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Minerva
02-18-2010, 01:03 AM
First of all: thank you very much for this Forum. I do hope that you will be able to help me with my dilemma as I have tried to resolve it amicably myself with little success. I'll try to explain this complicated scenario as clearly and concisely as I can.

In March 2009 I signed a contract for an 11 months rental for a two bedroomed property I love very much. I explained very clearly that I wanted a longer tenancy and so a clause was introduced guaranteeing a continued tenancy for a further 11 months. This was signed by both partoes. I paid the leasing agent (whom I have not seen from that day to this) half the agreed rent.
Two of the clauses were as follows:

That
there were no grievances against the property that would affect my rights as a tenant
the landlords were responsible for paymenmt of the community fees
the rent would be paid directly into the landlord's bank account

Within a month I was approached by the landlords to pay the rental in cash as it was "more convenient". Until October of last year (i.e. 7 months into my tenancy) I had received no receipts. I approached one of the landlords with a list of paynents for both rent and utilities and this was then signed.
What has been more distressing was that I found out in October that the landlords owed almost 5000 in community fees which remained unpaid. I as told by both the Community and the landlords that court action had been sought by both. I was told though a notice pout under my door to apply for a new security code, which I did not do. I was then told by the Community's lawyer that my friends would not be allowed access to the urbanisation (which is quite large) and that I would not be able to enjoy the facilities of the urbanisation (spa, pool, golf access). At that point I contacted the owners and was told that they were doing everything they could to rectify the situation. They asked for my patience. I have been very patient. My patience has now worn thin!
Now four months on they are insisting that I must sign another contract under the same terms/rental charges as before.
I have done everything I can to secure my continued peace and quiet here but to no avail. I even approached the lawyers for the community and suggested that I deduct the ongoing fees from my rent and pay them directly. Their only suggestion was that I pay all the disputed amount directly or my rights of access would continue to be restricted.
Initially, at the beginning of this month I deposited the full rental into a new bank account and informed the owner that I would be willing to pay the rent and sign a new contract once he had proved to me that the encumbrances to my tenancy had been lifted. I shortly after changed my mind as I was told this had affected their ability to pay their mortgage and deposited the rent, minus 200 euros, into the landlord's bank account since I felt that as they had defaulted on the initial conditions of the "contract" this was my only option to try to defend my position. Incidentally, properties similar to mine are now renting at 150 - 200 euros less than a year ago, even if the rights of access are free and clear. This to me is not important: I am prepared to pay the agreed rent, but I want my rights of enjoyment restored as is my right.
I have now been informed by the landlord's lawyer that they will be taking legal action against me to reclaim the 200 euros that they feel is owing.
I have tried to resolve this problem even offering to buy some of the furniture to help them to repay the debt but this too has been ignored.
I love my home. The idea of moving will be expensive and stressful. My health has suffered as a result of this ongoing situation. I have stated very clearly at the outset that I was expecting a long unmolested tenancy and that I am more than willing to sign a lease for the agreed amount provided the landlords can legally state that the stated encumbrances against my full rights as tenant have been dealt with with the community, and removed.
I cannot afford to, nor do I wish to, get engaged in a long court battle. I have been an exemplary tenant who does not wish to move. I even stated initially that guaranteed a long tenancy I might be willing to buy the apartment. As it is I truly don't know what to do next?
Any suggestions would be VERY appreciated.
Sincerely Yours,
A Good Tenant

Unregistered
02-18-2010, 02:02 AM
Re: the above. The property in question by the way, is on the Erasur development at Capanes del Golf.

Minerva
02-18-2010, 02:25 AM
Just one other short question:
If I move from my apartment because of pressure (see Unpaid Community Fees) can the landlord legally rent my apartment knowing that there are encumbances against the property, i.e. that he has not paid the community fees and is well aware that this presupposes grievances against the property? This is being used to force me out: that is to say that the landlord claims he can easily replace me as a tenant.
Thanks again.
"Minerva"

Lawbird Lawyer
02-18-2010, 02:33 PM
Dear Minerva,

You could have terminated the tenancy contract as you had just cause for it but you decided to hang on.

Moreover, you deducted 200€ to offset the restricted access to the communal facilities. This was a mistake and it's illegal. The landlord can effectively sue you for this. Another question would be if it's worthwhile.

Your landlord can let a property legally being in arrears with the community. Another matter is if there was clause within the contract foreseeing and safeguarding teh tenant against this event which is highly unlikely.

To avoid further problems you should pay your arraers and terminate the contract as you have a just cause and move elsewhere (even within the same development) to a cheaper and hassle free rental.

Tenants nowadays are king. Plenty to choose from.

Yours faithfully,
Raymundo LarraÃ*n Nesbitt

Minerva
02-18-2010, 03:36 PM
Thank you Raymundo for your quick response. You write:
"Another matter is if there was clause within the contract foreseeing and safeguarding teh tenant against this event which is highly unlikely." Do these two clauses not suffice?

That
there were no grievances against the property that would affect my rights as a tenant
the landlords were responsible for payment of the community fees

You are probably right. It is not ultimately worth the aggravation, but it is a great injustice that I, as the innocent party, have to suffer the expense and disruption of a move after I moved here initially in good faith, don't you think? It does seem to me that there are far more empty units available than there are tenants to fill them but perhaps I have been misinformed.
Anyway, thank you again.
Minerva

Lawbird Lawyer
02-18-2010, 04:48 PM
Dear Minerva,

You're welcome.

I understand your predicament and fully agree with you. That clause to which you are refrring to may be a translation from a Spanish clause which really referes to not being challenged in the pacific possession of the property. An no one is challenging you on the possession, only blocking your access to the communal facilities for non-payments -of the landlord- which is not the same. You may be construing the original Spanish clause wich is thought out for a compeltely different and unrelated meaning i.e. squatters

The lack of access can incidentally be challenged but again, being practical, I'm of the opinion that is not worth pursuing as it would be through the Spanish law courts. I would really have to examine your Community Bylaws to read what they rule on this point.

Being practical, I really believe it's not worth all the hassle (time and money) being there so many properties available to let at fantastic prices post credit crunch. Landlords are now desperate to let empty properties, might as well take advantage of the golden opportunity rather than fending off the Community and simulataneously challenging your Landlord which can end badly for you sitting before a Spanish judge for breach of contract. No matter how right you may be, that is not the point.

Besides, it's not up to you to pay the Community arrears unless worded and agreed into your Tenancy agreement; that's the landlord's duty as an owner.

You should read my latest article which has a similar point included:

Buying Property In Spain Part I. Buying Resale: Avoiding the Pitfalls (http://www.marbella-lawyers.com/articles/showArticle/tips-on-buying-a-property-in-spain) - 31st January 2010





6. Knowing Your Owner’s Rights

If you are buying in a Spanish Community of Owners (http://www.marbella-lawyers.com/articles/showArticle/spanish-comunidad-de-propietarios), Comunidad de Propietarios, it is advisable you request beforehand both the Community Statutes and the Internal Community Rules (the latter being optional, do not always exist) to avoid future problems with your neighbours. i.e. Internal Community Rules that ban tenants from using the community pool. This internal rule can be particularly troublesome for those landlords who bought with a view to let not to mention that it can be challenged.

Additionally, depending on which of Spain’s 17 regions the property you are buying is located in, besides being protected by the General Legal Consumer Embodiment which rules nationwide, you are also protected by specific Regional Consumer Laws. An example of the latter would be Decree 218/2005 which rules on Consumer’s Rights on buying and letting property exclusively for the region of AndalucÃ*a. These regional laws compliment national laws adding security and rights to consumers at large.



Regards,
Raymundo LarraÃ*n Nesbitt

Minerva
02-18-2010, 09:25 PM
Thank you again, Raymundo,
I can see your point and, aggravating as it may be, I can see I am going to have to rethink my position. All of this is causing me a lot of stress and lovely as my view might be it really isn't worth it in the long run.
This forum is a very unexpected gem in a sea of worthless advice in this "paradise" we call Marbella. If I ever need a lawyer, I'll know where to come.
Minerva

Lawbird Lawyer
02-19-2010, 10:23 AM
Thank you for your kind words Minerva.

Marbella has now become the safest place to buy or let property in Spain, whether off-plan or resale, after the pre-approval of its Master Urban Plan last month. Plenty of property to choose from with beautiful sea and mountain views.

Regards,
Raymundo LarraÃ*n Nesbitt

Unregistered
03-27-2010, 06:02 AM
Dear Raymundo,
Sorry to bother you again.
Fool that you probably think I am I am still trying to hold on to my home. The idea of moving 75 plants and 700 books does not appeal.
I am still being hasseled (sp?) by the community guards, but not always. They (bless them) recognise that the directive from the Community is illegal, but...I don't want to cause anyone to lose their job. I use the spa when the lights are on. I explain to my friends that the current arrangement is ridiculous, illegal, and not of my making. I meet them at the gate most of the time. Still, it's a bit too much to bear for 900 a month for a 2 bedroom apartment.
At the beginning of this month I wrote to the owners of the property with the attempt of coming to some kind of agreement over rent in view of the disruption to my tenancy. The original rent was 900. I was offering 700, but in view of their (landlord's stated) financial arrangements (and my desire to stay) am now offering 800. I think I am being more than fair in view that this is based on an unobstucted mountain view and little else (the apartments are nice but the finish is not so great and my absolute desire to avoid moving at all costs (I was initially promised a minimum of 2 years with the possibility of purchase thereafter) and little else. The cleaners are even leaving the corridor in front of my apartment without attention: honestly, as if I care? I have a broom. But how much for an obstructed view is too much? Especialy when there are 3 bedroom townhouses out there for 700? I know, you have told me: but you haven`'t seen my view!
You probably think I am a fool for hanging on, but there is a lot of difference between "rented property" and home. This is my home and I (did/do?) love it. I am not someone to give up easily and I think I have been more than fair.
I have just realised that I have ranted on without a question. Forgive me.
I guess it is this:
I am paying the rent. It is less than what we agreed on initially, but the circumstances have changed and the initial rental agreement is worthless. as the landlords have not paid the community as was guaranteed in the original "contract". What are the possibilities of him getting me out, and I realise that there is a long distance (discrepancy between the law and how you can interpret it: www.headstartlearningcentre.com)and how it will be observed given the present court backlpog.
How long do I get to be left in peace?
Tracy Saunders
www.pilgrimagetoheresy.com

Lawbird Lawyer
03-30-2010, 01:01 PM
Dear Tracy,

There is post from a landlord on this thread which bears the same problem as yours only from the opposite perspective.

I think you should check what they've written and my reply, who knows, it might be your landlord after all...

http://www.marbella-lawyers.com/forums/showthread.php?t=111&page=10#91

My reply on the above thread is applicable to your post above.

I understand your plight, which is becoming fairly common, albeit at no time can you decide out of your own free will to lower unilaterally the rental payments to offset any grievances caused. You must continue paying the agreed €900 as per the binding contract you signed.

However, you have two options in my opinion:

1. You terminate the contract ahead as the landlord has breached his obligations. A compensation may be in order.

2. You continue the rental but you both come into an agreement whereby the let is reduced by €200 a month, for example, because of the grievances caused to yourself out of no fault of your own. Such an agreement will have to be in writing and added as an annex to the Tenancy Agreement dated and signed by both parties.

What you at no time can do is remain within the property and pay less without having reached an agreement with the landlord. Otherwise you are likewise at fault and can be legally evicted at your expense by the landlord.

I hope the above clarifies your legal position.

Btw, is "Capanes del Golf" that beautiful development on the road to Benahavis perched atop a mountainside with wonderful seaviews boasting its own lake?

Regards,
Raymundo LarraÃ*n Nesbitt

Unregistered
04-15-2010, 06:52 PM
Hello, I have been renting a property for about 2 years now and have always paid my rent on time into the owners bank account. Last week I received a letter from the solicitors of the community sent recorded delivery addressed to me saying that my landlord owes over 5000 in community fees and that I should pay the rent directly to them. My landlord will not answer any of my calls or emails. My property was rented unfurnished so I own everything in it and I am happy here. The community have said that I wont be able to use the facilities, although the rules say nothing about this, unless I pay directly to them. I am really worried as I dont like lawyers coming after me. I am also not happy about paying the rent to them as surely I would be breaking my contract with the landlord. Any advice on what I should do would be appreciated.

Lawbird Lawyer
04-16-2010, 10:33 AM
Dear Sir or Madam,

Obviously you have no contractual relation with the Community. If you pay them instead of the landlord your landlord will have a just cause to have you evicted from the property.

Unless in your Teanancy agreement it is specified that you must pay for the Community fees it should be your landlord that does.

As in many other dvelopments post credit crunch, landlords are falling behind and their tenants suffer as a result as they are barred from using the communal facilities because of non-payment.

Perhaps it's time for you seek another let in which the landlord hopefully does pay the community. You will be spoilt for choice.

Yours faithfully,
Raymundo LarraÃ*n Nesbitt

Cassandra
10-15-2010, 09:00 PM
Dear Raymundo,
I have written before to you on this same subject but have been unable to recover my Forum name so one Greek goddess being much like another have re-registered under this one!
First, yes the urbanisation in question is Capanes del Golf and it is the one you are thinking of. I love it and it is my home, but the problems continue, albeit in a different way...
I have managed to remain here and for months things have calmed down. However, apparently there is another new faceless "community organisation" and security guards have been told "anyone not having a mando can not pass into the premises".

Now obviously this is nonsense as vistors, ghueasts and tradespeople do not have mandos, but logical reasoning has been somewhat in short supply here for some time.

The owners of the property have been to court and, I am told, have been paying the Community fees although I am not sure what the situation is regarding the 4,000 euros areas and no-body is telling me the truth. The number of my block/apt has never been taken off "the List".

On Tuesday morning, a relief guard tried to stop a friend of mine from leaving the urbanisation "because she didn´t have a mando"!

I am livid! I live at least a half kilometer from the entrance, probably more. I presently suffer from an injured hip and knee, but the other evening I was told that without a mando I wouldn´t be allowed to pass with my car! Other friends have found the interim guards extremely rude, and as I have said a close friend and frequent visitor was told she could not leave! At one point my daughter with a newborn baby was told to park outside. My daughter told them exactly what they could do!

I am a psychologist, not a lawyer, but to the best of my knowledge this is considered unlawful confinement (just let them try to deny ME exit) and is a criminal act. As for not allowing access to the urbanisation - and my home - I am almost certain that this too is an illegal practice, both for me and my invited guests. Most of the time I have my mando (although at one time some tenants were told in a notice that the security code was to be changed and that they had to apply for a new one. Those with the "new" code found it did not work and had to park outside. This is very large development covering many hectares.)

What are my recourses? If it happens again am I in my legal rights to call the police?
After all this I refuse to move, I pay my rent regularly and on time and am sick and tired of what I can only term HARRASSMENT.
Please can you confirm that this type of behaviour on the part of the security company (and instructions issued by the Community to do so) is illegal?
TS

Cassandra
10-19-2010, 04:58 PM
With tregard to the above, I have just been informed that satellite TV was cut off during the month of September while I was away. I have paid in full (and had to wait 6 months for) my satellite contract.
One more illegal act I think.
I see no reason why I should move. What else can I do to stop this urbanisation, Capanes del Golf, from continually commiting illegal acts in order to harrass rent-paying tenants?

61popp
02-14-2011, 07:57 PM
With tregard to the above, I have just been informed that satellite TV was cut off during the month of September while I was away. I have paid in full (and had to wait 6 months for) my satellite contract.
One more illegal act I think.
I see no reason why I should move. What else can I do to stop this urbanisation, Capanes del Golf, from continually commiting illegal acts in order to harrass rent-paying tenants?

Hi Cassandra,
As I am interested in purchasing an apartment at Capanes but hearing at the same time about all these troubles within the community would you be so kind to pass on the contact detail of the community administrator offices? Many thanks.

61popp
02-14-2011, 07:59 PM
Hi Cassandra,
As I am interested in purchasing an apartment at Capanes but hearing at the same time about all these troubles within the community would you be so kind to pass on the contact detail of the community administrator offices? Many thanks.

Sorry my contact e mail is popp61@hotmail.com. Tx