British home owners associations give a lifeline to the residents of Marbella, Spain

A lifeline for the residents of Marbella?

After Supreme Court annuls the Marbella town plan which aimed to legalise 16,500 properties constructed illegally during the years 1991-2006.
According to the association that campaigns against urban abuses in Andalucía, AUAN, a lifeline now exists for third parties in good faith who purchased houses in Marbella with planning permission that now appear to be in doubt as a result of the recent annulment of the Marbella town plan (PGOU).
Maura Hillen, president of AUAN said ‘Thanks to the efforts of various association in diverse parts of Spain, including our association, and an initiative of the PSOE in the Spanish Senate, latterly approved by the PP and other political parties, the citizens of Marbella have been given a lifeline that they may not know about. That is article 108.3 of the law regulating administrative court proceedings, which came into force on the 1st of October 2015 that says that ‘the Judge or tribunal when, in addition to declaring the construction of a property to be illegal, orders its demolition ….., must as a prior condition to demolition, and except in cases of immediate danger, provide sufficient guarantees to pay compensation due to third parties of good faith’.  Given this, we suggest that those affected consult with their lawyers’.
The lawyer, Gerardo Vazquez, spokesperson for AUAN, who worked on the initiative which resulted in the reform of article 108.3 on behalf of various associations, said ‘obviously the legislative reform, which has certain retroactive effects, does not say that the affected houses are legal, but it gives a bit of comfort to those affected because it ensures that you cannot demolish the house of a third party in good faith without a prior guarantee of fair compensation. It is evident that trying to resolve these problems via planning is a long, torturous and, as we have seen, uncertain road. For this reason we believe that citizens who have made the most important investment of their lives, such as the purchase of a house, must be protected via basic changes to state laws such as article 108.3 which is in force throughout all of Spain’.
He added ‘We have been asking for other changes for some time now. For example, according to a ruling of the Supreme Court, an ordinary citizen cannot rely on the Property Registry when it comes to planning matters. This is incomprehensible for many because it’s the Property Register isn’t it?  Unfortunately, this means that you can have proceedings against the property relating to planning infractions that are not inscribed in the Property Register. Therefore a person can buy a house that appears to be fine according to the Property Register and later finds out that they have a house with a demolition order.  This means that there are thousands of cases where innocent parties have bought a house that is apparently free of charges, relying on the information in the Register, only to find out afterwards that the house is going to be demolished’.
The lawyer gave an example, saying ‘Look at the case of Bueu in Pontevedra, for example, where it was declared after more than two decades that the building did not comply with the regulations due to a discrepancy of mere centimetres in its façade. The residents bought their flats in the building without knowing anything because the problem was not inscribed in the Property Register. The Courts decreed that the façade be demolished which left them facing the demolition of their homes without compensation. The residents were due to be evicted a few weeks ago but thanks to article 108.3, the proceeding has been suspended. We hope that similar cases will be avoided in the future’.
Asked about what the associations were looking for he said ‘we think that these types of proceedings should be recorded in the Property Register, precisely to reduce the existence of third parties in good faith who find themselves in this situation. In reality it is currently possible to inscribe these court proceedings but this rarely happens. We want inscription to be mandatory. This requires a change in article 65 of the National Land Law and to article 34 of the Mortgage Law.  We believe that these combined changes will result in restoring confidence in the Administration, as well as transparency and security in property transactions. In addition, it will restore the image of Spain as a country where one can invest without worry, promoting foreign investment in property, economic activity and social progress’.
For her part, Maura Hillen added ‘We are publicly calling on the national political parties to make these changes. We appear to have a certain amount of support from the PSOE and we ask other parties to get behind these changes as happened with the change to article 108.3 of the law regulating Administrative Cases and the similar reform to article 319.3 of the Penal Code, because these are issues of basic social interest.
AUAN press release.

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