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So Spanish solicitor, are you saying that a Judge can over rule the Law? What hope have the thousands of people going through Court cases got if the law s are not protecting them from the wholesale corruption on the Costa del Sol., all of whom paid deposits in good faith ? It is well documented that some Judges have accepted bribes from developers and have been arrested!
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Tish
If this corrupt building licence is a licence issued without the requirements of zoning ordinances the answer is no, the developer can't, but each case is different and maybe the buyers do not have to bear this situation. In this case we have to consider different aspects
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www.fljordan.com
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I understand the statute and that it is considered law Spanish Solicitor but the facts are that the Junta overruled the law and stated that silencio was not admissable in acceptance of the LFO - what is law and what is happening (or has happened) are at opposite ends of the spectrum - otherwise lawyers throughout Andalucia would have been able to confirm to all their clients that the licences could have been considered issued and in fact they were not able to do that.
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Smiley - patrick@marbellamortgages.com www.marbellamortgages.com www.comparetravelcash.co.uk
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Smiley I think you are not really undertanding this question
First of all I´m talking about LFO granted by Town Hall, nothing about Junta. I can send you many judgments about this issue. Do you know any judgment stating that this silence is not pertinent in this case ? In my view you are thinking about others situations more complicated with corrupt building licences or something like that.
Felix
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www.fljordan.com
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Hi Felix I am talking about the general situation that existed in Marbella where the Junta declared that Licences issued under silencio would not be deemed as legally upheld / they made the announcement i seem to recall at the end of 2005 or early 2006 / it didnt matter whether the property was legally constructed in accordance with PGOU or not but they would not accept silencio as being confirmation the LFO was issued. Hence so many lenders would not grant mortgages on many new dwellings without the official LFO as the regional government had stated it was not acceptable / many lawyers then recommending clients not to complete on purchases simply under silencio owing to the statement by JUnta de Andalucia.
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Smiley - patrick@marbellamortgages.com www.marbellamortgages.com www.comparetravelcash.co.uk
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Smiley
To be honest, I don't know in depth what is happening there because we don't have any client in Marbella with such specific problem so my opinion is irrelevant.
What I was trying to explain in my previous posts was the effectiveness of this legal principle in the Spanish legal system. Again I lay great stress on my previous comments, in plain English, the administrative silence is not a remedy for get something unlawful therefore is valid only if the claim is not opposing to any town planning rule.
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www.fljordan.com
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And I have to add Felix that many of the developments that were claiming silencio were not in breech of town planning rules or the PGOU but the Junta declared they would not accept the statute of silencio as being corroboration that the LFO was deemed to be granted - it is one of the issues that has occurred in Andalucia and specifically Marbella but not only there - hence the confusion for many mortgage lenders as well - the point I am trying to make is that even while it is deemed a statute it appears the Junta can make their own interpretation of the law - ultimately lawyers here were recommending clients did not complete under silencio as there was so much confusion over who was right and who was wrong - my honest opinion is that if the JUnta can take the law into their own hands here then they can do it anywhere - what is supposed to happen and what is reality can so often be so far apart.
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Smiley - patrick@marbellamortgages.com www.marbellamortgages.com www.comparetravelcash.co.uk
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Smiley I like this forum because I am learning a lot specially with your posts. They indicate your preparation in these issues, surely you are dealing everyday with these subjects , anyway I have to say that your expertise and skills acquired about the Spanish legal system is higher than many Spanish lawyers.
I am sure you are realizing how complicated is our set of laws
Felix
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www.fljordan.com
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Please have below in green, the answer to the following question:
If a development (completed 2005)is under judical review ( Elviria Marbella) because of a corrupt building licence, and it has still not been resolved, can the developer claim he has the LFO under Administrative Silence?
Developer cannot claim he has the FOL under Administrative silence in this case by virtue of provision 62.1.f of the Administrative Procedure Act which states that are null and void those acts of the Administration either implicit or explicit by which rights or faculties are obtained without the necessary requirements for the obtaining This message was last edited by mariadecastro on 3/31/2008.
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Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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Thank you Maria.
So that is a definate NO then !?
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It is great to write immediately after my dear colleague María, who surely knows as much about this subject as any lawyer in this forum. In my previously post I just wanted to inform about the effectiveness of this legal principle in the Spanish legal system and again I want to say that the administrative silence is not a remedy for get something unlawful. There is a binding legal time for reply the application for a FLO and use to be three months. If the Town Hall does not reply with a written notification within the time period provided by law , the applicant will automatically obtain the licence, assuming that
1º The correct information was submitted
2º It complies with planning regulations
3º The house has been built as the Building Permission and as the architect project with all the building codes therefore suitable for habitation.
In these situations mentioned of illegal building without licences or something like Elviria Marbella the silence is not admitted.
This message was last edited by spanishsolicitor on 3/31/2008.
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www.fljordan.com
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Thank you Maria & Felix.
It is worrying that by the case from only last week, a Judge is considering the fact that the developer is saying the client cannot have a refund of deposit because the said development has LFO by way of AS!!!!! Why isn't the Judge making a proper judgement based on the law stated by Maria and the facts stated by Felix. This is happening in so many cases. It is very unfair and frustrating for all concerened.
(I know neither of you can answer why this is happening!)
Regards, Tish.
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Hi Tish
Have you got more information about this judgment, any link or something ?
It is very interesting for me
Thanks
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www.fljordan.com
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Hi Felix,
No I haven't any more info. As the person involved in this case is writing to me via PM, I cannot divulge any info as it would be breaking a confidentiality. As this person uses the forum, maybe they will write about it themselves. Sorry! As far as I know, no judgement has been made yet. I'm sure I will know the outcome when it is made. Meanwhile I can ask the person concerned if they would write about their experience at a later date. If I were in their situation, I would not want to jeopardise my case. It is surprising the people who read these forums!!
Smiley..very true!
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Hi All
Tish wrote
It is worrying that by the case from only last week, a Judge is considering the fact that the developer is saying the client cannot have a refund of deposit because the said development has LFO by way of AS!!!!! Why isn't the Judge making a proper judgement based on the law stated by Maria and the facts stated by Felix. This is happening in so many cases. It is very unfair and frustrating for all concerened.
Perhaps the law as stated by Maria and Felix may not apply in this instance and if it does then judgement will go against the developer and he will have to pay the money back or the Bank Guarantee will be a simple thing to enforce by all accounts.
The Judge may have information in front of him or her to make it correct that full consideration must be given to all the facts before making Judgement.
Just Dan
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WHOOPS PRESSED TWICE
Dan
This message was last edited by Just Dan on 4/1/2008.
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The development in question is Santa Maria Green Hills, Elviria. The building permit was for Town Houses not apartments. The BL was suspended in 2004. It remains the same status in 2008. The Law as stated by Maria & Felix is applicable in this case. There is nothing else to discuss.
As tyou have a vested interest in GH Dan, you do not like negative press. Understandable.
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