# Villa purchase Pool issue Murcia Spain



## DistingExpat (12 mo ago)

Buying villa, Murcia region , now about 4 weeks from completion, solicitor picked up issue re swimming pool.
Current owners bought villa new about 18 years ago, pool installed by developer allegedly ,(Polaris) , at the outset on the development.
Apparently no licence can be found as developer allegedly applied for licences en mass and many were not assigned correctly.
So, no licence paperwork for pool nor registered in deeds/ escritura , however , strangely the cadastre does show pool on diagram.
My solicitor suggested the pool issue can be resolved to protect me legally now and in the future with an architects ‘antiquary’ certificate, and then it being registered at land registry prior to purchase. -Although it is Not a licence.
My questions:-
1/ I know this is a common issue but do you think that this resolution is satisfactory? And would be sufficient to prevent a ‘fill the pool in’ demand in the future.?
2/ if this is not a satisfactory resolution in your opinion and you would not go ahead, then is a pool , currently without a licence or land registry registration , sufficient grounds for the return of the 10% deposit if I were to cancel the purchase? The Estate Agent contract is silent on the grounds for return of deposit, except for not completing in a certain timescale. That maybe standard for sales contracts, not sure…..
Thankyou for your input in advance for any thoughts /advice/ or personal experience.


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## snikpoh (Nov 19, 2007)

In my opinion, get the current owners to legalise it as a condition of sale.


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## DistingExpat (12 mo ago)

snikpoh said:


> In my opinion, get the current owners to legalise it as a condition of sale.


Thankyou for your response much appreciated. The architect certificate and land registry change and addition of the pool will be paid by the vendors and done before purchase.
would you be happy that?- And call that legalisation. ?
Not holding anyones comment as gospel just very grateful for peoples inputs , thoughts, and experiences .


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## Relyat (Sep 29, 2013)

Personal experience. 
Identical circumstances to yours. 
Certificate Antiquary supplied, register updated, total cost to vendor approx 750 Euro. All good, everyone happy and sale progressed as expected. 
Subsequently the dwelling was sold again without issue.


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## DistingExpat (12 mo ago)

Relyat said:


> Personal experience.
> Identical circumstances to yours.
> Certificate Antiquary supplied, register updated, total cost to vendor approx 750 Euro. All good, everyone happy and sale progressed as expected.
> Subsequently the dwelling was sold again without issue.


Thankyou for taking the time to reply . Much appreciated


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## The Skipper (Nov 26, 2014)

DistingExpat said:


> Buying villa, Murcia region , now about 4 weeks from completion, solicitor picked up issue re swimming pool.
> Current owners bought villa new about 18 years ago, pool installed by developer allegedly ,(Polaris) , at the outset on the development.
> Apparently no licence can be found as developer allegedly applied for licences en mass and many were not assigned correctly.
> So, no licence paperwork for pool nor registered in deeds/ escritura , however , strangely the cadastre does show pool on diagram.
> ...


I think that each autonomous community has its own rules but in Valencia a "Certificado de Antigüedad" issued by a qualified architect certifying that a building is more than 15 years old is a protection against any action for a breach of planning rules, providing that the local town hall has not in the past opened a file on any infraction. It is worth asking the local town hall for a "certificado de no infración urbanistica" which will make it doubly sure that there is no problem with the property.


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## DistingExpat (12 mo ago)

The Skipper said:


> I think that each autonomous community has its own rules but in Valencia a "Certificado de Antigüedad" issued by a qualified architect certifying that a building is more than 15 years old is a protection against any action for a breach of planning rules, providing that the local town hall has not in the past opened a file on any infraction. It is worth asking the local town hall for a "certificado de no infración urbanistica" which will make it doubly sure that there is no problem with the property.


I have been told now that there could be a delay of a couple of months asking for the certificate of no infraction you mention, and that it may focus ‘their eyes’ on the non licence issue
. I am therefore erring on the side of asking for the pool to be fully licensed prior to purchase .-As, I am concerned now that if I go ahead then subsequently try to get a licence and they turn it down I am snookered ….
If the vendors sort it fine.
If the vendors don’t go with the plan I am not sure about whether the deposit of 10% would be returned though even though what is being sold is in part illegal! , , these gremlins of course and wrinkles with legality only appear at a late stage in the buying process as vendors/solicitors start providing the necessary paperwork, or lack of, near the end.
What are peoples thoughts on deposit recovery on a house with illegal/non licenced pool ?
I am happy to wait for a reasonable period if it can be legalised with a licence though…just trying to establish my position legally


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## Overandout (Nov 10, 2012)

DistingExpat said:


> I have been told now that there could be a delay of a couple of months asking for the certificate of no infraction you mention, and that it may focus ‘their eyes’ on the non licence issue
> . I am therefore erring on the side of asking for the pool to be fully licensed prior to purchase .-As, I am concerned now that if I go ahead then subsequently try to get a licence and they turn it down I am snookered ….
> If the vendors sort it fine.
> If the vendors don’t go with the plan I am not sure about whether the deposit of 10% would be returned though even though what is being sold is in part illegal! , , these gremlins of course and wrinkles with legality only appear at a late stage in the buying process as vendors/solicitors start providing the necessary paperwork, or lack of, near the end.
> ...


With all respect, you are asking for legal advice to a forum of "laymen" which may or may not include lawyers, and withgout having provided any documentation for review.

I'm not suggesting that you share the contractual documents on an open forum by the way, you need to share those with your lawyer.

I would be thinking of these considerations:

1) Who wrote the pre-contract agreement (contrato de arras)? If it was someone employed by the vendor, you're probably in trouble.
2) What does it say about the pool? If it doesn't mention it, you're probably in trouble.
3) How far are you prepared to take things to get your money back? Even if the contrato de arras is in your favour, the vendor is unlikely to be persuaded by your argument. Your lawyer may have more luck, but in Spain you have to be prepared to go all the way to court to get a judgement (and then again to get a judge to force the other party to comply with the original sentence).


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## DistingExpat (12 mo ago)

I


Overandout said:


> With all respect, you are asking for legal advice to a forum of "laymen" which may or may not include lawyers, and withgout having provided any documentation for review.
> 
> I'm not suggesting that you share the contractual documents on an open forum by the way, you need to share those with your lawyer.
> 
> ...


I Thankyou very much for your reply. And note your points. They are useful. I am in discussions with lawyers but ask only for additional inputs as I know there are some people in the forum with experience and considerable knowledge in this area.
The only contract signed is with the EA which is very sparse on detail about deposit refunds except completion dates.
I posted the latest in the thread primarily I suppose because if the EA states purchase includes say xyz (but when it comes down to it is xy and a non licensed z) non licensed / possibly viewed therefore as illegal , are these grounds for refund if it comes down to it. I hasten to add that if things are sorted legally prior then I am more than happy to proceed. I feel as the buyer though I shouldn’t be the one burdened with the costs and worry ,and am just trying to establish if I can reclaim the deposit should it come to it . As I said the nitty gritty does not surface until the latter stages of the process unfortunately …


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## Overandout (Nov 10, 2012)

EA = Estate Agent?

I speak by personal experience that the agent will not be responsible for any infringement of the contracts signed between the buyer and the seller. Legally they are not party to the contracts (they act only as agents) and cannot bue sued under them.

To whom have you paid the deposit? I can't see how the seller can have your money if you have only signed an agreement with the agent.

I do speak from personal experience by the way. I took both the Estate Agent and the seller to court for breach of contract when I bought my current flat. My case against the agent was thrown out and I was ordered to pay their costs because they argued (succesfully) that my contract with them was a contract to represent me as a buyer infront of the seller, but they were not liable for, or party to the sale agreement signed between the two buyer and seller as a result of their representation. They had not breeched the agent contract that I had signed with them.

My case against the seller was upheld (they appealled and lost) but they were not ordered to pay my costs.

In short, the sentence said that I was right and that I should be compensated by the seller for the part breach, but once I paid my own legal fees and those of the Estate Agent my "victory" was more moral than economic!

I was happy though because although I wasn't actually compensated for the loss I suffered, the seller lost a lot more than they thought they were gaining by cheating me out of part of the sale.


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## DistingExpat (12 mo ago)

Overandout said:


> EA = Estate Agent?
> 
> I speak by personal experience that the agent will not be responsible for any infringement of the contracts signed between the buyer and the seller. Legally they are not party to the contracts (they act only as agents) and cannot bue sued under them.
> 
> ...


Sorry to hear your tale.
The only monies I have paid is at this stage is just to the EA(Estate Agent) as per normal practice as a 10% deposit. Nothing between vendor and myself at this stage.


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## Overandout (Nov 10, 2012)

Normal practice is to pay the deposit to the seller with the associated "contrato de arras". The only money that normally goes to the agent is their fees.

I hope you have a very good contract with the EA if they are handling 10% of the purchase price through their organisation.


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## snikpoh (Nov 19, 2007)

DistingExpat said:


> Sorry to hear your tale.
> The only monies I have paid is at this stage is just to the EA(Estate Agent) as per normal practice as a 10% deposit. Nothing between vendor and myself at this stage.


I would certainly NOT pay any estate agent. Any deposit would go via my lawyer/conveyancer. 

Estate Agents fees will then be paid upon completion.


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## Localizer (Jun 23, 2016)

You should ask your Estate Agent exactly where your monies are at this time - hopefully they have not passed them onto the vendor.......but, in my opinion and experience monies should only ever be with a solicitor & Estate Agents only ever paid on completion of the purchase/sale process.
We have come across some Estate Agents who claim to also be able to act a a Gestor for both parties in a transaction - something to run away from in my opinion.


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## Lynn R (Feb 21, 2014)

I have bought two properties and sold one in Spain. In all of these transactions the 10% deposit has not been paid until the buyer's lawyer has completed the necessary checks, and it has then been paid by the buyer's lawyer directly to the vendor (never being made via the estate agent). When I bought the first property I did pay a small reservation deposit to the estate agent to have the property taken off the market, but definitely not the whole 10%.


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## The Skipper (Nov 26, 2014)

DistingExpat said:


> I have been told now that there could be a delay of a couple of months asking for the certificate of no infraction you mention, and that it may focus ‘their eyes’ on the non licence issue
> . I am therefore erring on the side of asking for the pool to be fully licensed prior to purchase .-As, I am concerned now that if I go ahead then subsequently try to get a licence and they turn it down I am snookered ….
> If the vendors sort it fine.
> If the vendors don’t go with the plan I am not sure about whether the deposit of 10% would be returned though even though what is being sold is in part illegal! , , these gremlins of course and wrinkles with legality only appear at a late stage in the buying process as vendors/solicitors start providing the necessary paperwork, or lack of, near the end.
> ...


I am very surprised to hear that you have paid a 10% deposit to the estate agent. That is definitely not normal practice! It is fairly common to pay a reserve deposit, around €3,000, to the vendor in return for the property being taken off the market while legal checks are done. The 10% deposit is usually paid to the vendor (not the estate agent) upon signing the contract and after the buyer is satisfied that the paperwork is all in order. I think you should consult a lawyer before going any further. The pool may not be a problem if it is an old construction and the town hall has not initiated any action for building without a licence. Each autonomous community has its own rules but, for example, in Valencia any construction built more than 15 years ago, and not to date subject to town hall action, will not be at risk of demolition if an architect certifies its age (Certificado de Antiguedad). As I say, you need proper legal advice.


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## DistingExpat (12 mo ago)

The Skipper said:


> I am very surprised to hear that you have paid a 10% deposit to the estate agent. That is definitely not normal practice! It is fairly common to pay a reserve deposit, around €3,000, to the vendor in return for the property being taken off the market while legal checks are done. The 10% deposit is usually paid to the vendor (not the estate agent) upon signing the contract and after the buyer is satisfied that the paperwork is all in order. I think you should consult a lawyer before going any further. The pool may not be a problem if it is an old construction and the town hall has not initiated any action for building without a licence. Each autonomous community has its own rules but, for example, in Valencia any construction built more than 15 years ago, and not to date subject to town hall action, will not be at risk of demolition if an architect certifies its age (Certificado de Antiguedad). As I say, you need proper legal advice.


Thankyou for your inputs .


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