Facts right or wrong on Escitura?

Hiya everyone,

Just want to make sure my facts are straight on everything I've been reading and told with regards to selling property in Spain. I know that an Escitura is in essence a 'Title Deed'. However, I believe I am correct with the following:

1) In order to sell a property, the property must have an Escitura.

2) In order to ascertain an Escitura, the builder/promoter must apply for said before building commences.

3) If an Escitura has not been obtained in such a maner, the builder/promoter cannot sell the property.

4) If said property is part of a community and does not have it's own Escitura, then it belongs to said community and we all have communal access.

Given that this is correct, then this is were I'm going with this:

As some of you know I own an apartment in an Urb. in Duquesa, Manilva. When puchasing my apartment I was informed that it came with amongst other things, a storage area. This storage area is contained within the grounds of the Urb. itself and can only be accessed via access to said urb.

A month or so after completion we took possesion of our apartment and was told that the storage units are seperate properties and would we like to buy one. Having tried to buy one we couldn't because of a legal issue between the builder/promoter and Manilva Town Hall.

I am almost 100% positive that these units did not have seperate Escitura before the Urb was built and when all the properties were sold. The community has been set up and we have a President, etc and pay communty fees, etc.However we have NOT signed of the Urb. with the builder/promoter due to legal wrangles over these units and further legal commitments wtih regards to the community as a whole (things that are broken, do not work, were never put in, etc).

In the mean time the builder/promoter has been trying to sell these units and failed either because they do not have indivdual Escitura or they were to late in applying for said and are trying to ascertain them. One owner I know of has access to a storage unit however they do not possess the legal paperwork to say they own it due to there lawyers stating there is a legal issue over these units, however as they paid the extra monies to the builder/promoter and said being tied up and cannot be refunded, they have been given legal access.

Am I correct in saying that as a result of all this that the storage units belong to the community? There are 33 apartments and 33 storage units below the Urb. which can onlty be accessed via access to the Urb. itself. They have not been sold and cannot be sold and as they are within the community of the Urb. they fall under as a communal asset and we can therefore as a community vote on how we use said units?

Good one, init!

I would realy apreciete some help with this one

This message was last edited by TechNoApe on 5/18/2007.

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Hi  Techno.   As you say thats a good one to try and find the correct  answer,  did you know you can buy a property  ? without  the Escritura even being issued  or without even planning / building  permission  in place  they use the system called a private contract  some agents use this way to sell illegal builds , its very risky  but it is used .   Are your   storage areas  under the buliding  or outside as I would think if they are under the building they are almost part of it.   Best of luck with this one  maybe you could buy one wih a private contract if its not on the original spec.        Regards Rosi n 

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I don't have the answer to this quandry. If I did, I would of course be charging by the hour. Techno, you mention that there are lawyers already involved in this issue, so hopefully one way or another it will be resloved and you will let us know the outcome. In the meantime, I have a couple of thoughts:

You say that when purchasing the apartment, you were told that it came with (among other things) a storage area. If this was the case, then it would have been detailed in your contract, which should have included the plan, dimensions, location and unit number of said storage area, just as the plan and location of the apartment were (?) If your purchase included a garage place, this should also have been detailed, plan, location etc. Each seperate part of your overall purchase should have been accurately described in the contract.

If the storage unit was NOT included in your contract, & when you completed on the apartment were told it was NOT included, it would appear you were sold a line when purchasing. Who "informed" you that it was included?

You go on to say that the builder/promoter cannot sell the untis due to a legal issue and problems with the town hall. This makes me wonder whether they were actually included on the original plans, or if the builder has added them at a later stage? You say the community has not signed off the urb. with the builder. Has the town hall issued the LFO?? If there has been a deviation from the original plans approved by the town hall, it's highly likely that the LFO would not be granted.

I'm not exactly certain of the order of things with regards escrituras, but I think the builder would have had an escritura covering the entire plot, which would then be divided up (according to the Horizontal Law I believe?) as individual "plots" or properties are sold. It is at this point that a new escritura for each individual property would be made. Therefore it's logical that if they cannot be sold at present (for whatever reason) then there will be no escritura pertaining specifically to them yet. However, I'm not sure that means they are therefore by default communal areas. Without knowing more details of the town hall dispute (and without being a lawyer!) it's difficult to speculate more on this really.

That said, the fact that there are 33 storage units and 33 apartments seems to me more than just a coincidence. If it was not an equal number, then it would not surprise me that they were intended to be sold seperately. However, I can't help wondering if the original intention was in fact as you were informed, i.e. that each apartment would have it's own storage, and that the builder is now trying to pull a fast one by selling them seperately?

Even if the storage rooms were to be included as part of the sale of each apartment, they would not necessarily have individual escrituras. Rather, they would be included on the escritura for the apartment, just as a garage place would be, BUT it would have a seperate Land Registry reference. (Incidentally, if you do buy a storage room seperately on it's own escritura, the IVA will be 16% as opposed to 7% if it's included on the apartment escritura.)

And then again, although I think this is rare, I had an incident not long ago with the sale of an apartment in a complex where every apartment has it's own storage room in the basement. I never noticed when I bought the property that my escritura made no mention of the storage unit  and hence the buyer's lawyer picked up on this. Fortunately when I bought it, the seller had given me every previous escritura for the apartment since it was built 40 years ago, and I was able to point to the reference to the storage room on the very first escritura. From this reference it was established that each property in this complex does in fact have an allocated storage room which is INDIVISIBLE from the apartment, i.e. it can never be sold seperately. Although the storage room is a seperate entity from the apartment, it has no individual Land Registry reference number. Remember, this is in a 40 year old building. I think things have changed in Spain a bit since the 60's, so this may not be relevant anymore!

I hope this waffle hasn't confused the issue further. Maybe it's even helped a little ??? As I said before though, this really sounds to me like one for the liers lawyers. Good Luck!

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After nearly 5 long years of looking, asking, demanding ete. etc. we have recieved the OBRAS NUEVES for our apartment block of 184 apartments.

This is a fantastically long document which is, in effect, a copy of each apartment deed. Apparently the builder has this and at some stage ( possibly planning) the Town Hall also has a copy...the Land Registry does not so the very helpful chappie in Orihuela said. The deeds issued to individuals all come directly from this document and whatever is stated on this is what you own. I.e. if it is not on your deeds, it ain't yours.

The document also indicates what is Community property and what is the builders.

It seems that this documentation is hard to come by, although, like every thing in Spain, if you can ask the right person ( and that's another story!!) you get the right answer ( e        v        e        n        t        u        a         l        l        y   ! ! ! )

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Hiya all,

Thanks for the help and advice.

Roberto - Sorry bud, am still in the learning process, what's the LFO?

The 33 units in question are below the apartments and the Urb itself. Access is strictly prohibted via access to the Urb.

In other words, you have to have a key to one of the Urb. gates in order to gain access to our Urb, then go to one end of the Urb. and down some steps to a door which leads to the units that are directly underneath the other apartments and communal areas of the Urb.

Hope that makes sense.

We have a new Lawyer and the President and the Administrator are meeting with them this week.

Good Luck to us all.

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We have the same with our garage area, which is also the basement of the building. People who have paid extra for a garage parking space have a key to the garages and they cannot be accessed by the public. However the builder has not completed the area ( after 5 years ) and does not look as though he intends doing so.

Just because they are 'private' will not stop the builder renting the spaces to any old person if he wants apparently!!

Good luck to you in your mission.

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Sorry, Techno, LFO = Licence of First Occupation, which is the English term used most often (here on EOS at least) for the habitation licence which is (hopefully) issued by the relevant town hall when a new building is completed, which essentially states that the building has been completed according to the plans that were approved, and that it is fit to inhabit. Do a search or scroll through the message boards for more on this - it's a well documented topic.

Karen, if any part of the development was not completed according to the plans, surely the LFO should not have been issued?

The fact that garage spaces or storage rooms are not accessible by the general public is not really relevant here. I think that's a given anyway. The point is, the developer/builder is perfectly at liberty to sell these units individually to people who aren't buying apartments, so long as that was laid down in the original plans. For example, I have bought a storage unit in a new building behind where I live - my building doesn't have any. Naturally, as an owner of a property there, no matter how small, I have rights of access. Any units that remain unsold after completion (and issuing of LFO) are presumably still the property of the builder, who should then of course contribute the relevant quota to the community (once formed), just as any other "private" owner. (Invariably they will refuse to, but that's another story). I'm not too sure therefore what you mean, Karen, when you say the document you obtained shows what  is community property and what belongs to the builder. The only thing that "belongs" to the builder once the property has been divided up, is whatever he hasn't yet sold.

I think that the document Karen refers to is probably the Escritura de Obras or some such thing, which is basically a temporary deed showing how the plot is going to be divided up once finished, but meanwhile is still effectively one property owned by the developer. I guess this is what you need to obtain in order to ascertain whether the storage units were planned as individual properties or to be allocated to each apartment. Either way, I don't see how they could be communal property. One big storage room maybe, for all to use, but 33 rooms? If they were all communal property, all 33 apartment owners would be entitled to use every storage room! Doesn't make sense.

I feel like I'm getting out of my depth here. Hopefully Maria or someone better qualified than me will come to my rescue!

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Hi Roberto,

Thanks for that.

However if the Town Hall hasn't issued the LFO then how can he sell the apartments. All are now sold apart from six, which were retained by the builder/promoter. The rest have been sold and most are now inhabited either by resident owners, tenants or in use as a holiday home with a view to move to Spain (such as myself - once I get arond to looking for a job in Spain).

The Town Hall hasn't stopped any apartments being sold, but they are stopping the builder/promoter from selling the Storage Units. My guess is that the original plans have not been adheared to. IE. The original plans were for each apartment to have a seperate storage unit and now they have changed those plans and are trying to get permission to do so, possibly because they conned some people into buying a storage unit seperatley when they purchased thier apartment.

The builder/promoter has also tried to get us to change the 'coefficients of our apartments' in thier favour in exchnage for the units, so this really does make me think that they are trying to get rid of them somehow as they can't sell them to us or anyone else but at the same time don't want ot give them to us.

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Hi Roberto, Interesting to read your post.

We certainly have the Habitation certificate and the garage area certainly is not completed. However as this is not going to be lived in perhaps it doesn't need the same paperwork? It is mentioned nowhere on our certificate.

The builder sold the parking spaces individually and says he will not 'hand over' the garage until most are sold....this will take for ever as there are 182 spaces and only about 30 sold. Although the garage houses Community things, ie. water tanks and lift shafts, the builder says the garage is his ( even tho the garage is effectively the basement of the apartment block). This is what he has not sold.

We have very little lighting and no automatic gates, as per the plan, although the wires for these are present.

We are quite at a loss as to how to proceed wbout this situation and any advice would be welcome.

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Techno, unfortunately promoters often sell the apartments before the LFO is issued. I'm not certain, but I don't think there is anything illegal with that, but it IS illegal to occupy it without a licence of first occupation (logical?)

I don't quite follow what you say about the promoter wanting to change the coefficient "in their favour". If you are saying that he is now prepared to concede that you are entitled to a storage unit, then it seems logical to me that your coefficient will increase slightly, since you will own slightly more square metres than previously. But "in their favour"? How is that in the promoter's favour? Sorry, I may be being thick, but I don't understand what you mean.

Karen, you say the builder claims the garage is his, but surely what you mean is 152 spaces in it are still his. The other 30 belong to other owners, and everything else is communal property. I honestly don't know if different rules apply to parking than to apartments, but it seems very strange to me that the basement would not be counted as an integral part of the building which has been issued the LFO. How the builder has got away with not completing it according to the plans therefore I have no idea. Maybe the right palms were greased at the town hall? Is your space included on your escritura (or maybe you have a seperate one for the garage space)? Your coeffiecient should be included on the escritura, and you should be paying community charges for it. The builder should be paying for 152 spaces. I'm guessing however that the commuity has not included maintenance of the garage in it's budget as it's not officially in use yet?

I'm sorry I can't be of any more help, but this does seem a pretty odd situation. I'm happy to sound off my thoughts on it, if it helps at all though.

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Hi Roberto,

What the builder/promoter is asking for is that all owners hand over a percentage of our individually owned property to them, 0.85% to be precise. Thus they have called for every owner to hand over this percentage of the 'coefficients of our apartments' for which they will then 'negotiate' on the 'trasteros'.

BTW, I find it interesting that not one Lawyer has even submitted a reply post to this thread!?!

Plausible answer: The corruption that is rife in Manilva and/or not wanting to shoot themselves in the foot should their interpretation be incorrect.

This message was last edited by TechNoApe on 5/26/2007.

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Now I'm completely baffled, but also intrigued, so I hope someone else will join in on this one and give us some more ideas.

I can't for the life of me understand how the builder/promoter can ask you to "hand over" 0.85% of your apartment. Remind me, do you already have your escritura? Is the apartment registered in your name (with the Land Registry)? If so, as far as I know, the only way you can transfer any part of your property to another party is by signing a new deed at a notary, as if you were selling the property as a whole. But to transfer a small part (0.85%) only means you will then be a joint owner of your apartment - it just makes no sense to me. Is the builder hoping to gain rights to crash on your floor when he's has a few too many at the local bar?

All sounds a bit dodgy to me. I'm not entirely surprised no lawyers have answered your query yet. I hope it gets sorted for you soon. 

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TecNoApe      Is the the builder saying that there is a mistake with your sq. mtrs. on the deeds and that all the deeds  include the storage area ( but not really saying it )  and thats why he wants your 0.85% so he can then say legally the storage areas are mine and not on your deeds very clever if nobody thinks about for long. as Roberto said you would be creating new deeds with all the papers that go with it ,it sounds really dodgy  he proberly think lots of owners will go with this to end the problem any body that falls for that one must be crazy .  There must be many greasy hands in that area. Are you paying the local council tax yet if its all completed with the LFO /services or on builders supply.  This is really interesting what will turn out in the end . Regards  Rosi n

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Hi Rosi and Roberto,

Thanks for your help and advice.

The builder/promoter is asking us to change the coefficients of our apartments in order that the storage units can then become part of the 100% of the urbanisation - this would involve a new registry. Apparently they can only sell them once this is been done.

To do this we would need all owners to unanimously agree, this would never happen and indeed all owners that were present and/or represented at the last meeting voted a unanimous no.

We are now looking to take legal advice as some of us believe what I have stated below in more original post is correct.

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You need to go mainly to waht it was stated in the contract.

 

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