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The Spanish Lawyer Online

Antonio Flores’ Blog

Thoughts about laws and regulations which affect foreigners in Spain


Archive for November, 2009

Mayday Mayday! Our Apartment Has Sunk 3 Meters Below Pool Level!

November 26th, 2009
Sunken Apartment at los Lagos de Santa Maria

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!!

Litigation, Property ,

Manilva Costa Uncovered!

November 23rd, 2009

Shell game scamAnyone 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.

Litigation, Property , , , , , ,