EJECUCIÓN DE SENTENCIAS EN MATERIA URBANÍSTICA, DEMOLICIÓN Y TERCEROS ADQUIRENTES DE BUENA FE. EL CASO DE LA ANULACIÓN DE LICENCIAS.

Abstract

This paper takes a critical look at Supreme Court doctrine on the execution of development rulings, particularly rulings annulling development permits. As a general rule, case law prescribes demolition of the building in such cases, even if there are third-party purchasers in good faith. The presence of such purchasers is not regarded as grounds for its being legally impossible to execute the ruling as issued, and the injured parties are referred to alternative channels (e.g., claims for government financial liability) to defend their property rights. First, the paper refutes the Supreme Court's arguments in such cases. The paper maintains that the rule of public confidence in the registration authorities is not being interpreted in accordance with the current function of the Property Registry in development. Furthermore, the paper argues, such an interpretation violates the rule of protection under legitimate confidence; the buildings had been issued with presumably legal administrative permits and had been entered in the Property Registry, where all development encumbrances with real efficacy must be recorded. The rule of legal subrogation does not justify making third-party purchasers put up with the demolition of their home, because all development duties had been fulfilled, as proved by the fact that the permits were given. Second, the paper clearly explains that this doctrine violates the property right recognised in article 33 of the Spanish Constitution, interpreted pursuant to European Human Rights Court case law, because the procedural facet of the right is not respected. The paper also points out the inefficacy of the alternative channels of protection the Supreme Court proposes, particularly the channel of government financial liability, which fails to meet the minimum requirements for satisfying third-party purchasers' property right and right to effective judicial protection. The paper gives other arguments as well, showing how illegal developments that have no permit at all are accorded more-favourable legal and jurisprudential treatment and demonstrating how in the civil and criminal jurisdictions the presence of third-party purchasers in good faith constitutes grounds for the legal impossibility of executing the rulings as issued. As a solution, the paper proposes that the existence of third-party purchasers in good faith constitutes, as a general rule, grounds for the legal impossibility of executing such rulings as written, without prejudice of execution by substitution where possible, by means of the appropriate indemnity for the individual in whose favour the ruling was given. Exceptions from this rule would be made in cases of more-serious development illegalities and cases involving other public interests, such as environmental protection, public property and the historic or artistic heritage. In these cases, demolition would be in order, but any thirdparty purchasers in good faith would have to receive indemnities at the same time.