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The link below is an article from the front page of yesterdays edition of Sur newspaper (08.09.2007). A weak English translation is printed below the link.
I believe the information contained indicates that a precedent has now been set as to the outcome of any owner, on any development who chose to pay a lawyer upfront >€6000 to start legal proceedings against any developer for an unlikely return of a deposit. The court ruled that contract owners are not entitled to a deposit refund and are to be held responsible for legal costs of both parties as well.
It is vital to note that at least part of the development referred to in the artcle was completely illegal, had no correct licence applications (unlike La Reserva de Marbella) and yet is fully included for acceptance on the new PGOU 07 (as is La Reserva de Marbella).
The sentence forces the buyers to fulfill the contract although the work license is annulled by the courts and there is permission of first no occupation. The judge says that it is not possible to be made responsible to the company of the irregularities
08.09.07 -
PROMOTION. The urbanization Santa Maria Green Hills, in the zone of Elviria. /JOSELE-LANZA
Triumph of the promoters in the courts of Marbella. The holder of the Court of First Instance number 3 of the locality has misestimated a demand interposed by the buyers of an illegal floor that refused to notarize the house after knowing that the license of the promotion was going to be revoked by the City council. The sentence considers that it is not possible to be made fall on the company the consequences of the municipal irregularities and forces the buyers to pay the coasts of the process.
The origin of the conflict took place when two British investors who had acquired a house in the residential set Santa Maria Green Hills demanded the promoter of the work, Marbella Vista Golf, to obtain the resolution of the contract by numerous breaches. Between these they mentioned the lack of license of first occupation and the legal situation of the promotion, on whose work license the manager of the City council of Marbella initiated to the last year an investigation of revision of office.
Later, the license was opposed by the contentious route of the administrative one, in a sentence that already has been accepted in the heat of by the City council. The promotion is a set of plurifamiliares houses raised in described ground house to unifamiliar leaned. Part of the construction also occupies ground destined to public roadway and parks and gardens
The buyers also adduced other irregularities, as it does not give of endorsement on the part of the constructor and the fact that the golf course had not been constructed anticipated in the project.
Affected
In the sentence, dictated by the Court of First Instance number 3 of Marbella and to which it has had periodic east access, the judge it considers that the possible responsibility that could be derived for the promoter “it has prevented that the buying plaintiffs have to their disposition” the house, reason why considers that the denouncers “have not been themselves affected by those circumstances”. The “circumstances” to which the sentence talks about are the legal situation of the building.
Also, in relation to the lack of a license of first occupation, the judge understands that she is not a breach on the part of the promoter, but, in any case “a delay, imputable, based on the circumstances, not necessarily to the salesman, but perhaps to the City council of Marbella”.
The license of the basic project was granted by the City council the 16 of October of 2002 to South Sema Investments, whose empowered Giovanni is the Italian industralist Piero Montaldo, stopped in the third phase of the “operation Malayan” and imputed by the judge of a presumed crime of bribe. Montaldo also is including in the complaint presented/displayed by the Anticorrupción Office of the public prosecutor by supposedly harmful agreements for the municipal interests. The work license was granted the 28 to him of April of 2003 by the then mayor, Julian Muñoz.
After obtaining the licenses, Montaldo sold the work in construction to the promoter, organization that now maintains the litigation with the buyers.
The affected ones have predicted to resort the sentence in appeal before the Provincial Hearing of Malaga.
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Hi Kenny - speaking as one who is involved with this development at Green Hills, I just want to (politely) put some of your facts straight having been reading information on another forum.
First, this case certainly does not set a precedent. A precedent can only be set in a 'High Court'. I understand that the purchaser involved in this case will be appealing to the Higher Court in Malaga, so one has to wait for that.
Regards the new PGOU, both Green Hills (and Los Lagos, also in Elviria) show up as having an 'illegal status', though the two developments each have different degrees of illegality.
Green Hills' building licence is currently suspended and under judicial review, the result of which ultimately being.....well, obviously no-one knows. The development has been built partly on Green Belt and areas designated as public parks/roads.
Apparently, "Marbella's own Town Hall architect confirmed to the court the urbanization is currently illegal". There is also no LFO. All this makes this judge's ruling obliging the purchaser to complete more than a little 'curious' and possibly illegal in itself. We can only wait and see what the Higher Court rules.
In my opinion, I certainly wouldn't let this case influence the position of those not wanting to complete on La Reserva just yet.
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Hi. I appreciate your opinion, although I made the differences between La Reserva de Marbella and Green Hills very clear in my initial post.
La Reserva de Marbella is very definitely fully included in the new PGOU 07.
Holding out for a (technically possible) High Court over-ruling will likely take many years and certainly much more money. During this time any irregularities on which a case relies will likely have been even further resolved, thus further weakening the claim.
I posted the link to inform of a decision made by a Judge in a court of law (in itself setting a precedent) which I retrieved from the front page of one of the most important newspapers on the Costa del Sol and for that matter, the whole of Spain.
As I posted some 15 months ago now, not completing on LRdM will be one of the least enjoyable and most time and financially debilitating decisions one could make.
Good luck.
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this is a test message due to problems posting - now resolved.
This message was last edited by seamus kilcock on 9/11/2007.This message was last edited by seamus kilcock on 9/11/2007.
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A number of court cases, including mine, were won by the applicants. It can be done. Anyone who says otherwise hasn't a clue. Sue the developer for late completion and possible irregularities and get your money back. It takes 9 months approx. Use a good lawyer. The total cost is approx 10K E.
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In addition to Pucky's post, I thought it appropriate to quote here a post from another forum, so a balanced view can continue to be shown with regards to contemplating legal action.
Quote:
Whilst many of us are shocked at the Court judgement in this particular case (Green Hills), those with imminent hearings must not loose heart.
A person pm'd me today to say how shocked they were to read about this case, and told me of their experience with taking a developer to Court.
Earlier this year, they won their case. They successfully got their deposit back after bringing the La Reserva de Marbella developer to court.
However it cost 10,000 Euro in legal fees. They thought about pursuing the developer for their legal fees but their lawyer advised it would be at least November before the case would be heard and there was no guarantee of winning. Indeed they were told there was a possibility of losing what had already been won.
They decided that a 'bird in the hand, etc' was best.
They are now very pleased with the decision they took due to the recent Marbella court case in which the developers won.
They wondered though if this will have a profound effect on the decision making by the various Judges on similar cases? :?
This person who does not wish to be named, thought it would give hope to people in a like situation for me to tell the forum members of their case.
In light of a successful case, let's remain positive.
Unquote.
Good luck to all, whatever you may decide - but having been (successfully) to court in Spain myself, can not stress enough how important it is to ensure you have a good, independent, unbiased lawyer who is working for you and not the developer. And believe me, there are many biased ones!
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Dragging quotes from other forums with no date or link attached to support supposed events is, at best, unhelpful, especially as each development is in a unique situation. As a completed owner I am equally concerned that some members of this forum have no investment in La Reserva de Marbella whatsoever and that they themselves may be (representing) lawyers and distorting facts for their own self-gain.
For the record, I posted the well-publicised outcome of a high-level court case of another development as an example of the latest decisions judges are making since the acceptance of the new PGOU 07 by all parties at the town hall in July 2007, on which the entire development of La Reserva de Marbella Fase II is included.
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"For the record" Kenny, I am now also posting a now well-publicised outcome of a high-level court case of another development as an example of the latest decisions judges are making since the publication of the new PGOU. Suggest you read the link bottom of my post which is to a well-respected Spanish news website which reports on a case was won yesterday against the developer. You posted about the Green Hills case being lost, I think it is appropriate to post a case that has now been won. The court ruled that the promoter at Los Lagos de Santa María Golf in Elviria must return their money as he had not obtained a first occupancy licence.
This is a very important ruling based on a judgement (no LFO), a situation that also applies to La Reserva, regardless of legal/illegal status.
I find it offensive that you suggest anyone posting opposing views to yourself are possibly 'representing lawyers', have a 'hidden agenda' or 'distorting facts for personal gain'. This is a forum where all views besides Kenny E's should be allowed (without immediately being ridiculed as 'unhelpful') in order to give balance to a situation, and enabling others to make informed decisions. Is this thread part of a forum which should inform/help/advise.....or is it the Kenny Everett Show?
Anybody who writes on forums could fall under the suspicions you mention, so likewise are we to 'suspect' the same of you? Reading some of your posts, your 'aggression' and 'dismissiveness' could smack of AGENT, but I'm benelovent enough to give you the benefit of the doubt.
I have openly stated I purchased at Green Hills, you can see all my postings since beginning of June under the Santa Maria Green Hills forum http://www.eyeonspain.com/Secure/MsgBrdsThreads.aspx?dev=S3&name=Santa%20Maria%20Green%20Hills and my story under the 'Green Hills not Built' thread. Do you think I started making false posts as part of some grander plot for self-gain? I think it is important to inform people of all current legal scenarios, whatever development they are on, in order to help them make their own informed decisions as to which direction to take.
So read this, and stop being so dogmatic about what YOU think is the right thing to do. Suggest you try and (politely) take on board other members' viewpoints as well.
If you think posting this case re. Los Lagos is irrelevant, I am only doing the same as you, posting it - to quote you - "as an example of the latest decisions judges are making....".
http://www.typicallyspanish.com/news/publish/article_12446.shtml
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Gosh, I've just seen this.
Kenny E on another LRM thread: "I was addressing certain forum members who appear intent on causing instability in an out of this forum for their own hidden agendas; people who are constantly attempting to unsettle owners with inaccurate rumours based on outdated or completely fabricated information; sometimes from other developments which have little or nothing in common with La Reserva de Marbella"
I find your intolerance of other members quite astonishing.
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The idea of a forum is that one can post on any number of threads.
The link you attached in your angry post distinctly states that the latest decision ruled in favour of the promotor as I correctly posted.
You are from Green Hills. This is a forum for La Reserva de Marbella. Your attempts to appear knowledgable about our development (never mind yours) fall a long way short of what is required to fool anyone here.
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The idea of a forum is that one can post on any number of threads. Of course, but my point related to what you were posting, not where you posted it.
The link you attached in your angry post distinctly states that the latest decision ruled in favour of the promotor as I correctly posted. Yep, but again you missed the point. My link also 'distinctly states' that there has been a decision ruled in favour of the purchaser since then - which was my point, to add some balance
Angry? Why should I be, I went to court and got my money back and didn't listen to uninformed posts such your: "any irregularities on which a case relies will likely have been even further resolved, thus further weakening the claim". Just to correct this for the benefit of other members, any event that takes place retrospectively (after the case is first brought) does not affect the case. But what does irk are forum bullies who want to stifle the sharing of any information that does not suit their agenda.
Your attempts to appear knowledgable about our development ? (never mind yours) fall a long way short of what is required to fool anyone here. Not trying to appear knowledgable about your development or to 'fool' anyone. A cheap insinuation which only makes you look ridiculous. Suggest you re-read my post. As you obviously didn't get it, the reason for my link was to simply post news about yesterday's 'court decision' - your topic on your thread that you started. No-one else allowed to post on the same subject? Remember you are the one that introduced this news about another (my) development.
Incidentally, I do have an interest and some knowledge re. LRM as a good friend of mine has bought there and is more than interested in (any) current court decisions, as indeed may some other members of this forum be also.
You've decided to complete and I can understand how/why you are desperate to get everyone else to do the same. But tough - everyone has the right to learn all news regarding current court decisions before deciding whether to follow in your footsteps or not. Being aware of what is currently happening in Spanish courts surely can only help people make an informed decision.
Post when the news is bad for going to court, kick up a stink when the news is good. Mmm.....do I note a hint of bias?
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An informed post below from an excellent and respected lawyer Maria de Castro who posts regularly on EOS. She wrote this on another forum which is currently discussing this recent ruling that went against the purchaser at Green Hills. Thought it would be good to give a lawyer's insight on the Green Hills case for member's information :
Quote:
"I think it is a completely unfair decision which serious and urgently needs to go to the Appeal Courts in Malaga and then, to further, higher jursidictions if needed.
In my opinion, the case needs to be analized under the principles of Private Law: contract as they are now implemented by the principles of consumers law. Nothing to do with whatever has happened in the Administrative realm of the granting of licenses!!. According to this body of law, there is a breach of contract which deserves cancellation and full refund of money plus interests to the purchaser. The consequences of the lack of LFO needs to be charged on the developer, whatever the claim this developer can ( or cannot!!) oppose to the Local Council. Of course, you, the purchasers ( consumers) don´t have to bear the weight that has arisen as a consequence of illegality".
_________________
Maria Luisa de Castro (www.costaluzlawyers.es)
Food for thought for anyone involved in a development that does not have a LFO (License of First Occupation) which includes LRM.
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I was right - you have no investment in La Reserva de Marbella and you are representing a lawyer.
I quite enjoy your desperate ramblings. Please stick around to look increasingly foolish as time goes by...
This message was last edited by kenny e on 9/13/2007.
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Pathetic reply.
Just for the record, I do not 'represent a lawyer', Maria de Castro was not my lawyer for my successful court case. I have never met or spoken to her. Have only read her many postings over the last couple of years on this and another forum, advice and information that she gives freely.
Simply find her posts informative and worthy of posting where appropriate, especially concerning aspects of Spanish law - as many members of EOS on other threads will vouch for. Her contributions are respected and valued and from what I have read on another forum she has also, like my lawyer, recently been successful in retrieving monies on illegal builds.
Her analysis/comments on the Green Hills case that started this thread (the result of which you deemed worthy as using as an example not to go to court) again obviously does not suit your agenda of persuading people to complete. Tough. This judge's decision is not a definitive one and the purchasers concerned will be appealing. Will be interesting to see the result.
How can I be the foolish one, I have my money returned. Until the Junta de Andalucia approves Marbella's new PGOU plan, you're the proud owner of an illegal build that has no legal building licence or LFO. Hm!
From your reply, know there is only one 'desperado' here. And it's not me.
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Not looking to take sides and only posting as an owner on La Reserva but can’t help but state the obvious.
Can see a reason why Kenny E may wish to post the courts decision as he has a vested interest in this development and its future, ( this is his business and that of owners and future owners of La Reserva de Marbella)
What I am finding hard to fathom is how Mr C found this posting as there are dozens of other developments in similar situations.
Why is he suggesting that people should not complete on this particular development????
As he says that he has no personal interests in La Reserva and has admitted that he has a legal victory regarding either Green Hills or Los Lagos, what is the motivation or intent regarding just these three developments now.?
Call me cynical but something just doesn’t add up and as an owner would welcome Mr Cs response if for nothing else than to calm mine and may be other residents concerns in these difficult times.
Maybe also the owners of the other two developments where he says he posts ,(which he dosn,t now have a direct interest in )perhaps as these two forums appear somehow to be linked they wish they may ask the same question.?
If he does not represent a solicitor what dose he represent?.and why does his postings seem so hostile. ?
Just Dan
This message was last edited by Just Dan on 9/13/2007.This message was last edited by Just Dan on 9/14/2007.
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Not looking to take sides and only posting as an owner on La Reserva but can’t help but state the obvious.
Can see a reason why Kenny E may wish to post the courts decision as he has a vested interest in this development and its future, ( this is his business and that of owners and future owners of La Reserva de Marbella) The court's decision was not this development. Was purely pointing out his comment re. it setting a precedent was incorrect.
What I am finding hard to fathom is how Mr C found this posting as there are dozens of other developments in similar situations. As I said before, have a good friend involved with this one. We both read it and discuss on his request. Do you have a problem with this?
Why is he suggesting that people should not complete on this particular development???? I'm not, and never have done. But I am suggesting that members should be able to read all information available, especially what is happening in recent court cases. Kenny appears to want to stifle this. Read my post again, I made it very clear: the reason for my link was to simply post news about yesterday's positive court decision to give balance to the court case that was lost. This will hopefully help somewhat when it comes to weighing up factors if trying to decide whether to go this route or not.
As he says that he has no personal interests in La Reserva and has admitted that he has his money returned regarding either Green Hills or Los Lagos, what is the motivation or intent regarding just these three developments. My motivation was purely to help inform. I understand the quandry of whether to go to court or not because I've been there, does it really matter if I happen to be involved in a different development or not? The mental anguish of what to do for the best is the same regardless of development. Before my court case, I was helped a lot by others with advice which I greatly appreciated. This is the first forum I've ever come across that has such a suspicious and 'anti' reaction regarding someone taking the trouble to post news.
Call me cynical but something just doesn’t add up and as an owner would welcome Mr Cs response if for nothing else than to calm mine and may be other residents concerns in these difficult times. I'm afraid the only thing that doesn't add up is you being so suspicious. Am just someone who originally only wanted to post a link to add some balance to information given so far, but obviously mistaken that it may have been of interest.
Maybe also the owners of the other two developments where he says he posts ,(which he dosn,t now have a direct interest in )perhaps as these two forums appear somehow to be linked they wish they may ask the same question.? I've lost the thread of that question. What same question is that?
If he does not represent a solicitor what dose he represent?. The fact you both seem so obsessed that I represent anyone is totally beyond me.
and why does his postings seem so hostile. ? Perhaps Kenny saying my posts were unhelpful and "distorting facts for my own self-gain" set the tone.? Not very condusive for a constructive exchange, was it.
If there are no purchasers at LRM interested in any input of news about what is happening currently in the courts with development-situations similar to yours then I will happily bog off and return to my couple of usual forums (not EOS). There at least everyone appreciates being able to discuss/exchange news openly re. anything to do with property and the current situation without being accused of being intent on 'causing instability', or having hidden agendas, or posting 'inaccurate rumours based on outdated or completely fabricated information'. Unbelievable accusations to make about other posters.
Also, unlike here it seems, we appreciate input from lawyers who freely give their time to add input or offer us advice when sought. What a sad thread this is on LRM where even that is ridiculed. Maria de Castro posts a lot on other EOS threads but will suggest to her that she never bothers here with such a reception.
Good luck to you all,
and hope that answers all your questions Dan. Just a suggestion - try and not be so suspicious of everyone. There really is no need.
This message was last edited by mr.c on 9/14/2007.
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Mr C
Thank you for your reply.
You are interested in this thread because of a freind. ?
Why cant the freind do it themselves and why do you avoid direct questions ?
Just who are you as you appear to have no direct interest in any development ,only to float around posting tit-tats from news reports. ?
We are more than capable of reading our own newpaper reports and making our own informed decisions.
I do suggest you refrain from posting to me in the rude manner that you posted to an actual owner of La Reserva de Marbella .
As you say perhaps it is best if you do bog off (your words) as I am getting the feeling that this thread and others are not used as the editor intended.
I have just observed the same tit-tat newspaper postings on the other developments that you say you HAD? an interest ?
,Perhaps owners and future owners there may also wish to take you up on your offer
Good Day
Dan
This message was last edited by Just Dan on 9/14/2007.
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I have completed, 18 months ago now and am generally happy with development. I am also happy to hear both sides of the argument, the good and the bad the positive and the negative.If people do have hidden agendas, well i'm a grown up and have to take that possibility into account when reading posts. I consider this an open forum and welcome other opinions and sources of information. However what does sadden me are the number of personal attacks. No-matter what our personal situations we should still be able to put forward well reasoned and even passionate arguments without lowering ourselves to personal slurs and inuendo.
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I read this and many other forums regularly (although I do not post much) and am one who hasn't completed yet on La Reserva. I am not ashamed to admit we are still unsure what to do for the best, so am always interested to read all comments and advice from both sides.
To be honest I am very dismayed at the personal attacks and suspicions aimed at mr. c, and do not understand why he deserves this. I would appreciate any comments he has to make from his experience and have been interested to read his link. Kenny and Dan, please be a little more tolerant to other people as there are those of us who have not completed and would like to listen/learn from others besides yourselves.
Thank you.
This message was last edited by mercedes123 on 9/15/2007.
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