Antonio Flores’ Blog

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!

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

CajaSur, through it’s affiliate Prienesur, has decided not to grant the prize to the winner of the Arenal Golf apartment lottery. The winners, a British couple currently living in Antequera, have decided to hire lawyers to sue the company for refusing to honour the lottery draw result.

The draw was envisaged between Andalucian Dream Homes (ADH) and Prienesur among property purchasers and was signed in the presence of a Marbella notary public. Months after the draw, the winners tried to force ADH and Prienesur to deliver the apartment but was told that talks to agree on the procedure were under way and consequently had to wait.

Three years later, talks seem to still be underway as nothing has moved forward. ADH owners have affirmed, on many occasions, that they will pay Prienesur 50% of the value of the apartment as soon as the developer transfers ownership to the legitimate winners. Prienesur, on the contrary, remain suspiciously silent.

After being instructed by the buyers to enforce the lottery draw result, we decided to telephone Mr. Dugo, manager in charge of developments, to seek his opinion. His answer was plain but shocking: “this matter is not among my priorities at this time but will look into it”.

From a legal viewpoint it is clear that both companies are liable to deliver the prize but only Prienesur actually owns it and so a legal suit will have to be directed against them, without prejudicing their right of recourse against ADH (who in spite of being under administration, apparently still wish to comply with their part of the deal).

Antonio Flores Litigation, Property Andalucian Dream Homes, Arenal Golf, Prienesur, spanish developer, spanish developers