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Illegal homes and the Spanish Government

25/04/2007

Question by Overseas Property Professional Media

"By punishing Brits who have bought 'illegal' homes, is the Spanish government sending the right message to the industry - and to potential UK buyers?"

Answer by Survey Spain

The buildings are illegal -

  • The properties were built under permissions granted by the Town Halls, but these were illegal as they were outwith the General Plans approved by the higher authorities. Reasonable due diligence by the landowners/developers, their financiers and their lawyers and/or others would have discovered this and so they acted in that knowledge.
  • It could be said that the town halls are innocent; as they could not hide that the higher authority did not support the permissions. There were at least 400 legal actions by the Junta de Andalucía against Marbella alone.
  • The developers took a commercial risk in the hope that all would eventually be corrected, which appears to have rebounded upon them if the buildings are demolished. If they can show that they were not properly advised, then their advisors are to blame, but that is a private matter between them.
  • If they paid for these permissions, that is unfortunate as the permissions were not legal and were therefore worthless.
  • The developer and builder should be fined severely to cover the cost of reinstating the land; to remove the profits they made; and to penalise them for ignoring the law. They will have known that they were acting illegally.

The buildings should be demolished -

  • If the original planning reason for the land not being classified as suitable for development was approved and legitimate, then the land should be reinstated to that use.
  • Otherwise the community as a whole loses the benefit of having planned and 'rationed' uses.
  • The town's planned services and utilities were not designed to cater for the surplus use created by the illegal development and therefore will not be sufficient for legal development occupiers.
  • People who carry out illegal acts should not benefit from their crimes.

The people who paid for them should not be compensated -

  • As the buildings are illegal.
  • Proper inspection of the properties and the permissions prior to buying would have shown that. Therefore the buyers are deemed to have known.
  • Again, if they can show that they were not properly advised, then their advisors are to blame.
  • The principal advisor will be the lawyer, if it can be shown that they had a duty to the buyer to advise them that the property was illegal.
  • The selling agent, who should have known the property was illegal, may also be liable for misrepresenting the property. However, the buyer is NOT their client and it could be argued that they do not have a duty of care to them. The agent's client is the person who pays their commission, namely the seller.
  • The banks that lent on the property should have known that the security was illegal, or again their advisors should have known and advised. Therefore there may be some doubt as to the borrower's liability to repay the loan.
  • It affects all buyers, no matter their nationality.

Therefore, to answer the question -

  • Yes, the Brits and other buyers will now be aware that if something is illegal when they buy, it stays illegal.
  • At some time the illegality will have to be corrected and it will cost somebody in time, hassle and money to put it right, which may involve them in losing everything.
  • This is the right message, as the law must be obeyed. Without that there is no society.
  • For potential UK buyers, it should reassure them that everybody will be much more careful to act within the law in the future and protect the buyer's interests.

Copyright
Campbell D Ferguson
F.R.I.C.S. Chartered Surveyor
Survey Spain
00 34 952 923 520

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