Habitation certificate

Quite agree Woodbug, the problem may be though that who do you focus on as this seems to be common with many different Town Halls - do you try and have demonstrations outside each one? 

I believe that at Camposol they have an organised committee that had had long debates with Mazarron Town Hall, so not sure of their reaction.

It appears that Camposol now has two action groups - a non political one and a newer political one that intends to get elected onto the council to make things happen and the very best of luck to them. Its scary to think that the authorities could possibly turn on hundreds of home owners on previously considered legal communities as they did in Axarquia, where SOHA calculate that 10,000 homes in that region are affected and may become demolition contenders.

I believe that if all affected communities were to come together, find the weakest link in the chain and snap it, then go on to the next weakest and do the same, the system would soon wobble. 

Just out of interest has anyone checked if you have consumer rights to demand (in writing) the legal reasons from the Town Halls as to why you are being denied LFO's or Habitation Licences?

(Under the rule of law under the section Open Government it states 3.4 Official information is available on request).

Also are there any legal time limits in place to assist in this regard? 

(Under the rule of law under the section Regulatory Enforcement it states:

Also are their actions in contravention of the rule of law when they retrospectively change the status of buildings to "illegal" in this way?

(Under the rule of law under the section Regulatory Enforcement it states

6.5 The Government does not expropriate without adequate compensation).

Just a few thoughts to check out with regard to possible contraventions to the rule of law in Spain (see http://www.worldjusticeproject.org/what-rule-law ).

I mention this because the outgoing European Commissioner for Justice and Fundamental Rights and Citizenship, Viviane Reding, back in March 2014 formulated a framework to safeguard the rule of law see http://europa.eu/rapid/press-release_IP-14-237_en.htm)

Note the new European Commissioner replacing Viviane Reding is now Martine Reicherts.

Food for thought??????

If someone on A has their C of H it may be because the town hall has recently taken it over, but some people have a piece of paper from the town hall, thinking it to be the C of H, but it is in fact a document relating to it and not the real thing.

Not just Camposol but there are hundreds and hundreds of houses in the area controlled by Playa Flamenca (Orihuela Costa) town hall still without Habitation Certs. However, many of these properties have been up for over 12 years and many have been sold a couple of times over without the certificate. Apart from one area, they have all the utilities up and running with meters installed.

One area, however, has been up for the same length of time but on an area where something like 250 houses were given permission to build but they put up over double that amount. Those poor people often have electricity cut off, mortgages by the builder taken out and are being threatened with repossession despite paying the full amount and have had to pay for meters to be fitted. They then work out how much each property owes and pays the water and electric companies.

The notary in Torrevieja accepts properties with utilities for sale despite no habitation cert. The sellers solicitors retain 450 euro to pay for a certificate if one ever comes over the horizon. Knowing that town hall with their infighting and coalitions changing monthly that will be the day the flying pigs also come over the horizon.

Here’s just a few observations from various sources that attempt to explain the situation re lack of LFO (for new builds).

Note that in some areas town halls have issued LFOs for illegally-built properties, so an LFO doesn’t always mean that a property is 100% legal. –

This document is essential to determining that the property complies with the building regulations applicable in the area.

Lenders normally require a LFO before they consider granting a mortgage loan against a property. The only exception would be the developer’s bank, which has already underwritten the whole development and is able to offer a mortgage loan without it because they are eager to spread the developer’s default risk.

It is not legal to occupy/live in a property without the mandatory administrative LFO. So basically you legally own a dwelling which you may not occupy nor rent from a legal point of view.

Licences, in general, may not be attained ‘contra legem’, against the law..

You will not be able to take out a mortgage on the property or re-mortgage it by any lender other than the developer’s.

You will not be able to benefit from the services from utility companies; only from the builder’s supply (water and electricity) with all the associated problems this has; namely that you may be cut off at any time as it is the developer who is paying for it and if they go into receivership you will be shut off. Besides, a builder’s supply is only intended for construction, not for domestic purposes. Site supply electricity (‘luz de obra’) has limited strength and power surges are commonplace on simultaneously turning on multiple electrical appliances such as air conditioning and a dishwasher.

A lack of a LFO implies that you are actually reducing the pool of potential buyers for your resale.

If there are planning issues, the town hall may set a charge against the property and you, as the new owner of a new build, may be held liable to pay the fine for the planning illegality (and not the developer).

You will not be able to let the property, at least legally.

Developers will always try to impose a notary of their own choice at completion…hence the importance of a buyer’s right to freely choose before which notary he wants to complete.

There is no (national) law that requires an LFO as a prerequisite for completion in new builds

.The law should be addressed asap at a national level to clearly and resolutely require, once and for all, the granting of a LFO to complete to plug this nefarious legal loophole in most autonomous communities

How can you possibly be expected to complete on a property which hasn’t even been inspected by the local planning authorities?

And sadly these are just a few observations…… there are many more on the web that identify problems in far greater detail.

How many of these observations I wonder still apply today?

Many thanks for all the interest you are all taking, it seems if we would all like to take legal action, so many barriers are in our way, the cost to start with will rocket. If  there are any companies feel they could make a difference for all the unfortunate property purchasers in our position. This again is a cause for concern when so many purchasers are tied up in a mortgage, They do not want to rock the boat or increase the debt they already have. All we look for is justice.

I have not had any garantee from the legal profession that they can solve any of the problems regarding Habitation Certificates. I researched the lawyer who acted for us, found that they were registered with the legal society of Spanish Law,  Then after employing them, I returned to the internet research they were no longer listed. After which I collected our Deeds and sacked the company.

I am sure there must be Spanish companies that are up to date with the Property purchasing Law, that will be able to solve the problems we all have. I have tried our M.E.P. but their hands are tied because they have no power to be able to do anything. Therefore, it may be that we have to go higher. 

Is there any way to knock on the DOOR of the New Spanish Premier and get help to start the ball rolling. Someone needs to get the problems solved before thousands of new purchasers are caught up in the same scam. Who is gaining from the sadness of so many people that love Spain and want to spend their lives amongst these lovely people. 

WE NEED HELP TO CHANGE THE WAY THESE UNCARING CROOKS  CONTINUE TO CHEAT US.

SPAIN WILL THEN BE ABLE TO HOLD ITS HEAD UP AS A VERY MUCH LOVED PLACE IN THE WORLD TO LIVE.. 

If this problem is set to carry on WHY is the Spanish Govenment doing nothing about it. We would all like to see the local government offices taking on the problem. And stop putting so many hitches in the way of Justice. 

This message was last edited by Poedoe on 16/09/2014.

There is some excellent useful comment on this thread.  For me the input from Ads was particularly good as it was completely new and represents a different approach.  But having said that the big problem is the bureaucratic Spanish culture.  Bods at the town hall are well trained in the art of finding a reason preventing them from taking action and they've got all the time in the world to do so.

You mention "Justice" Poedoe but that simply isn't in their dictionary.  They have a different mentality and I believe the only way to make progress is by exposing their ways to the media by physical peaceful demonstration.  This may have a postive effect with the politicians who are considerably more sensitive to criticism than their subordinates.

Hi, There has seen so much differing information regarding Habitation Certificates/FLOs. I have also sent many posts on the subject. CAN anyone tell us the law on this subject. Regardless of the crooked builders & agents that give information that is very vague. Where can anyone get the true information set out when purchasing property in Spain regarding the Habitation Certificate. 12 years of research and still no solid answer has been found. I purchased a book on Spanish Law and no actual solid answer has given the answer to this question. Why are Property Agents. Lawyers/solicitors and all those conected with selling & purchasing property in SPAIN have not giving a SOLID answer to the question that so many people have asked. If it is a regional difference then the Agents, Lawyers & Local Government  officers should give the information when asked. So many people are confuded, is this the way of Spain.  The Lawyer, Notery & all concerned need to Tell The Truth. 8 years after purchasing a property in a block of apartments We still have no Solid answer. Regardless of the work our President & Administrator had put in to get the so called Habitation Certificate granted.

Poedoe, have you or your community President and Administrator sent any request (FAX, so as to act as legal record of correspondence) to the Town Hall to request, in writing, the reason why your property (or properties) are not being provided with LFO?

Have you requested (via Fax) for the Town Hall to identify the date when the property (or properties) was examined to check if they complied with planning regulations, etc?

Also have you requested (via FAX) that the Town Hall identify how any developer debt associated with your property (or properties) is currently recorded in their system of administration, given you have no LFO?

Perhaps Maria or Keith could identify if these official requests to the Town Hall might be a necessary pre-requisite to fighting for your rights?

Just a thought!

Hi as far as I know our administrator & Presidents have been working with the local council and have the correspondence to & from the town hall. We are owners of one apartment in a large block of which 11 are owned by fully paid up non nationals, and approx 6  owned by National who are mostly heavy in debt with the monthly Community fees.  50% of the the unsold appartments are owned by the Cam Bank & the Builder. 

We have an annual meeting and also many emergancy meeting but never get much news of where they are with the research. The latest situation if we wish to use our apartment, We must pay €70 for a temporary electricity meter + the usage cost for the period we stay even though we are paying €80 a  month in community fees, Our property deeds note that the community fees should be under €30 a month. The water meters are available but as we are unable to get perminent Electricity meters. We therefore, wait until we can have both before we sign up. Amost 3 years  now since we have been out to our appartment since the undesirable squatters lived there and damaged so much of the complex. We feel until the LFO/Habitation Certificate is granted we don't want to spend holidays in our Dream Home.

According to this, Poedoe, "It is not legal to occupy/live in a property without the mandatory administrative LFO. So basically you legally own a dwelling which you may not occupy nor rent from a legal point of view. ", this implies that you can't legally occupy the property anyway.

Therefore, the question remains, is this denial/non provision of LFO at the point of legal completion in full view of Notary, without any prior warning of illegal build or any other planning contraventions, in itself in contravention of your rights and in contravention of the rule of law? The question also remains how can you be expected to complete on a property that hasn’t even been inspected by the local planning authorities?

More importantly, the question remains, is this legal loophole of sufficient magnitude and scale to be considered a systemic breakdown in the conveyancing system in Spain, if denial of LFO subsequently leads to administrative failures which expose the purchaser to significant risks associated with planning irregularities and/or risks from being made accountable for hidden developer debts.

Also does this constitute sufficient imbalance within the process of legal purchase (to the benefit of developers/Banks) to be in contravention of the rule of law which recognises the requirement for legal certainty, equal treatment, no expropriation without adequate compensation, open Government to provide information upon request, etc ????

I wonder can Maria/Costaluz advise?

I have asked Marie who advised me to sign up which means more costs, therefore, I need to know if anything can be done before I comit to further costs. 

At the completion the Notary informed us that they would hold on to the final payment for the property with a cheque from the Builder Architect, once the complex was completed the funds would be paid to this company. less than a month later the fund was paid to the builder Architect after which the builder Architect  entered the complex & stole the Electrical pump system from the underground carpark, this was done by cutting off the pipes which flooded the parking area. 

Several crooked actions since this time he has rented out the apartments he still owns, never paid any community fees, left unpaid utility bills and many more problems. This tells me that he is a powerful crook that has officials like the Notary under his influence. Our Administrator's based in Alicante are said to of worked very hard to sort out all the problems the complex has, THE COMMUNITY PAYS A MONTHLY FEE yet they seem to be powerless. 

Somewhere along the line our complex like many other's someone is causing our problem. If you can look back to the Costa Blanca News artical dated Oct 23-29 2009, Alex Watkins ran an article RESIDENTS SEEK TO LEGALISE HOMES. This did no good as 5 years later we are still in the same position. The complex signed up with a new Administrator 4 years ago, and we are no further forward, we have been told that the complex is legalised but it has not helped.

We have paid all the Builder/Architect utility debts and now have a communial account with the Electrical Company. BUT no perminent individual meters.

The whole system is a mess and nobody involved in the buying process will put their hand up to admitting liability at any stage of a transaction. There appears to be many gaps between the lawyers obligations and those of the Notary that leave important issues open to question. The Notary does not work for you and has no obligation to you - he simply ensures that the purchase deed and the transaction meet Spanish and International Law. It is therefore the Lawyers duty to ensure that all other matters are dealt with in a correct and professional manner and this is where most problems arise.

A building regulation compliance Inspection is required on any new-build, just as they are in UK before 'sign-off' can take place, but tens of thousands of properties were not inspected during the boom years because there were simply not enough inspectors to cope with a massive demand for site attendance and because no inspection certificates were issued, this may be the cause of town halls refusal to issue documentation. If certificates and other relevant paperwork are not in place during the lawyers investigations the buyer should be informed and a wise buyer would walk away. Here is a link to the document issued by the Spanish Housing Ministry on buying safely. I hope it helps anyone about to enter the jungle.

http://www.fomento.gob.es/NR/rdonlyres/062ECBD7-5F1D-42EA-AAC8-8EC29AD04DFC/102197/06_safeltpurchase_house_en.pdf

One purchaser of our complex attended the completion but the builder did not attend, therefore, the funds they had paid were held by the Builder 3/4 of the price agreed. I am not sure if this was ever repaid but for many years the purchaser was out of pocked. Others have a mortgage, how can a mortgage be granted on a property that has not been inspected and legalised by the mortgage lender. 

8 years on we now have a live-in Caretaker who hopefully keeps the undesirable's & squatters out. Very few of the owners spend any time at the complex, and those who have not paid the community fee are not granted with a temporary electric meter as they are unlikely to pay for the utility power they use. The community are still saving through the monthly subscription of €80 euros to collect the funds needed to install the Transformer, we did have the funds but the damage caused by the squatters ate a lot the funds we had. The pit seems to be bottomless. 

My husband used to deal with the certificate of habitation at our local town hall. It is not necessary to change in to the new owner's name however if the new owner insists then they have to pay for it because it is not required legally.

My advise is to enquire ( through independentv means on the cause of lack of habitation license) and from there, to see what (1) parties wants,  what (2) can be done, what (3) agreements can be reached or if (4) as a final recourse, judicial action is necessary to prevent major problems/solve existing ones.

Every situation is so different that I cannot bring general answers but it is a fact that the problem on owners with no FOL and a Bank mortgage on them NEEDS TO BE ADDRESSED and solved

Maria,

I have more questions relating to a far wider perspective of the problems encountered due to lack of LFO provision, which I would be extremely grateful if you could clarify on each point please.

Is it mandatory for the LFO to be provided by the date of completion according to the date mutually agreed in the purchase contract?

If not, how are purchasers' rights protected under Ley 57/68 if a purchaser refuses to proceed to completion due to non provision of LFO?

Do these rights remain until provision of LFO?

Due to recent SC (Supreme Court) ruling, i.e. time constraints on legal action to recognise cancellation rights and return of monies, have the SC effectively overruled purchasers' inalienable rights, and is this in contravention of the rule of law and principal of legal certainty? See http://europa.eu/rapid/press-release_IP-14-237_en.htm Viviane Redings recent framework to safeguard the rule of law, which states

“(b) legal certainty, which requires amongst other things that rules are clear and predictable and cannot be changed retrospectively; “

Does any failure to make mandatory the provision of LFO by the completion date as per purchase contract also demonstrate unequal favour towards developers/Banks thereby contravening another rule of law which in Viviane Reding’s recent framework to safeguard the rule of law it was stated

(f) equality before the law. The Court has emphasised the role of equal treatment as a general principle of EU law by stating that "it must be recalled that the principle of equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union".

Many thanks as ever.

Ads: Questions below in bold green:

Maria,

I have more questions relating to a far wider perspective of the problems encountered due to lack of LFO provision, which I would be extremely grateful if you could clarify on each point please.

Is it mandatory for the LFO to be provided by the date of completion according to the date mutually agreed in the purchase contract? According to Law 57/68 it is. According to so far Supreme Court interpretations ( Supreme Court is not using Law 57/68, incorrectly, according to my legal point of view), not always

If not, how are purchasers' rights protected under Ley 57/68 if a purchaser refuses to proceed to completion due to non provision of LFO? I wonder the same. I undertsand that social sensitive, history sensitive, good faith sensitive interpretation of law is needed ( it is established in provision 3 of our Civil Code:

Article 3.
1. Rules shall be construed according to the proper meaning of their wording and in connection with the
context, with their historical and legislative background and with the social reality of the time in which they are
to be applied, mainly attending to their spirit and purpose.
2. Equity must be taken into account in applying rules, but the resolutions of the Courts may only be based
exclusively on equity when the law expressly allows this

But every case needs to be treated much in detail by Judges as Law 57/68 has a tuitive ( protective), imnperative character in its definition and contents, which has been reiteratedly made clear by Judges at Appeal and Supreme Court level

Do these rights remain until provision of LFO? According to Law 57/68, they do. And even more, according to Law 57/68,  they remain till effective hand over of the property to buyers.  Think for instance of a buyer who  can oppose completion at at Notary if he clearly finds FOL has been  unduly granted. 

Due to recent SC (Supreme Court) ruling, i.e. time constraints on legal action to recognise cancellation rights and return of monies, have the SC effectively overruled purchasers' inalienable rights, and is this in contravention of the rule of law and principal of legal certainty? See http://europa.eu/rapid/press-release_IP-14-237_en.htm Viviane Redings recent framework to safeguard the rule of law, which states

“(b) legal certainty, which requires amongst other things that rules are clear and predictable and cannot be changed retrospectively; “

Take always into account that what SC is doing is an interpretation accordiong to provision 3 of the Civil Code ( as above). It is true that there are different type of cases and situations and together with buyers who bought a second home and acted for cancellation right after the default was clear, there are other ones who did not care about the delays, abandonned their investments and are now trying to regain a benefit which can be considered out of the legitimate protection that Law 57/68 is providing to home buyers. But again, every case is different and general answers very rarely are useful in practical Law.

Does any failure to make mandatory the provision of LFO by the completion date as per purchase contract also demonstrate unequal favour towards developers/Banks thereby contravening another rule of law which in Viviane Reding’s recent framework to safeguard the rule of law it was stated

Those off plan contracts where completion deadline were not clearly expressed have always been, in our opinion, null and void, according to LAw 57/68 and Consumers Act. It has not always been easy to deffend that in Courts. Most buyers in the real estate boom were not well informed, other ones, it is true, were not caring too much for completion deadlines as they were possibly buying an investment product to be resold. Again, every case is different.

(f) equality before the law. The Court has emphasised the role of equal treatment as a general principle of EU law by stating that "it must be recalled that the principle of equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union".

Many thanks as ever.

Thank you so much, Maria. The debate continues I’m afraid!

You mentioned the following "there are other ones who did not care about the delays, abandonned their investments and are now trying to regain a benefit which can be considered out of the legitimate protection that Law 57/68 is providing to home buyers. "

BUT, how do you discriminate between those who are looking for retrospective benefit, from those who had every reason to be fearful of proceeding until sufficient case law was in place to protect them, or no win no fee opportunities came into existence (since they would have been financially compromised).

But far more worryingly, how do you discriminate from those who have delayed until such time as judicial rulings are consistently enforced across all autonomous regions, or until such time as judgements relating to Ley 57/68 IN ITS ENTIRETY are consistently achieved, or that compromising legal loopholes in the conveyancing system are correctly addressed?

There have been contra legem rulings and inconsistent judicial rulings, (highly questionable), which MUST be recognised and addressed for trust to be sufficiently restored, and sadly for the Supreme Court to suggest otherwise, or deny admissibility for consideration of cases in such instances where rulings have not taken into account all the facts relating to illegalities or manipulative ploys to avoid legal responsibility, does not demonstrate moral authority or provide sufficient reassurances to restore faith in the system of justice in Spain. To rely solely upon discretionary moral authority as opposed to legal certainty (which is sadly open to abuse and inconsistency) does a grave disservice to innocent purchasers and continues to place them at grave risk.

Only when consistent rulings, (across all autonomous regions with timely justice in place that do not leave innocent purchasers worrying for a decade (and more) if they will ever retrieve their monies according to EXISTING LAW, with recognition of Ley 57/68 in its entirety (no cherry picking!) with timely provision of LFO's according to end dates stipulated in purchase contract)  are recognised by the judiciary, can we safely say, hand on heart, that purchasers are not at continuing risk from a legal lottery. How can the Supreme Court discriminate against those understandably waiting for all of the above to be consistently recognised/enacted in Spain, before they dare proceed to litigation for their cancellation rights and return of monies?  IMHO inalienable rights according to LEY57/68 should never be subjected to time constraints so long as innocent purchasers are exposed to continuing risks of this nature, risks that are sadly totally beyond their control. 

As for "Rules shall be construed according to the proper meaning of their wording " you only have to review Keith Rule's opening paragraph of his educative BG petition which states the following "….It appears that 40 years after Ley 57/68 was implemented we are experiencing the same “repeated abuse” and “obvious criminal acts” which unfortunately for many innocent purchasers has again caused “irreparable damage to trust and good faith. This is a serious public order matter that the Spanish Authorities must tackle immediately. We now have the exact same situation of a serious disruption of social life” , for everyone to appreciate the reasons why this law was instigated in the first place nor fail to comprehend the proper meaning of this law, and realise why it needs to be enforced in its entirety immediately, (with recognition of mandatory provision of LFO by the date of completion according to the date mutually agreed in the purchase contract). Likewise comprehension that an offplan purchase contract without completion deadline clearly expressed is null and void (a classic example of manipulative ploy to avoid compliance with an existing law).

But this has implications far wider than just that Maria when you take into account the failure to adhere to the rule of law appertaining to timely justice with respect for the due process of law. Much of this comes back to Keith Rule's astute observation from the outset of his petition, of the need for a specialised court to effectively and efficiently address these ongoing problems, which ironically would have saved time and effort for all, and in the process would have restored faith in the system of justice in Spain. It's as though innocent purchasers are being made the scapegoat for a system that over this past decade has tried to address these grave injustices in a highly lengthy and piecemeal fashion, rather than recognising the wider perspective of the need to adhere to existing law, taking due regard for the major loopholes that we are now sadly exposing. It’s important not to lose sight of the harsh reality where during this last decade injustices were compromised by lack of timely enforcement thus further exposing the purchaser to major risks such as developers asset stripping or going into administration in the excessively lengthy interim periods whilst they were awaiting justice.

With reference to “Most buyers in the real estate boom were not well informed, other ones, it is true, were not caring too much for completion deadlines as they were possibly buying an investment product to be resold. “ I don’t understand the significance being made here with regard to adherence to existing law. It’s important to note that developers were happy to settle out of court when prices were rising exponentially (as they could attain good profit in the process), but as the market declined they then looked for ways to avoid their responsibilities with regard to adherence of Ley 57/68.

IMHO, moral authority to adhere to existing law with timely justice and effective recording mechanisms in place for judicial review/monitoring purposes are a pre-requisite for any trust to be restored........ but this requires a commitment from the Government and a willingness of good lawyers to work together to ensure the legal lottery and loopholes and manipulative ploys of this compromising nature are adequately exposed and thereby hopefully addressed.

But in the interim, sadly, so long as difficulty remains to defend in courts (in other words the judiciary and/or Supreme Court fail to consistently recognise the law in its entirety and/or the loopholes which continue to place innocent purchasers at grave risk), the only fallback that purchasers appear to have at their disposal is for them to come together in an organised fashion (BG petitioners and all those suffering from LFO abuse) to expose that Spain is not consistently adhering to existing law and is failing to safeguard the rule of law and the principal of legal certainty in a timely fashion that respects the due process of law.

But why should they have to take such extreme measures, when in reality there is a perfectly good law already in place to protect them and a credible practical solution as advocated by Keith Rule several years ago, in the form of a specialised court that could speedily enforce the law and bring about well overdue reform to close the legal loopholes that sadly make a mockery of the current conveyancing system in Spain (which in itself negatively affects economic growth and investor trust) ?

To summarise:

Any conveyancing/judicial system that does not consistently enforce INALIENABLE/cancellation rights and return of monies according to existing law and in a timely fashion that respects the due process of law, or fails to recognise the requirement for mandatory provision of LFO’s according to Ley 57/68, whilst continuing to place innocent purchasers at risk in this way without taking into account all of the above, is bound to beg the question, is this systemic breakdown and a threat to the rule of law by not adhering to the principal of legal certainty nor entitlement to effective judicial protection?. 

p.s. For all those affected I suggest you read a remarkable resume by Antifreeze just posted in the comments section on Maria's legal post 1209 Questions and Answers on Law 57/68.... see http://www.eyeonspain.com/blogs/costaluz/13792/Legal-post-1209-Questions-and-answers-on-Law-5768.aspx. It makes for stark reading.

Thank you Maria and Antifreeze.