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Old 08-17-2008, 01:35 PM   #1 (permalink)
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Default Vera (Almeria) Demolition

I was wondering if anyone could tell me any more about the Priors (who had their house demolished) and at least point me in the right direction.
I wrote a series of articles whilst it was happening and want to follow it through.
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Old 09-20-2008, 09:10 PM   #2 (permalink)
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Hi Homefinder,

can you publish your results here as i am also trying to research how to tell if your property is really legal.
I always thought it was legal if it had an escritura and a first occupation licence but now i have learnt that it is not definite with these documents.

looking forward to hearing more

Emma
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Old 09-21-2008, 02:57 PM   #3 (permalink)
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SeVendeCase is absolutely right about the dubious legality of many Building Licenses and First Occupation Licenses.
Basically the whole issue is about where the authority of a town hall starts and ends when it comes to issuing a building license and subsequently the Cedula de Habilitadad (First Occupation License).
I cannot really post it all as it is a very long article but here are some links and quotes -

Vera (Almeria) Demolition | EU Report - This is worth studying because it was issued by the Junta de Andalucia, very quickly after the demolition, in answer to a request from the European Parliament.
It would seem to have been written jointly by an Abogado and a Journalist in a way that carefully explains the law in a manner that can be understood. If you have you ever tried to understand a legal argument submitted by a Precurador to a Court you will know what I mean!
I think that the J de A had it prepared long before the demolition was carried out because it knew that it would have to justify its actions publicly.

Vera (Almeria) | Review and Comments Some links to press comment and reviews.

The property in question certainly had a building licence. Whether it had a C de H is not important because the J de A claims that the Town Hall had no authority to issue the license for land outside its PGOU.

Regarding the right to build generally the report says -

Quote:
According to the Spanish legal system the ownership of land does not carry the right to build freely, on the contrary, the right to build is subject to the provisions of urban management in such a way that town planning - determined by the classification and characteristics - determines what types of usage or change of usage of land are permitted, in accordance with public interest; thus stipulates article 7 of the Land Act (Act 8 / 2007 of 28 May) that the usage of land is controlled for use as specified by the planning authority.


Regarding the competence of the Town Hall -

Quote:
The local corporation (town hall) should grant the license in accordance with the provisions of the legislation and the implementation of urban planning (section 172.4 of the Law on Urban Planning of Andalusia). As the Law courts have repeatedly judged, if the town and country planning regulations are not complied with, the license is null and void . . .


Regarding usage of rural land outside the PGOU as stated my the Court -

Quote:
. . . the Judging Magistrate analyzed the licence granted by the Town of Vera on June 25 in 2003 in favour of the Priors for the construction of a single-family rural house on the site "La Loma" de Vera in land classified as non-urban. The ruling declared the license invalid because it demonstrated the existence of a urban nucleus on land classified as not for urbanisation, having also been shown that the house was not designated for agricultural or similar purposes as specified by the law applicable to land not for urbanisation.



My Opinion: Whilst studying the legality of a building simply, to rely on the Building License and C de H, is very risky and it is also necessary to study -
  • The Town Hall's competence to issue the the licence on the land i.e. if it was within the PGOU.
  • That there is a Proyecto, stamped by the College of Architects, that this Proyecto has been complied with exactly and there are no illegal additions or alterations.
  • That the building is used for the purpose for which it was intended i.e. Vivienda Unifamiliar.
  • There is one great grey area and thet depends on the age of the building. A Town Hall cannot order a demolition after the building has existed for 4 years. One problem here is that this might not apply as far as state law is concerned, another is that, after the 4 years have past, it does not mean that the building is legal.
    How about a building, or a ruin, that has been around for donkey's years as a farmhouse or a barn? In order to restore it as a vivienda, permission for a change of usage may well be required to make it 100% legal.
Reading between the lines, I think that the J de A really wanted to set a legal precedent to ”scare the pants off” the towns halls that had been flouting its authority. The whole thing was a very determined effort on their part. The demolition order was obtained within I year of the issue of the building license but the town hall did not comply. They were ordered by the court two more times to carry out the demolition and finally the court ordered the J de A to do it, then –
Quote:
Mr. Prior informed the Directorate General of Inspection by fax on December 28 2007 that he did not authorize the entry into his home for the execution of the sentence and requested a stay of execution. The Directorate General informed Mr. Prior on January 2, 2008 that Autonomous Administration merely acted as an instrument for the legal execution of the sentence and lacked jurisdiction to decide on the issue. Finally, the Court issued an order on January 4 2008 authorizing the Administration of the Andalusia to enter the home of Mr. Prior in order to execute the judgment.

Finally the J de A spelt it out clearly to the town halls –
Quote:
. . . if the Priors consider that they have suffered losses or damages because of the invalid license, they may exercise the corresponding liability action against the Municipality of Vera for having granted the license declared invalid by the final judgement of the Court.


Finally: Should potential buyers of Spanish property be worried about this? Absolutely not as the solution os amazing simple and always has been. That is to simply get professional legal advice from the start and insist on a valid bill, for professional fees, on completion - with the corresponding IVA, otherwise it has doubtfull legality and perhaps professional negligence cannot be proved.

Homefinder

Last edited by Homefinder; 09-21-2008 at 03:04 PM. Reason: Layout
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Old 09-24-2008, 07:25 PM   #4 (permalink)
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Thanks Homefinder,
great articles!

In this case the building licence should never have been granted plus the family should have been informed as quickly as possible of a problem, as you said possibly in time to stop construction.

I am getting closer to finding out who has responsibility for each area of building licences and legal documentation for a property.
If you have any more information i would be eternally grateful.

anyone know of the cases near Marbella??

At this moment in time i feel that the town halls are getting away with illegal practices while it is the innocent home owners that are being penalised and indeed traumatised by these cases.

there have been a few cases close to us where strange permission has been given and all legal documentation is in place before the Junta become suspicious and declare something illegal or in doubt.

I will keep you posted as to how my research is coming on.


thanks

Emma
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Old 09-25-2008, 08:05 PM   #5 (permalink)
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Default Illegal Building in Spain

Quote:
At this moment in time I feel that the town halls are getting away with illegal practices while it is the innocent home owners that are being penalised and indeed traumatised by these cases.
In my view the town halls "were" getting away with it - past tense! I think what we are seeing now is the aftermath of an abuse of authority on the part of the town halls that existed nationwide.
Many of the culprits have been charged with corruption and are now on bail, awaiting trial.
The Vera demolition was just the J de A flexing its muscles. As a result of this, down in Almeria somewhere, I read that there had been a meeting between several town halls and the J de A and in order to regularise 1,000 of illegal buildings -
1. Those that could be incorporated into the PGOU's would be regularised as long as the infrastructure was provided (and paid for by the town halls or the property owners).
2. Those that where built on land where building could not be permitted (protected, dry river bed, etc.) would dissapear (yes, that was exactly the word used).
3. The remainder would be set aside for further consideration.
The town halls ageed to submit each to inspection, in order to place the illegal properties into these three groups.
In other words, in this case, the town halls are sh-----g themsleves and have "thrown the towel in" before they get made an example of like Vera.

Stuff like this must be happening all over. I am in Moraira. Touch wood, nothing like this has happened here yet.

In Benitachell, neighbouring to the south, the mayor, the deputy mayoress and a German lawyer were arrested, held overnight, testified before a judge and were reaeased on bail the next day for, allegedly, requesting payment of 15,000 Euros from a developer to re-classify his land in a PGOU revision.

In Benissa, to the south, the complex Jardines de Montemar is sitting, completely finished and unoccupied. Around 50 or so of the 80 apartments have been sold and the building is about a year behind. Earlier this year the local residents association claimed, at a public meeting, that the area was not classified for housing but "touristic interest".
It seems that an apartotel would have been legal but not viviendas. At this meeting, a town hall spokesman promised that Jardines de Montemar would never be permitted individual Cedulas de Habilitadad or Escrituras.
Everyone is waiting to see what happens!

I believe that this is going on all over the country and is so commonplace that the national press don't bother to report any more. In other words the Vera (and several other) demolitions have caused a standoff between the town halls and higher authorities.

There was a marvellous one, in Extremadura I think. A developer got permission for a big complex near a Spanish Military Airfield. Instead of building two floors they built FOUR and, in doing so, compromised landing a takoff height clearance. How daft can you get! In the end they had to demolish the extra floors!

What will happen in the end?
Obviously, properties that have been finished and sold will be regularised if possible. Otherwise they will have to be demolished.
What a mess! Bearing in mind the (now) diminishing population of Spain, there of probably enough stock (of resales and unsold buildings) the keep the (reduced) real estate industry fully occupied thorught the resession and 10 years after that - without building any more.

As early as 2003 the Government could see it happening, the banks could see it happening and nobody could do anything to stop the rot.

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