially reasons) you can write to us. On the other hand, if you want to see the property don’t bother, it is so deeply situated you will not be able to see it!!