I assume that as a reader of this blog you are aware of what is currently cooking in this part of Spain but if not there is a likely chance that you may have listened to some of the following news headlines in British, German, Dutch and Spanish TV and radio:
- The Junta has earmarked about 10,000 properties for demolition
- President Mugabe has defended the ongoing operation to bulldoze thousands of homes and businesses across Zimbabwe
- Britons who face seeing their Spanish homes demolished are to be visited by Foreign Office minister Chris Bryant
- Robert Mugabe’s Junta destroy thousands of properties in Harare
- Hundreds of British expats stage march in Malaga over plans to demolish ‘illegal’ holiday homes
Hopefully you have spotted -minor- differences between the above news headlines: the even-numbered ones refer to an African third world country governed by a viciously corrupt megalomaniac and the rest to the second tourist destination in the world. On the other hand though there is a striking similarity between both Juntas: presumably they’ll use identical diggers and demolition techniques to smash the bricks and mortar of hundreds or, if the property-destroyer Andalusian Junta plans go ahead, thousands of houses.
Fortunately we do not live in Zimbabwe and fortunately as well Spain is now part of the EU because anyone caught out in the Spanish illegal property scandal, in particular in this part of Spain (Andalusia) is going to have necessarily (and thankfully) to bypass, within the statutory procedures, Spanish laws and tribunals because the Spanish Supreme Court, the ultimate ordinary judicial instance, is reiterative in its stance of considering that there are no bona fide buyers (good faith buyers) of properties built on illegal licenses or initially legal but rendered illegal through a subsequent Court case.
The Supreme Court has settled a long standing difference of opinion between Civil Courts and Administrative Courts (in favour of the latter), which considered that bona fide buyers could not avoid the application of legal limitations concerning a property, including the issue of the validity of a building license, and thus any consequence arising from the fact of it being declared void, namely demolition. Conversely, the Civil Courts were more prone to uphold the principle of protection dispensed by the land registry rules to buyers who had trusted this system to acquire property.
This is explained fairly clearly by the Supreme Court in several rulings, establishing that property purchasers automatically take over the position of the previous buyer in respect of urban limitations, and, particularly, building licenses, irrespective of whether these were registered or not. In the view of a large part of the learnt Spanish population, and the majority of the foreign, this conclusion is unfair, as it does not differentiate between situations where the buyer could have known that the license was compromised and those where there was no indication at all that this was the case.
It will certainly sound as a precipitous opinion, but if I were sitting at the European Court of Justice, I would find myself very comfortable ruling against the Andalusian Government on the following grounds:
- Town Halls in Spain have a legal entitlement to issue build licenses conferred upon by the Spanish Constitution. This statutory prerogative is relied on by citizens when engaging in real estate transactions and should not be open to revocation by higher instances.
- Where Town Hall actions were blatantly illegal, the Junta should have acted efficiently imposing measure to impede developers from finalizing the works and also selling these properties.
- By accepting either Transfer Tax (7%) or Stamp Duty (1%) on ALL transactions on properties which were later rendered illegal.
- By creating an appearance of legality where everyone made the “imperfect” transaction good by charging build license tax, Notary and Land registry fees, Transfers Taxes, Mortgage arrangement costs, property valuation fees (in Spain valuations advise on the legal validity of a transaction on behalf of banks).
If I were the judge I’d pull a fantastic Common Law principle, known as the Doctrine of Estoppel, which says the following:
A person is precluded from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative officers, or by his own deed, acts, or representations, either express or implied.
This principle, properly applied by the European Court of Justice, should quash any Court demolition order and send the very clear message to the Andalusian Government that in Europe it is not acceptable to throw the lives of bona fide property purchasers into abject misery on the pretext of protection of public interest. Quite like Mugabe in Zimbabwe!