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Yes**********, The same Law specifies that in its declaration or reasons and in provision number 1.
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Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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I actually asked our local Notary if it's possible to sign without LFO (I'm waiting to sign on a completed trastero [store room], and the developer told me we can sign whenever we want).
The notary told me that yes, we can sign, BUT the deed will state that the building is "under construction", and that it would have to be altered once the LFO is issued to state that it is "completed". (Presumably the alteration would be at my own expense, although the notary told me it would still be the responsibility of the developer - somehow I don't think I'd have much chance of getting them back to the notary and paying, once they've got my money!)
I didn't ask specifically about the Land Registry. Maybe I would find that by signing on an unfinished building, the property would not be properly registered in my name. (Which would also make it difficult or impossible to sell, in case it never got amended?)
I mention this because maybe it explains how some notaries can "legally" accept signings before the LFO is granted?
By the way, I decided to wait, even though I would really like to empty all the junk out of our spare bathroom soon!
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"Get your facts first, then you can distort them as you please"
Mark Twain
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how long are you expected to wait? we have decided to wait until everything is legal and the paperwork is in order, however, surely this should have an end date, and how can this be sorted. we do not wish to wait forever and would prefer to buy another property with FOL in place if necessary. can we withdraw from a contract?
Bill Marshall
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How long's a piece of string? It can depend on something as fickle as how much work the town hall clerk who has to put his rubber stamp on a bit of paper has got piled up on his desk. More usually though, it's held up while the developer and town hall argue over some little detail. In our case, who is responsible for re-surfacing the road outside the building. The town hall want the developer to do the whole road, the developer is wiling to pay for his share only. Stale mate.
And chocka spare bathroom for the last two years!
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"Get your facts first, then you can distort them as you please"
Mark Twain
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Roberto, Don´t worry about the register of the property in the Land Registry. Your Notary can confirm you that you won´t have any problem in this matter. He will explain you everything about the differences between a inscription of a property with or without LFO and as you know you can order from the "Notaría" the inscription of the property.
felix
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www.fljordan.com
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So, are you saying I should go ahead and sign? What was the notary talking about when he told me that I would have to alter the escritura later once the LFO is issued?
_______________________
"Get your facts first, then you can distort them as you please"
Mark Twain
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Roberto
I am not saying "go ahead" because as I´m sure you can understand I haven´t seen any documents of your file and perhaps you have a lawyer. I can´t interfere
I am in this forum because I have some British clients and I want to know everything about their problems. It is pretty useful for me to be up-to-date and here I can learn a lot. Sometimes when I am reading your posts I succumb to temptation and write something
You said "Maybe I would find that by signing on an unfinished building, the property would not be properly registered in my name. (Which would also make it difficult or impossible to sell, in case it never got amended?)" Don´t worry about this. You can register your property in your name and you will be able to sell your property but ask to the Notary all these questions because according to the text of the deed things can change. Assure yourself with the Notary that you won´t have any problem in the Land Registry. As you know notary in Spain is a professional of the Law who exercises simultaneously a public function to provide the citizens the legal certainty that establishes the Spanish Constitution in the area of the negotiable instruments. He, has a juridical confirmed formation and is selected by rigorous examinations that guarantee his knowledge, as special government employee who is, acts with independence and impartiality. So you can get the best advice in this kind of things through the Notary you hire.
You said "What was the notary talking about when he told me that I would have to alter the escritura later once the LFO is issued?" Well I have to say that in the Land Registry you can inscribe many documents like conveyance, inheritance, rights of way, easement of light, freezing orders, land segregations, urban encumbrances, usufructs, mortgages, ground rent or leasehold payments, restrictions on use, fines, or even court orders for distraint or seizure. etc. and of course you can register this new situation; the grant of a FLO If you don´t register you will not have the guarantee of legitimacy and this new situations of the property would not be recognized against third party.
In short, you have a first deed which are creating a legal relationship between you and the developer, by this deed and its subsequent register at Land Registry you are protected against third parties. As the notary told you this first deed will state some special feature (Lack of FLO or whatever) and the most important thing is that you are creating obligations (developer has to get the FLO) that are enforceable. When you get the FLO you will have to register this circumstance and you have to do this by deed.
My general advice in this kind of cases is:
The deed have to state:
"The developer has not fulfilled thoroughly the obligation of handover because the LFO has not granted, for this reason you will withhold a percentage of the consideration"
"With the signature of this deeds the buyer does not acquire the full possession because of lack of and essential element which is the LFO"
It should be included an agreed damages clause stipulating the sum to be payable at a daily rate in the event of lack of LFO in a new deadline granted to the developer from the signature date of the first deed and withhold 10%-15%-20% of the price until the LFO is granted. Don´t forget to include in the first deed the obligation of the developer regarding the fees of the second deed. He should pay the fees of the second deed. It is not your fault and you don´t have to pay more fees
Have you checked FLO´s file ?, request a copy of the whole file from Town Hall or surely the developer has these documents. You will see if the FLO has possibilities to go ahead
Felix
www.fljordan.com Spanish Law Firm
This message was last edited by spanishsolicitor on 2/27/2008.
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www.fljordan.com
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Felix, thanks for the comprehensive reply. I'm sure your contribution in this forum will be welcomed by many, and I hope you will also find some useful information which will help in your dealings with British clients. Of course, I understand that you cannot advise any specific course of action without full knowledge of individual cases, and hope that others will realise this too, but even so, your input is very interesting and will be much appreciated.
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"Get your facts first, then you can distort them as you please"
Mark Twain
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So... the National Parliament is.....passing Laws which can be questioned and flouted by Notaries...and Notaries are the perfect model of Justice and legal correctness. Definitely.... I am not in your side here Felix, with all my due respect towards you.
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Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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Oh dear, you make it sound a bit like town halls and mayors handing out illegal building licences. Who should we trust? 
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"Get your facts first, then you can distort them as you please"
Mark Twain
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Are you referin to my post Roberto? I am a bit confused with what you mean.
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Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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Sorry I didn't make myself clear.
On the one hand, Felix said that Spanish Notaries provide "legal certainty", but on the other hand, you suggested that what Felix said a Notary will advise, is in contradiction to Spanish law.
I likened the situation to innocent people believing that the mayor of a town hall can be trusted to act within the law, only to discover that building licences were handed out illegally in many cases.
Similarly, most people will believe that a Spanish notary can be trusted 100% to advise you correctly, but perhaps in some cases they act outside of strict legal parameters. If this is true, then who will protect the innocent?
I'm not sure I have made my point any clearer? Sorry if my language is confusing.
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"Get your facts first, then you can distort them as you please"
Mark Twain
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I think we don´t have to argue all the time about Notary´s obligation because in fact today they are authorizing hundreds of deeds without FLO in Murcia, Andalucía or Valencia. Now I would like to share with everybody my experiences regarding FLO and Building Permission.
Nowadays it is not enough to have a "building permission" or a FLO issued by a Town Hall in your hands for assure the legality of a dwelling or a house. A good practitioner have to check before any money is paid, even the reservation fee, the administrative proceedings of this building permission or FLO. Why ? Because as everybody knows we have in some Town Halls officers and Mayors issuing illegal licences.
Example
My client Mr. Smith want to buy off-plan in Resort "XXXXX" Golf resort
First of all I want to see the documents about Licences of this resort and I call "Manolo" the builder- promoter or whatever
felix: "Hi Manolo, How are you ? I have a client, Mr. Smith.. he wants to buy an apartment in your "resort" and I want to see the permissions etc."
Manolo: "Of course I will send you the Licences, Don´t worry"
felix: "Sorry Manolo but I want the whole file of this licence not only the final resolution of the Town Hall"
Manolo: "But, I have the licence, is it not enough ?"
felix: "No, It is not. If you want to sell anything to my client you have to go to the Town Hall and request a copy of all the documents"
manolo: "I don´t understand your requirements, you are so strict .......gr gr" Do you want to f*** the sell ?
felix: Well manolo I am very busy bye bye
After one or two weeks I receive the file and reviewing all the documents everything looks fine but I discover that the house is built in a land where development is not permitted so I advice my client, Don´t buy, don´t buy there, but Mr. Smith felt in love with the house and he has a fellow who bought one year ago there and he told him that he had a lawyer who told everything was fine when he bought, even the fellow has a FLO. The agent and Manolo are pressing a lot and finally Mr Smith decides buy in another resort. But sometimes another Mr. Smith decides to buy this illegal house even against my advice and he is advised by a new solicitor recommended by the Agent because as the agent say " You won´t have problems with this new solicitor furthermore he was the solicitor of your fellow and he has no problems"
There are so many reasons to set aside a Building Permission but you can avoid problems if previously you audit all the documents of the administrative proceeding
Felix
This message was last edited by spanishsolicitor on 2/28/2008.
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www.fljordan.com
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Notaries are not infallible in their interpretation of Law as Lawyers are not as Judges are not.... just a matter of human nature 
What the Ground Act says in number 19 is clear and Notaries and Registrars are legal proffessionals who need to act in protection of consumers.
The Supreme Court ( high and ultimate interpretor of Law, which can produce Jurisprudencia, which is a complementary source of Law in the Spanish legal system) in a decission passed the 19th of April 2007 already stated what the Ground Act, dated May 2007 also declared:
"According to provisions 1097 and 1258 of the Civil Code, it is obvious that, one of the documents that needs to be handed to buyers is the first Occupation License which proves the habitability conditions of the house, its fitting to the licensed Work project, and its safety and healtiness conditions (....) as contracts link not just to fulfill what is agreed in the document but to every consequence that, according to its nature, are according to good faith, uses and Law.
This obligatoriety , which is presented at the National level, is compulsory in all the national teritory as the content of the Ground Act, regardless the regional regulations on Planning Law, presents minimums to be met for the protection of the constitutional rights of consumers regarding Ground.
No one: developer, Notray, registrar, judge, lawyer....in any of the spanish regions can disregard this as it is a National Law obligatory in all the national teritory.
Have a good weeken... I am leaving for Seville now!
Cheers,
Maria
This message was last edited by mariadecastro on 2/28/2008.This message was last edited by mariadecastro on 2/28/2008.
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Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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María I don´t find the word Notary in the text of this sentence you extracted
"According to provisions 1097 and 1258 of the Civil Code, it is obvious that, one of the documents that needs to be handed to buyers is the first Occupation License which proves the habitability conditions of the house, its fitting to the licensed Work project, and its safety and healtiness conditions (....) as contracts link not just to fulfill what is agreed in the document but to every consequence that, according to its nature, are according of good faith, use and Law.
Everybody is agree with this, but you can infer any Notary's obligations from this extract. It is just a legal obligation for the developer or builder to handover FLO
María I wish you a nice week-end. Have fun
Felix
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www.fljordan.com
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Felix:
You are completely right, the express legal requirement for Notaries to not authorise any purchase deed without the First Occupation License was finally contained in Provision 1 of the Ground Act ( may 2007) .
That Supreme Court Decission stablished with great clearity the full content of the fulfillment of contracts by developers. It can be infere that Notaries ( at protecting Consumers´rights) were also under the obligation of checking the fullfilment of the whole set of obligations before authorising purchase deeds,as again, they need to be for protection of Consumers.
Now, it is expressly and undoubtedly clear with the Ground Act, provision 19.
Felix, have a great weekend you too. Hope to meet you anytime soon. Where are you based?
Best wishes,
Maria
This message was last edited by mariadecastro on 2/28/2008.
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Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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Sorry to move away from the subject of this thread but are Bank Guarantees covered under a similar law to protect consumers?
Why, for instance, isn't the Notary responsible from the outset for checking that Bank Guarantees are in place when a contract is drawn up? There is a massive hole in the legal system that allows this malpractice to continue. It should not be left to the discretion of lawyers to check for this, some of whom may have close connections, shall we say , with developers, but should be an enforceable legal practice at the commencement of any purchase agreement. Even if this costs more ( additional Notary fee) it would act as a formal legal check to ensure protection for the consumer.
I'd be interested to hear your views on the practicality of this Maria and Felix, the likelihood of any required change to the legal system in the future, and the legalities of consumer protection re Bank Guarantees as things stand now........
Perhaps this query and any reply should be moved to the thread on Bank Guarantees, but I wanted to follow through from your informative postings on FOL's.
Many thanks for your contributions.
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can any one tell me if you can rent out your propertey with out the hab licence.
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Yes thats no problem. Thousands are!
Its only selling now you cant do - unless its a resale as that seems to get through - its new stuff thats a problem.
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Quite frankly m'dear, I don't give a damn!
www.herbalmarbella.com
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Ads:
Notary does not check private contracts unless you want to notarize them and in that case, they have got no legal obligation for that check. It would be a good practise to have Local Councils requiring the Bank Guarantee before issuing work licenses. If you want more on this... listen to the coming Podcast by Justin.
Rixxy:
You should not be renting properties without the FOL. It is forbidden by Law to occupy a house without the FOL.
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Maria L. de Castro, JD, MA
Lawyer
Director www.costaluzlawyers.es
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