Antonio Flores’ Blog

In Spanish, ‘La Verdad’ means ‘The Truth’. But it is also the name of a local newspaper in the Murcia region that interviewed, back in 2006, a young and confident looking José Luis Pérez Carrión, Marketing Manager for Calidona. In this interview he extolled the virtues of the Corvera Golf  and Country Club grand project and its impressive facilities, including the PGA Olazabal-designed Golf Course (Ryder´s Cup contestant) and a 5 star De Vere-run hotel, with Spa and so many more luxuries you would expect from a hotel of this stature. Quoting Perez Carrión:

“We offer a different life-style, close to nature and the beach with a view to practice sports within an unbeatable environment and with all the facilities that the client may need. Also, owing to an agreement between the prestigious hotel chain De Vere, specialists in golf accommodation, we will be able to offer the services of a luxury hotel and a Spa.”

It´s February 2010 and la verdad is that there is no hotel, just as much as there is no equestrian centre, sports facilities, swimming pools, tennis club, private gym, commercial centre and a number of other amenities that were the primary reason for a couple of hundred people to buy in this development.

We took an interest in this case after being contacted by a few persons who had bought in Corvera Golf and Country Club, and after agreeing to take up their cases, a lawyer of the firm and a sort of specialist forensic valuer went over to draw up a report on the resort and it’s (lacking) facilities, and indeed it appears that many of them never left Corvera architect’s drawing boards, and are therefore just that, “un sueño” (a dream), as it reads on the bottom left part of the original promotional plan embedded in this post.

This is conclusive that a degree of contractual default has taken place, which will entitle buyers to file for cancellation of the contracts on the basis of misrepresentation. It is then up to the lawyers to argue the case successfully, with as much ammunition as possible (contracts, brochures, articles, witnesses, including Olazabal if required), and propel it to a successful conclusion for our clients, judge permitting.

In a similar claim we filed against Manilva Costa and Ocean View Properties, the judge of First Instance in Estepona granted contractual rescission as he found that the developer “misrepresented and misled buyers by promising, through marketing literature, facilities such as top restaurants, shops, a health and leisure club, tennis courts, Turkish baths, sauna, Jacuzzi, fully equipped gymnasium, heated pool and kindergarten service, and it is clear that none of those have been built”. He then added that “from the documents submitted to this Court, it has been established beyond doubt that the publicizing of these facilities in brochures was a fundamental element in the buyer’s decision to buy, as collectively they had induced him to proceed with the purchase of a property which was located in a relatively isolated development and distant from similar facilities.”

With respect to buyers in Corvera Golf and Country Club Phase IV, the above can be irrelevant because their properties have not even been built and therefore contractual default will come from delayed completion. The rest of phases seem to have been built more or less on time, that is, within 18 months from the date of issue of planning permission (such is the delivery date on the contract) so we are reluctant to base the case on this argument.

As with many other Court cases, we will play the devil’s advocate so as to test the quality of our legal arguments and identify weaknesses in its structure and content since Corvera will fight this case to the end. But still, the De Vere 5 star hotel is just not there!

Our case is due to be filed within days. We will keep anyone with an interest in this development posted through this blog.

– Update March, 03 – 2010: Photos taken last week of the unfinished facilities have been added below:

aflores Litigation, Property Calidona, Corvera Golf and Country Club, litigation against spanish developers, Manilva Costa, Manilva Costa SA, Ocean View Properties

My previous post on the matter (Part 1) would have not been complete if no mention was made to contracts with developers and bank guarantees so below are a list of classic legal fairy tales on the subject.

On Courts/Litigation

1. Court costs are very high in Spain. Not at all, there are no Court costs because court proceedings are free (it’s called “justicia gratuita”) except if you decide to go the Supreme Court (these magistrates are a bunch of snobs and so may request you pay a deposit). It is the lawyers who will charge you the money together with the procurators (who inexplicably have yet not been eliminated as they are totally superfluous and have the habit of falling asleep in Court hearings). But if you have a good case and you win it is likely that legal fees will be awarded on the losing party and therefore you will be reimbursed. Obviously the contrary may happen if you lose in which case fees can double.
2. You will lose if you litigate against a Spaniard or a Spanish company because the system protects them: TOTAL RUBBISH. Yes, I can see the black continent from my terrace but this does not mean that we live in a banana African republic (not yet though). Never have I heard, been told or read any complaints from anyone to the effect of denouncing the judiciary system for judging on patriotic grounds.
3. Never litigate in Spain, it will take 10 years: yes, if you decide to go all the way to the Supreme Court. But the average for a Court of First Instance ruling is 14 months and we all know that time flies…

On Contracts with Developers and Bank Guarantees

Lately, a very popular topic on legal-gossip websites:

1. I have a contract with a developer, don’t want to proceed and I have been advised by someone with a zillion posts on an expat website forum that a particular lawyer will succeed because he/she is an expert in Consumer Protection Law: run away, would not touch it with a barge pole! The reason is simple: no decent lawyer will want this type publicity because it is immoral. Lawyers should never give sweeping legal advice on a particular subject without reading a contract and analyzing all elements. Those who fail to follow this principle are regarded as ambulance chasers.
2. I have a bank guarantee/insurance policy and therefore can just cash it and walk away: NO, this would defeat the purpose of the bank guarantee which is to protect the investor from a failed property investment and not serve as a getaway facility. You can however cancel and try to execute, directly or through the Courts, where notoriously a delay has taken place. Results are varied, from banks/insurers paying happily to refusing point bank, with similar results when going to Courts (recently Banesto has accepted to pay 80% of 11 deposits they were guaranteeing in a Court case we filed against them and their client, Promaga).
3. Statutory Force majeure and Acts of God are not applicable in Spanish law: WHY NOT? Article 1.105 of the Spanish Civil Code, in force since the 19th century, says the contrary. Developers can excuse themselves for not completing on time if they can prove that the delay was caused by events catalogued as any of the two.
4. The developer has delivered my property one month late and therefore they are at default and have to return my money, by law: NO judge will accept this unless specifically written into the contract and no developer is stupid enough to have done that. The exact amount of days or months of delay will depend on the wording of the contract, the reasons for the delay, the judge ruling the case (some say that 3 months is enough and others say that 9 months does not defeat the economical purpose of the contract and so it is insufficient).
5. I bought a new property, I could not complete, the developer delivered on time and summoned me for completion, after which they cancelled. I have lost my deposit and cannot do anything. Not always. It is quite possible that the contract was a one-sided agreement because it was entered with the developer at a time when they had (limited) precious properties for seemingly endless numbers of keen property investors (i.e., property boom) and so it was a case of take-it-or-leave sort of agreement. The consequence of this is that clauses which can be considered as unequal, could not be negotiated at the time of buying, are not reciprocal and are not proportioned are null and void. This includes the clause where the buyer loses the deposit if he does not complete if the developer does not include one where he will refund twice the deposit if he too fails.
6. I have bought a property from a developer and therefore I am a consumer, which gives me the right to cancel the contract if I wish: No, careful! Being a consumer does not mean that you have every right, if you wish to pull out, to cancel your contract and demand your monies back. There are times where developers have fully complied with the contract and there is little hope in successfully winning a case for contractual default, in fact they are open to enforce completion of the transaction, both in Spain and in your own country if they deem it appropriate.
7. I wish to cancel my off-plan contract and I’ve been told I have a “Solid Case”. You may well have one, a very strong one in fact, in which case cashing that bank guarantee is a plausible option and alternatively a Court case. But once again be cautious: there are some pseudo-legal website forums where you are told pretty much that no matter what you have done and/or the developer has done you always always have a ’strong case’. To put a comparison it’s like a doctor telling a moribund terminally ill patient that no matter how serious the ailing is they will make a quick recovery (I could not find a less graphic comparison but it is how I see it). Examples of this are for example fallacies such as the one that says if you don’t get a mortgage you can pull out in any case, or that one whereby if the developer is late by 1 month you can pull out.

This list is by far comprehensive so if you come across anymore do let us know!

aflores Litigation, Property ambulance chasers, legal gossip, litigation against spanish developers, spanish courts

Viewers of this post may initially be lost with the title of it, but will soon know what I am writing about. As we say in Spain, there is a lawyer and a doctor in each family, even if no member of it has finished high-school, given the abundance of advice you tend to get from some family members when you have abdominal pain or you are about to sign a rental agreement with a tenant.

In the Costa del Sol, and definitely in the rest of Costas, many foreign individuals seek advice for legal issues, but they use neither traditional legal advisers nor less formal legal sources. Instead, in the majority of cases (reportedly three quarters!) they obtain advice from family and friends, and from a broad range of non-legal professionals, including professionals working in many other fields who are known to the information seeker. They also have the habit of roaming through expat forums with the hope of getting the answer they wish to listen, and which rarely conforms to reality (unfortunately). Thus, there appears to be an informal network of non-legal practitioners who are routinely consulted by people with legal problems and who have created a parallel case law which is simply wrong.

You will know what I am writing about when you read some the beliefs spread in our Costas during years of pseudo-legalese innuendo, hearsay and gossip in bars and pubs, “chiringuitos”, Christmas Dos and other socializing events appropriately lubricated with abundant booze. Lets start with a few:

Spanish Wills & Inheritance

1. Die without a will and the Spanish Government will snap up everything: this is a classic I must have clarified at least 999 times. NO, Spanish law does not say this, it says that if you die without a will then you die intestate, in which case your personal national law applies, and only if no inheritors turn up will the Spanish Government ultimately claim ownership (someone has to!). As an example, according to Hubert Bocken and Walter de Bondt (Introduction to Belgian Law) most Belgian married people with children die intestate and therefore Belgian rules will apply, with usufruct rights passing to the heirs. This will happen too to any Spanish property or asset owned by a Belgian national because his/her law says so.
2. My English will is not valid in Spain: it is perfectly valid but it needs to be translated, legalized and the authorship confirmed by the Spanish Courts. Of course, it better include Spanish or worldwide assets because otherwise it has not relevance. The best option in this case is to obtain grant of probate by the Courts that can then be legalized and translated for its use in Spain.

Spanish Rental agreements

1. My tenant is not paying, I will change the locks: FORGET IT, you can end up in the gallows for this because it is trespassing.
2. My tenant is not paying; I will cancel the electricity and water supplies: CAREFUL, doing this is punishable under the Spanish Criminal Code as it is considered to be coercion and/or harassment.
3. My landlord has not made some repairs I have asked him to do so I am deducting the repair costs from the rent. NO, if you do this you can get evicted. Rent has to be paid every month, religiously, and if you want to ask him to carry out remedial work on the property you have to notify him formally. They are 2 separate issues and cannot be mixed up because the law has established this.
4. I have an 11 month contract which I am told is short term and so I will be able to kick the tenant out on expiration of the term: FALSE, all residential rental contracts can be challenged and extended up to 5 years, optional for the tenant and mandatory for the owner. A registration certificate with the local Town Hall will suffice to invoke this.
5. My contract is in German so it is not valid: A very common fallacy. Any document which can be translated by a registered or certified translator or interpreter is valid in a Court of law.

More to come on my next Post!

aflores Inheritance, Property legal gossip, rental contract spain, rental contracts in spain, rental spain, spain will, spanish tenancy agreement, Spanish Wills, will in spain

Some 12 months ago we were dumped by a client who was buying an off-plan unit in the development known as Bahía de las Rocas. It was no surprise that the newly acting “scavenging” lawyer, was operating from the expat-legal-gossip omnibus portal known as Eye On Spain (www.eyeonspain.com), wherefrom she had lured our client and probably told her how deep was our tie with the introducing agent, how horrible the developer was and how biased we were as a firm.

Our advice had been consistent throughout the transaction, advising the client that we could see no grounds for pulling out. She had tried to convince us in turn that, according to what the agents had told her, the property should have had a certain orientation, with views to a certain place. We spoke to the developer to verify this but could not find indications of any contractual infringement from where to successfully launch a claim.

Some months after we received the standard fax from the above lawyer asking for all the documents, and soon after the developer’s lawyer summoned us to Court to give witness statement. Out of curiosity we picked the phone up and called the developer, to find out that they had been sued not for the property having the wrong views but for, and here we go… delayed completion!!

But something was not right in all of this because, according to some simple calculations made with our desktop Casio calculator, the delay was of…cero days!!! Our curiosity went even further and, when reading the claimant’s petition, we noticed that it looked like a copy and paste piece of work because it made no sense whatsoever. How could any lawyer in his right mind consider NO delay as a fundamental breach of contract? What advice did this lawyer give to the client when offering her legal services? How could this lawyer, when cross examining us, ask us questions which answers directly exposed the entire satisfaction of the client with the property? But the funniest thing of all was that our client admitted in Court that she had been at all times informed and updated by us of the course of the works, without her manifesting any dissent.

The outcome was as predictable as clockwork: The judge ruled in favour of the developer, and sentenced the claimant to pay the legal bill. (An ‘anonymized’ copy of the ruling is available upon request.)

The legal conclusions of this botched attempt to trick the judges can be summarized as follows:

1. Contractual extensions on property transactions are legal.
2. Force majeure and Acts of God grounds for opposition are valid under Spanish law in case of non-performance.
3. Lawyers should do a minimum pre-hearing preparation before entering the Court room if only to avoid, when cross-examining the previous lawyers, look very silly.
4. Lawyers should tell their clients that they can, and sometimes should, lie in Court when being cross-examined, because the other party will most certainly lie too! (there is no such thing as perjury in Spain).
5. Generally, lawyers should make their clients sign a disclaimer when persuading a client to start a Court case with no options whatsoever of winning a case.

From an economic point of view losing this case will mean a legal bill of between €20K, and nothing achieved. Too bad for reckless litigators!

aflores Litigation, Property ambulance chasers, Bahía de las Rocas, litigation against spanish developers

Anyone who watched Piers Morgan Marbella documentary, shown on ITV, will remember him saying that the city’s Golf Valley has more golf courses per head than anywhere else in the world. Anyone who watched the programme and lives or has an apartment at Arenal Golf, in Benalmadena, will wriggle with anger when reminded that they should have been an element of that statistic if Arenal 2000 had fulfilled the promise of building an 18 hole golf course.

From a legal point of view this is textbook contractual misrepresentation and any eager litigator would enjoy a hearing against Arenal 2000 developer lawyers (now Prienesur, or CajaSur) when comparing the undertakings made in the promotional literature with the photos taken by our surveyor:

“ The privileged owners of an apartment in Arenal Golf will benefit from both adult and children swimming pools, a fully-fitted gymnasium, two paddle/ tennis courts and a golf share in the exclusive ‘Arenal Golf’ 18 hole course that Arenal 2000 is building specially for the promotion”.

Also,

“Within the development there will be extensive landscaped garden areas with palm trees, rockeries and tropical plants.”

This is what the developer promissed purchasers: 

Artist's Impression shown on Arenal Golf Promotional Brochures

This is what the ‘golf course’ looks like today:

View of the 'Golf Course' at Arenal Golf on December 2009

It appears that already some action is being taken by local residents, one of which has managed to register the domain name www.arenalgolf.com, and has created an Arenal Golf forum and blog. However, it is not clear if any legal action is being taken against Prienesur/CajaSur and the Spanish Church, the ultimate owners of this mess.

Legally speaking, it may now be somewhat late to cancel the purchase and undo title deeds, etc., but for private purchase contract holders who are being asked to complete by Prienesur they should be able to oppose them quite successfully on the above mentioned grounds, in my opinion. However, I would loath to guarantee that this would be the case with every single judge. And the reason is that Prienesur could argue that this is not a fundamental breach of contract but a breach of an ancillary obligation which in no way impedes the economical objective or legitimate expectations of the buyer, who has received the promised unit (the basis for obtaining a favourable ruling).

What our firm is doing with the clients we represent is asking them to bring as much possible evidence of their craze for the sport, so as to prove that it was this and not the apartment in question that made up their minds to part with the money. This evidence could be in the form of golf membership cards back home, invoices proving they are avid golf equipment and paraphernalia buyers, pictures of them hitting a few balls with Tiger Woods and even divorce legal suits on grounds of desertion or abandonment due to excessive morning golf + evening pub crawling. After all, litigation is about law as much as it is about proving a point!

aflores Litigation, Property Arenal 2000, Arenal 2000 Benalmandena, Arenal Benalmadena, Arenal Golf, Arenal Sur 21, CajaSur, Prienesur

State in which our client's apartment was left by a defaulting tenant

Great expectation has been raised now that the new law on rental eviction procedure and a few other bits and pieces has been approved. Because what this new law intends to do is to help boot a defaulting tenant in a matter of days, or so it seems when you read it (it now talks about “days” as opposed to “months”). The reality however is that for all its good intents and purposes it is quite possible that landlords will still have to resort to switching off water and electricity supplies, calling in a couple of Liverpool heavies or hiring a failed guitarist to make nights unbearable by playing “Stairway to Heaven” outside the apartment for hours on end. The reason is that, even if the new law is clearly envisaged to speed up kicking out tenants, the stark reality is that Courts in Spain are so slow that it is difficult to see how switching procedures (to a quicker one) and reducing significantly the time to comply with an eviction notice (fifteen days) can succeed.

According to a report released by a Law Firm in Barcelona (Alboreca Abogados de Vivienda), after reading more than 2,000 Court rulings and interviewing a fraction of those poor landlords, the time to finally get a sentence to “launch” (as Spanish law calls it) your hated tenant averages six months and fourteen days. The problem is that you then need to execute this ruling so that eventually the police can effective throw the bastard out and this will take another three months and sixteen days so you are looking at an average of ten months in all…but then again it takes another eight months and five days to make up you mind to go to Court (getting in touch with lawyers, arranging meetings, paying them extortionate fees…) so after you add up it will almost take two years from when the monthly rental fails to show up on your bank account to when you can visit your “investment” property again. Not to mention of course that you should not expect a bottle of champagne with a with thanks note in the living room but quite the contrary: stolen fixture and fittings, destroyed furniture, missing kitchen utensils, dog crap all over the place and to get even more scatological (and not joking here), walls and curtains smothered in human fecal matter. So who the hell would want to rent with this prospect??

According to this report, 50,5% of defaulters are males and 35,7% females, the rest being companies. By nationalities, 74 out of 100 are Spaniards and the rest Brits, Germans and Romanians, by this order.

This same law firm has privately compiled a database with 6,000 Court rulings where “non-complying” tenants are named (unfortunately not publicly shamed) and so for a modest amount of money (7.50 Euros) one can know if we are dealing with the right guy. Obviously not all bad payers are registered, but if they happened to be registered and to avoid 7.50 Euros we incurred in thousands in losses, one would not be happy at all. This database should be also by checked by a lanlord who has a defaulting tenant, for a tenant which has had two court cases for the same reason can be prosecuted for criminal swindle, as opposed to a regular eviction case.

Fortunately enough, the law of averages says that finding a defaulting tenant is not always going to happen, and so it is quite possible that you will be able to have a beer or two with your tenant at some point during your commercial relationship with him/her because he/she has decided to do what all landlords are praying for, i.e., just pay the rent.

With the new law hopefully the almost twelve months from filing to firing will be reduced to, say, three or four months, we can only hope!

aflores Litigation, Property eviction in Spain, landlords, non paying tenants, Spanish eviction, spanish tenancy, spanish tenancy agreement, tenants

A recent report by the Association of Tax Inspectors in respect of rental income highlighted what we all knew: that very few landlords do actually declare any rental income. According to the inspectors, the biggest tax evaders are in Andalucía, where it is believed that only 26% of property owners declare this income to the Spanish Inland Revenue (of which, ostensibly, foreigners amount to…0 percent!). In total, €2,450 million of lost tax revenue.

It is not clear however how have they reached these conclusions but one thing is clear to me: I don’t know of anyone on the Costa del Sol (mostly foreigners) who has ever asked where should they pay their taxes.

The reasons, below:

1. Unwillingness to pay taxes (obvious).
2. Untraceability of the transaction as most of the deals are done in cash or are paid into non-resident bank accounts, of little interest to the Spanish Inland Revenue. Also, the sums are small and periodical so banks are not obliged to report back to the Central Bank of Spain.
3. Tenants are not obliged to withhold the tax and lodge with the Spanish Inland Revenue if the tenancy agreement is not of a commercial nature (Conversely, where a real estate agency is involved in the payments they will have to deduct the 24%).
4. Ignorance as to how to about paying the tax in the case of a non-resident.
5. In the event of willingness to pay, many non-resident owners are put off by the tax (24%), with no possibility to deduct costs (maintenance, etc.)
6. Lack of fear of the Spanish Inland Revenue.

But this blissful scenario is likely to change because the Spanish Inland Revenue is on a mission to trap tax dues with a clever and original proposal. They will force utility companies (water, electricity, gas) to supply details of consumption to identify the properties which are apparently empty but house a tenant in them.

This seems once again a futile attempt to convince owners that they need to pay taxes and judging by how it is released it looks more of a newsletter or circular carrying a declaration of intention, no more.

aflores Property, Taxes rental income in Spain, Spanish Inland Revenue, spanish property taxes, Spanish Tax Office, Spanish Taxman

The development known as El Patio de Doña Julia, built by developer Evemarina is poised to become a real mess if our fears are confirmed. The chronology of events leading to Evemarina´s insolvency is known to those involved, except for the fact that the developer may have sold the whole development on the 21st of August 2009 to a company associated with Caja Rural, the savings bank financing the development.

We are naturally very worried, as we represent a large number of clients in El Patio de Doña Julia, most of whom already expressed their desire to pull out of the transaction due to a number of reasons, namely late delivery, faulty construction and presumably a lesser value than that reflected in the contract. So after we sent notice of cancellation (requesting full refund), and we received a letter back from the developer rejecting our demands and intimating that they would pursue our clients, it may soon transpire that the whole development has been handed back to the bank through a sale to a company called “Gestion de Inmuebles Virgen de los Peligros” (which in Spanish means nothing less than Virgin Danger Property Managers), without notifying legitimate purchasers with a valid contract.

Unfortunately Evemarina’s insurer ACC Zurich Insurance also rejected our attempts to cash the insurance policies on grounds that completion –with habitation license- had taken place in a timely manner, that is, before the final date to deliver the units agreed to in the contract. This date has attracted much controversy as it established an discretionary extension that has allowed Evemarina to finalize the works, in our opinion, without breaking the contract (thus preventing our clients to invoke this getaway clause so as to abandon a project for which they no longer had their hearts on).

If the above is confirmed, we can be faced with a scandal of significant proportions as not only Evemarina’s directors, but also the savings bank property management company, could be deemed to have engaged in a fraudulent scheme by selling the same properties twice without refunding the advance payments to the first buyers (in the case of Evemarina), and buying the units knowing that these had already been previously sold on a private purchase contract (in the case of Gestion de Inmuebles Virgen de los Peligros, AKA Caja Rural). This, may I add, will in most countries be construed as a criminal offense punishable with prison terms.

We will post regular updates on this blog post as we obtain fresh information.

aflores Litigation, Property ACC Seguros, El Patio de Doña Julia, Evemarina, Gestion de Inmuebles Virgen de los Peligros, Zurich Insurance

Sunken Apartment at los Lagos de Santa Maria

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!!

aflores Litigation, Property Los Lagos de Santa María, Los Lagos de Santa María S.L

Anyone who has dealt with Manilva Costa S.A. (developer of Manilva Gardens) will know what I am writing about. The elusiveness of this company in respect to their accountability for contracts Ocean View Properties signed, supposedly on Manilva Costa’s behalf, with mostly British buyers, has forced lawyers to be more creative and find ways to pursue the refund of their deposits for contractual default.

Mates, the developer’s lawyer, has been well instructed on how to deal with private purchase contract signatories to avoid being held responsible for non-delivery of the units on time. The story can be summarized in the following points:

1. Property buyers looking for investment opportunities on the Costa del Sol were approached by Ocean View Properties, or viceversa, with an offer or few developments owned by Manilva Costa S.A.
2. Once the buyers were convinced that the investments was sound they went on to transfer a fat deposit to OVP which would in turn send them two copies of the contracts, unsigned, for them to sign and send back. OVP rarely signed the contract although they did acknowledge the receipt of the deposit.
3. According to Manilva Costa the deposits where never sent to them and according to OVP they were sent (?). OVP, after gathering millions of pounds in deposits for property and a number of vicissitudes, including unconfirmed claims that the owner had died on an airplane crash in Brazil, went on to file bankruptcy.
4. Buyers stuck with private purchase contracts signed with Ocean View Properties looked to pursue Manilva Costa for the deposits but found an unsurpassable legal impediment: there were no contracts signed by Manilva Costa and neither acknowledgement of having received the deposits from OVP.
5. In one occasion we sent a legal notice to Manilva Costa S.A. with a request to confirmed having received the deposit of a client they wrote back positively, thus paving the way for a legal claim in Spain.
6. Manilva Costa Directors quickly realized that they had to stop this and instructed lawyers to deny having received any such deposits. Strangely enough Mates had the details of all buyers and offered them to complete on their properties for the initially agreed prices minus the deposits, even though the denied having received them. To this date Mates is eager to convince clients to close at the original price minus 30% of the purchase price (approximately the value of the deposits).

After meeting with several buyers stuck with this situation we proposed them to file a claim at the Bristol County Court against both Ocean View Properties and Manilva Costa and needless to say, neither of them appeared in Court to contest them. The case was heard and District Judge Britton acceded to the claimants petitions in full. With this Court ruling, which we legalized and translated to use in Spain, we filed for execution thereof in the Court in Seville and requested that a legal charge was taken out against Manilva Costa to ensure that enough funds were available in the likely event the Seville judge ruled in our favour.

We now expect other claimants to follow suit and not allow Manilva Costa to get away with using carefully planned obfuscation to deter their own bona fide clients from demanding justice to be served. After all, as said before, Europe is now a large country where nobody should be able to find legal shelter after deceiving consumers.

aflores Litigation, Property Gardens of Manilva, Gardens of Manilva Country Club, Manilva Costa, Manilva Costa SA, Manilva Gardens, Ocean View Properties, OVP