Author: Gustavo Calero Monereo

DRAFT OF THE DECREE ON THE LEGALIZATION OF HOUSING ON NON-DEVELOPABLE LAND OF ANDALUSIAN REGIONAL GOVERNMENT

Written by Gustavo Calero Monereo on 13 August, 2011. Posted in developer, Headline, judgment, NON RESIDENT, property law, Property law, undeveloped land, URBAN LAW, urban plan. No Comments on DRAFT OF THE DECREE ON THE LEGALIZATION OF HOUSING ON NON-DEVELOPABLE LAND OF ANDALUSIAN REGIONAL GOVERNMENT

Three weeks ago, we received in our offices a copy of the draft implementing Decree of 20^th of June 2011, which regulates building and scattered rural settlements on non-developable (non-urbanizable) land in Andalusia.

This draft is supposed to be created as an attempt to regulate the situation of a large number of properties located on non-developable (non-urbanizable) land in Andalusia, where criminal or administrative proceedings cannot be filed against them for land development liability, because the offense or infringement is extinguished by prescription. The Andalusian Regional Government is partially responsible for this situation, as they have not protected or controlled the legality regarding land developments of municipalities for many years. Meanwhile, they have collected the profits from the transfers of title ownership by means of the transfer tax.

Regarding the draft of the Decree, the concept of constructions assimilated out of ordination is not understood. The use and enjoyment of these constructions can be exercised, but a complex administrative procedure is established, so that the city councils certify the security and necessary facilities for the use and enjoyment of these properties. However, the resolution to this procedure shall never mean the grant of the First Occupancy License, neither the owner’s rights shall be recognized to be exercised before any administrative or criminal proceedings (article 7, section 6 of the Decree).

If the use of housing is recognized and regulated to preserve the rural area, the environment and the scenic value where the construction is located, then, why the First Occupancy License is not granted when the owner is enjoying the property? What does “non-recognition” mean before any court proceedings? As a result, it could be understood that in the event of court proceedings, this recognition of assimilated housing shall not have any legal “value” for these proceedings, that is to say, legalization or regulation does not exist.

Maybe, the problem is based in the creation of the concept “assimilated to out of ordination”, which was incorporated by the Decree on Urban Discipline of Andalusian of 2010 and its implementation.

Furthermore, an additional problem arises, as the Land Registry jurisdiction belongs to the Spanish Government. As a result, the State legislation should firstly include this legal concept of “assimilated out of ordination” within its rules in order to authorize the registration in the Land Registry of any administrative action which establishes a construction under the consideration of this concept. Nowadays, the only existing concept is “out of ordination”, but nothing is referred to constructions “assimilated” to these ones. Then, the Regional Government is not authorized to establish the access or registration in the Land Registry, as this jurisdiction belongs to the Spanish Government.

Lastly, in many Andalusian municipalities as the Axarquía region, thousands of isolated houses have been built on non-developable land under the corresponding construction permits. Then, it does not seem coherent that differences in treatment are not considered for these owners acting in good faith, regarding these municipal permits they were granted. This draft of the Decree does not include any reference to them; therefore, the legal situation of the constructions with permits equates with these other constructions without permits.

In conclusion, regarding the content of the draft, legalization or regulation of properties located on rural land is not incorporated; no legal novelty is provided to solve out the problem resulting from the lack of control of Public Administrations regarding the use of land; this law only complicates even further the current situation of this issue.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

NEW URBAN SCENE IN LA AXARQUIA

Written by Gustavo Calero Monereo on 30 June, 2011. Posted in conveyancing, developer, Headline, NON RESIDENT, Property law, property law, undeveloped land, URBAN LAW, urban plan. No Comments on NEW URBAN SCENE IN LA AXARQUIA

Complex urban planning in Andalucia: PGOU, LOUA & POT

Due to the urban complexity that most of the municipalities of La Axarquía are immersed because of the Spanish local elections held in May, the changes in the local governments could mean changes in the way of managing each municipality and in the solutions that such local governments could propose in view of the complex urban development in this area.

We have to take into account that, nowadays, most of the municipalities are working in the production and approval of their new General Plans for Urban Zoning (PGOU) to adapt them to the Urban Zoning Code of La Axarquía (LOUA) and to the Plan for Town Planning in La Axarquía (POT), and so as to offer a final solution to all those housing developments built upon non-urban areas as well as to the thousands of isolated buildings within each municipality.

Apart from the several actions carried out by the town halls, it is worth mentioning the announcement made by the Junta de Andalucía about the approval of a Decree to legalize the large number of houses in La Axarquía. Besides, the Junta de Andalucía has made an inventory about houses built upon non-urban areas and which is being sent to each of the town halls so that they could know the situation of all those mentioned houses.

The PGOU is the main instrument in the planning of each municipality and it provides the characteristics and nature of the area that comprises such municipal district. So, it is very important that those owners with properties built upon non-urban areas, whether it is an isolated house or a house within a development, appear before the municipal offices as soon as possible, preferably with a specialized lawyer, in order to study the situation of the houses and the possibilities of legalizing them or declaring them houses out of regulation.

It is worth mentioning all those housing developments partly or totally built upon non-urban areas, but with different situations in their basic infrastructures (lighting, roads, sewer systems, water, etc). In those cases, it is necessary that each Community of Owners or, if it is not established, one of their representatives, enquires in the town hall about the situation of the housing development and its possible inclusion in the new PGOU.

If we take into account that it seems that possible mid-term solutions and measures may arrive, it is important that owners ask and take part in such “regularization” process that will be born within each town hall, so as their property or housing development could be part of this new plan, or in order to find a solution for each conflict or situation.

Obviously, regularizing each house will have a charge for the owners, depending on their situation, but we think it is a “minor wrong” if this situation of legal insecurity upon many rustic properties comes to an end.

Nowadays, our legal firm, which represents some clients that have houses or are part of a housing development built upon non-urban areas, has already started to deal with several town halls about the situation and regularization proposals of their properties. It is important that the owners are the ones who look for solutions with the town halls.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)

CURB ON “FLOOR CLAUSES” IN MORTGAGE LOANS

Written by Gustavo Calero Monereo on 10 May, 2011. Posted in conveyancing, euribor, Headline, interest, judgment, mortgages, Property law. No Comments on CURB ON “FLOOR CLAUSES” IN MORTGAGE LOANS

On the 30 September 2010, Court no. 2 of Seville gave judgment declaring the “floor clause” introduced by the respondent entities Spanish bank BBVA, Saving Banks Cajamar and Caja de Ahorros de Galicia in the mortgage loan deeds formalised with them abusive and therefore null and void, for considering that the minimum threshold interest rates set by them are abusive and detrimental for the consumer.

Although the judgment has been appealed by the three financial entities mentioned, the Court has ordered the provisional application of the resolution. Therefore, as from 27 January 2011, they will not be able to include the said clause in their mortgage loans, and from 11 April, they will not be allowed to charge the clients with the difference between the minimum interest rate as per Euribor plus the interest rate agreed with the client, and the minimum threshold interest rate or “floor rate” set by the said bank entities in their mortgage loans.

The so called “floor clause” means that in times of low mortgage interest rates, such as the ones we have lived through and are living through at present, the client is committed to pay a set minimum interest rate, which means that even if interests go down, their mortgages cannot benefit from lower interest rates

According to ADICAE (Association of Banks, Saving Banks and Insurance Companies of Spain), in Spain, there are currently 3.8 million clients who have this “floor clause” included in their mortgage loans and have not been able to take advantage of lower mortgage interest rates over the last years. The said association considers that in 2010, Banks and Saving Banks obtained a revenue of 7,000 million euros thanks to these clauses. These results show the importance and relevance of this judgment.

Therefore, as from 11 April, the entities BBVA, Saving Banks Cajamar and Caja de Ahorros de Galicia are obliged to recalculate repayments in all loan agreements taking into account a variable interest rate according to the Euribor benchmark rate, plus the interest rate negotiated with the client, and not according to the minimum threshold interest rate or “floor rate” established in their mortgage loans. This means that, since the interest rates applicable will be lower, the monthly repayments of those clients who have a mortgage loan with any of these entities will decrease.

Commercial Court no. 11 of Madrid has currently admitted the biggest joint action filed in Spain against 45 bank entities for the application of these “floor clauses”. It is likely, that before the end of the year, we know if such a number of saving banks and banks have to follow the path of the other three mentioned, which will be the most logical and coherent outcome.

However, whichever the result, it is likely that this issue of “floor clauses” reaches the High Court, who will then be in charge of taking the definitive decision about these provisions being abusive or not.

In the meanwhile, I would advise you to check your mortgage loan deeds , so that you may see if you have benefited from this judgement and if from 11 March, your bank is applying the resolution.

We will keep you informed on new updates.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

MAKING A WILL IN SPAIN IS ESSENTIAL

Written by Gustavo Calero Monereo on 13 April, 2011. Posted in Featured, Headline, Herencias, Inheritance Tax, malaga, PROBATE LAW, taxes, wills. No Comments on MAKING A WILL IN SPAIN IS ESSENTIAL

Importance Spanish will for heirs of both residents and non-residents

According to our legal and professional experience, there are many reasons for advising our clients to sign a Will before a Notary Public in Spain with regard to their property in Spain.

You cannot imagine how complex it may be for the heirs of a deceased to formally take the assets situated in Spain (properties, current account deposits, insurances, company shares or stakes … etc). when the only Will available is the one made by the deceased in his/her country of origin, or even worse, when the deceased did not make a Will in his/her country of origin.

In order for the heirs to take the said assets when the Will has been granted in the decesased´s country of origin, the heirs must have a number of documents legalised in the said country. For example, if the decesased is British, documents such as the probate and the grant of probate, among others, are required in order to distribute and formally take the property of the deceased in Spain between the heirs, in accordance with the Will made in the deceased´s country of origin.

However, if the deceased had not even made a Will in his country of origin, the procedure turns out to be more complex, as the rules of intestacy in Spain would be the ones applicable. According to which, only the deceased´s descendants and his/her widow/er would have inheritance rights, and the consent of all the interested parties would be required.

Therefore, the importance of making a Will in Spain is based on:

1) Economic reasons: if you make a Will in Spain, the inheritance proceedings will be more economic for you heirs, as they will not have to apply for any documents in your country of origin.

2) Time saving: If you have not made a Will in Spain, it will take longer to obtain all the necessary documents; on the same line, in the absence of a Will on the deceased´s country of origin, the intestacy procedure in Spain will take several months.

3) Family reasons: Easier legal procedures make everything more agile and less stressing for the heirs.

To finish with, I must remind you that inheritance in Spain is subject to Inheritance Tax. Different regulations apply in each region. In Andalusia, there are a number of benefits and exemptions for a resident who dies in Andalusia, provided certain requirements are met. Therefore, residing in Andalusia (which differs from fiscal residency or from obtaining the residency card) can save a lot of money tax wise. I can assure you that I know of many people who have been living in Andalusia for a long time, and whose heirs will not be able to receive such Inheritance Tax benefits and exemptions for not having seeked professional advice.

In conclusion, if you have any assets in Spain, always make a Will and get professional advice. A professional will study your personal and family circumstances properly in order to draft a Will that suits your interests, minimising at the same time the tax implications for your heirs.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)

NEW STANCE ON DWELLINGS BUILT ON RUSTIC LAND IN LA AXARQUÍA

Written by Gustavo Calero Monereo on 16 March, 2011. Posted in fuera de ordenacion, Headline, Property law, undeveloped land, urban plan. No Comments on NEW STANCE ON DWELLINGS BUILT ON RUSTIC LAND IN LA AXARQUÍA

Legalizing process of rustic land Axarquía Málaga (houses without building license or with invalid building license)

In la Axarquía, as well as in many municipalities in Málaga and Andalucía, there are at present thousands of properties which are built on land not designated for construction. These properties have been built without any building permit whatsoever and no responsibility may be claimed as the criminal or administrative actions that would have applied, have lapsed. We refer to thousands of dwellings which will remain built for many years, and their use and enjoy will never change.

From a logical point of view, and why not mention it, from an ecological one, the most coherent thing to do, in these cases, would be to try to legalise them. This would imply setting minimum requirements for them to follow, and providing the dwellings with infrastructures, such as sewage systems, that would avoid damaging their surroundings, since regardless of whether they are legalised or not, they will remain occupied.

Regarding dwellings built on land not designated for construction, but where a building permit has been granted (those permits may be challenged and declared null at any time), we do not see the point in bringing hundreds of administrative and contentious actions to declare them void. As proceedings will take endless time to be settled, and whereas eventually a few orders may be enforced, some demolition orders will never be put into effect. In addition, it will affect many homeowners who will claim pecuniary liability to the Local Council, and also, in my view, to the Junta de Andalucía (Andalusian Regional Government).

However, given the current situation of insolvency of the government institutions and their tendency to delay proceedings, it will be very difficult for the homeowners to obtain compensation.

As we stated in our October article “Málaga, Axarquía and Urban Problems”, this situation has been reached due to a total lack of interest on the part of the Local Councils and the Junta de Andalucía, in the exercise of their duties in the last years, even when they were totally aware of the said irregularities.

And apart from all these consequences, it should also be added, the damage that starting hundreds of legal proceedings, with subsequent demolitions, and owners claiming compensation, etc, can do on residential tourism, mainly foreign, creating, thus, a situation of complete legal uncertainty. This kind of tourism and the economy of the area would be affected and probably driven to the wall.

Therefore, the decision of the Junta to approve a Decree in the next six months to legalise this situation of urban chaos, considering the starting point of the situation, is the most logical and coherent stance to adopt. And we think the cost “can be assumed” by the homeowners affected, as, at the end of the day, it will be to their own benefit, to the benefit of the government institutions involved, and on the ecological interest of the area where they are situated, it will also lead to the economic progress of this area.

We will follow this issue with expectation over the coming months. In any case, considering the circumstances, this change of stance of the Junta de Andalucía is a good piece of news.

Anyway, as everyone knows, when elections approach anything can happen.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)

BE CAREFUL, NON TAX RESIDENTS

Written by Gustavo Calero Monereo on 2 March, 2011. Posted in Featured, Headline, Income, NON RESIDENT, property law, taxes. No Comments on BE CAREFUL, NON TAX RESIDENTS

Presently, by the fall of prices on the property market, many owners sell their homes for a similar or lower price than the purchase price when they originally bought them, which the main result is that there is no capital gains or this is not that high on the sale of the property.

However, if these owners are non-resident tax in Spain, that is, if they pay taxes in another country, then the buyer has the legal obligation to withhold 3% of the purchase price and to pay it to the Tax Office, on account of the capital gain tax that the seller must pay for the gain on sale of his property. 18% is the tax rate that the Spanish Tax Authorities apply on the capital gain from the sale of a property.

If the seller has not obtained any capital gain or if the tax that he should pay for the gain is less than 3% retained by the buyer, the seller may request a refund of the whole amount or part of it

Well, in the moment that the Tax Office receives the request of the seller for the reimbursement of the income of 3% from the property sale, they firstly check whether the owner has submitted the form 210 –Income Tax Declaration for Non-residents when owning a property in Spain– (before 2008 it was the form 214), for the last 4 years prior to the sale of the property; in case he has not submitted it or he has not submitted any during these obligatory periods, the Tax Office demands the vendor to regularize the situation before returning anything.

In view of this requirement, the seller must submit and pay the corresponding tax due for every year that he has not submitted the form 210, with late payment interest and a financial penalty from the Tax Office for not fulfilling the obligation of submitting the form on time.

Because our experience tells us that many non-resident tax owners do not undertake the obligation of submitting the Form 210, we would recommend you to do it from this year. In case you would decide not do it now, you will probably have to do it later, paying a penalty as extra cost, and if it was your situation, an extra deadline in order the Tax Office to return the amount that the buyer withheld in the purchase of the property.

If you are trying to sell your property, and you have not submitted this tax during the last four years, we do recommend you to regularize the situation and submit the tax. This will prevent you a possible financial penalty from the Tax Office, because if you submit this form with no requirement from the Tax Office, that is voluntarily, you will not be sanctioned by the Tax Authorities.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

FIGURE OUT OF REGULATION AND CONSTRUCTION ON UNDEVELOPED LAND

Written by Gustavo Calero Monereo on 7 February, 2011. Posted in developer, fuera de ordenacion, Headline, malaga, Property law, undeveloped land, URBAN LAW, urban plan. No Comments on FIGURE OUT OF REGULATION AND CONSTRUCTION ON UNDEVELOPED LAND

Andalucian houses built out of regulation according to Town Hall´s urban law LOUA

Now that many municipalities in Málaga are approving their development plans in an attempt to regulate the urban chaos in relation to dwellings on undeveloped land, and to adapt those plans to the Law on Urban Planning of Andalusia (LOUA,) the obvious question is; what will happen to the irregular housing that cannot be legalized by the new urban plan adopted by each municipality?

A possible solution to these houses can be the designating them as homes “fuera de ordenación” (out of regulation), ie homes or buildings that do not satisfy the new municipality’s urban planning, therefore cannot be legalized, and it cannot be either asked any kind of responsibility to their owners or developers as any possible urban infraction has prescribed according to the LOUA or penal code, through the passage of over four years and five years respectively, since the buildings were finished.

Such classification of a property as “out of regulation” can be done by either the City Council or at the request of the owners, and entails certain limitations on the rights of the owners with respect to such property. Thus, the building can only undertake repairs work and maintenance for the strict conservation for the occupancy and use of such constructions, and such other works authorized under exceptional provisions of the Act. However, these properties can still be used by their owners, so that they can continue to enjoy their homes, do conservation work thereof and carry out any legal business on their property, acknowledging the existence of the above mentioned limitations in the property use and enjoyment but with the legal security that any legal liability can be required in the future because the housing has been declared by the City Council as out of regulation and, therefore, is now legally defined.

Given the numerous buildings that are not legalized in the Axarquia and over which there can not be imposed any liability, some municipalities are currently starting to open statement records of “out of regulation” in order to end up with this situation of legal uncertainty over these buildings that can not be legalized since they are located on undeveloped land according to the urban plan. The objective is also to give the owners legal protection letting them know what they can or cannot do on their properties but with the legal security that no responsibility will be claimed on them in the future regarding their properties. In fact our firm recently launched the first record of this type in one of the municipalities with more properties in this situation in La Axarquia, not having finished to this day.

According to the LOUA, the councils have the authority or power to define in their urban plans what can or can not be done on these out of regulation properties, so they can take this advantage of that power or authority to help solving the problem of all buildings that can not be legalized in the new general urban plan but over which there cannot be any imposed legal liability. Thus using their authority to help making this cataloging received positively among the affected property owners while helping to organize and regulate part of the chaos of the homes built on rural land, with the consequent benefit to the town Hall for new incomes and for the owners that will have legal security in their properties

Therefore, given the impossibility of legalizing the new urban plan on everything that has been built illegally, the legal definition of out of regulation may be of interest for the owner to give legal security to their property.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)

OCEAN VIEW PROPERTY, PROBABLY ANOTHER CASE OF PROPERTY FRAUD IN MALAGA

Written by Gustavo Calero Monereo on 16 December, 2010. Posted in developer, Featured, fraud, legal advice, malaga, property law. No Comments on OCEAN VIEW PROPERTY, PROBABLY ANOTHER CASE OF PROPERTY FRAUD IN MALAGA

Last Monday, the 13th of December, I read an article in the newspaper EL MUNDO in which they inform that about a hundred people from Northern Ireland were victims of a property fraud through the Ocean View Properties agency. It was supposed that the development company would build a housing estate in a plot located in Estepona (Malaga). Apparently fraud people made important payments on account of the purchase price in 2005 and 2006 for their future homes in Spain.

Concerning these off-plan property sales, directly from the developer (new property), apart from confirming whether the developer that sells is the owner of the buildable plot, and the relevant Town Hall has approved the urbanization project of this land, the buyer should request the immediate handing of the bank guarantee along with the interim payments that the buyer are going to carry, guaranteeing every payment for the building process until the granting of the purchase title deed. In this way, if the urbanization project may not be completed because of an administrative cause, because of the insolvency of the developer or any other cause non attributable to the buyer, then he can get back every payment made by enforcing this bank guarantee.

In this case, it is obvious that buyers and their solicitors did not require these bank guarantees to the developer. Now, the buyers should associate each other to force in the judicial proceedings, relying on a competent legal team that may advice them properly. It is essential to bring a lawsuit against them (civil action) or criminal charges (criminal action depending on whether it is considered a fraud or not) expeditiously so to call for the preventive seizure of all the goods that the developer may have, and all the administrators’ goods in any country, to study if the administrators have other companies opened so to attack all these goods.

When trying to get back money, the judicial proceedings is very long, so fraudsters or possible insolvents can hide or squander their patrimony and the trail of the money would be lost. The result of it may not guarantee the success.

Conclusion, if you are going to buy off-plan directly from the developer, make sure of who is the owner of the plot, of the urbanization project, and, specially, do not pay anything without receiving the corresponding bank guarantees for these interim payment until the granting of the purchase title deed. If you have signed a purchase private contract with a developer and you have not still the bank guarantees, it is time to require them, because the financial situation of the developer is complicated and, in short, you never know. Our advice is, if in doubt, you consult a solicitor in order him to analyze your situation.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

THE DEMOLITION OF THE BUILDINGS IN THE RUSTICS LANDS OF ANDALUCIA

Written by Gustavo Calero Monereo on 3 November, 2010. Posted in conveyancing, Featured, Property law. No Comments on THE DEMOLITION OF THE BUILDINGS IN THE RUSTICS LANDS OF ANDALUCIA

Do you own a Spanish property without a (valid) building license?

Following the news published recently in a local newspaper, the Provincial Courts of Jaén cancelled the demolition of a two storey house and its swimming pool that were built on rustic ground. This house had the circumstance that its grounds invade part of the bank of a river.

There are currently a series of penal judiciary procedures opened all over Andalucía for crimes against the zoning law due to houses built without license on common rural grounds, that is to say, grounds which lack specific protection.

It must be clearly stated that in a procedure for the prosecution of a crime against land planning, the sentence pronounced doesn’t necessary order the demolition of the illegal building. This is due to the fact that demolition is not a punishment held within the penal code in case the owner is found guilty for having started the building process without planning permission. Demolition is thus a compensating measure, a possibility for the jury to evaluate the circumstances of each case in question that will have to be explained once the sentence is pronounced.

Once we have established this, part of the jurisprudence establishes that not demolishing a building in a case in which the Council could have legalized this building by the administrative way; on those population nuclei built on rustic ground and constituted by numerous buildings that pay the common local tax, that have garbage pick up service, water, electricity, etc… that is to say: certain infrastructure with the appearance of a residential area; demolition of illegal buildings in this case would not apply in the court decision. This is due to the fact that it would not be logical nor understandable to reach a judiciary decision in which such an area with different constructions, since the objective of demolition within penal context is to protect and to make a rational use of the ground, little can be done to protect by demolishing one building when there are others around it, as it will not possible to totally recover that space left to its original rural status.

We could therefore conclude by saying that now a days among the multiple rustic areas with buildings without licences on them with the appearance of a residential area in themselves, he line that some sentences are following can be considered as more logic and coherent, since there is the impossibility to repair what was illegally built. This current situation is therefore the result of the Councils and the Andalusian Council in the neglect of their controlling functions on ground use for a long period of time, not having taken the appropriate measures in due time.

But let’s finally take into account that we are talking here about legal procedures against buildings that were not granted building permission. It is something very different to those buildings that were granted building permission despite wrongfully, in places where the General Building Planning would not allow them. These cases belong to the Litigious-Administrative jurisdiction. I will try to state the legal consequences to these cases in next article, although I assure you it won’t be an easy task.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

MALAGA, AXARQUÍA AND URBAN PROBLEMS.

Written by Gustavo Calero Monereo on 2 October, 2010. Posted in Featured, Property law. No Comments on MALAGA, AXARQUÍA AND URBAN PROBLEMS.

I recently read an article in Diario Sur talking about Alcaucín Town Hall. It is still bogged down with the properties built in non building lands.

Consequences arisen from the urban corruption existing in Alcaucin (Malaga) since 2009, has resulted in a lack of legal security for part of the owners and people who are interested in investing in a property around this area of Malaga, provoking, as main conclusion, an important loss on the buying and selling property market, and a horrible publicity abroad of our local institutions and our legal system as well, for a non response in view of the abuse competence of some Town Halls in urban matters and, in the permission of the Andalusian Government, who has looked the other way for many years while the many urban irregularities happened; of course cashing up thanks to taxes and prices for the usufruct and enjoyment of the properties and for asset transfers.

Some of the professionals that work in this area, we wonder why so many legal proceedings are opened where the owners turn out accused. Most of them are not responsible of this illegal urban activity, but they can be seriously affected.

From a legal point of view, most of these procedures would end into nothing because of the prescription of many of the charged urbanizing crimes and because of the possibility of regularization of buildings, as it has been stated by the doctrine. Passing of time in the resolution of these judiciary procedures only provokes an overextension of this chaotic situation.

I do agree in the fact that town halls should be meticulous in the fulfilment of urban rules and that the Andalusian Government must closely watch private as well as local building activities. However, I do not quite understand that there should be a series of judicial procedures opened against illegal urban licenses that have enjoyed a tacit acknowledgement for years due to lack of control; specially, when these acts have been carried out in such an evident way and for such a long period of time.

The intervention line that is being carried upon the misuses of non-urban ground, not only arrives late but it does not solve the problem, thus causing the situation to worsen by overextending the resolution to the problem within the eternal judiciary channels. In many of these procedures the solution will not only be the least adequate but it may not even be possible to re-establish the original status to the illegally urbanised ground, which would be the desired thing to be done in this last instance. All this without taking into account the patrimonial responsibility that this will mean to the city council already in great debt and what’s more, the nullity of the illegal local licenses as well as the prejudices that may arise among those property owners who were counting on the city council to achieve a building permission.

In such a time of chaotic urbanism and autonomic and local irresponsibility associated to periods of growth, it would have been logic to establish a strict action line to be followed from now on, being categorical to all the illegal behaviour and conduct, reaching a consensus on the different competent institutions with logic and coherence by the assumption of responsibility over these illegal acts from those truly responsible. There are always solutions and technical means to be applied if both parts are implied in it.

We finally hope that coherence finally imposes itself. However, if this long period of uncertainty were here to stay, the image of the real estate would be irreparably damaged and the efficacy of the public and professional institutions in question. It will be difficult to overcome this situation because of this feeling of judicial insecurity and chaos in the criteria due to the arbitrary decisions that weaken us all.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

Author: Gustavo Calero Monereo

DRAFT OF THE DECREE ON THE LEGALIZATION OF HOUSING ON NON-DEVELOPABLE LAND OF ANDALUSIAN REGIONAL GOVERNMENT

NEW URBAN SCENE IN LA AXARQUIA

CURB ON “FLOOR CLAUSES” IN MORTGAGE LOANS

MAKING A WILL IN SPAIN IS ESSENTIAL

NEW STANCE ON DWELLINGS BUILT ON RUSTIC LAND IN LA AXARQUÍA

BE CAREFUL, NON TAX RESIDENTS

FIGURE OUT OF REGULATION AND CONSTRUCTION ON UNDEVELOPED LAND

OCEAN VIEW PROPERTY, PROBABLY ANOTHER CASE OF PROPERTY FRAUD IN MALAGA

THE DEMOLITION OF THE BUILDINGS IN THE RUSTICS LANDS OF ANDALUCIA

MALAGA, AXARQUÍA AND URBAN PROBLEMS.

TORROX OFFICE

MALAGA OFFICE