On 29 October 2001, the Court of First Instance in Falset issued an order in judicial enforcement proceedings 195/2001, brought by the Urban Development Conservation Entity of Les Planes del Rey (EUCC).
The purpose of the order was to enforce the final judgment of 23 November 1993, which had required Francisco Lebasque to formalise, by public deed, the free transfer of several assets in the development to Pratdip Town Council.
Eight years later, since that formalisation had still not taken place, the court applied Article 708 of the Code of Civil Procedure and deemed the declaration of intent that Francisco Lebasque should have made himself to have been given.
Enforcement proceedings brought by the EUCC
The EUCC of Les Planes del Rey applied to the court for enforcement of the 1993 judgment against Francisco Lebasque and the Creditors’ Committee.
The court verified that the entity had the necessary legal capacity and representation to act and that the application met the requirements laid down by the Code of Civil Procedure.
It also found that the 1993 judgment constituted an enforceable title and that the measures sought were consistent with the nature and content of that judicial decision.
The 1993 judgment had still not been enforced
In its order, the court recalls that the final judgment of 23 November 1993 had ordered Francisco Lebasque to execute a public deed for the free transfer of several assets in Planas del Rey in favour of Pratdip Town Council.
The document states that, as of 29 October 2001, that obligation had still not been fulfilled.
The court was therefore faced with the absence of the declaration of intent that Francisco Lebasque had been judicially required to make.
Article 708 allows the court to substitute for that declaration
The order relies on Article 708 of the Code of Civil Procedure.
This provision states that when a final judicial decision orders a person to make a declaration of intent and that person fails to do so within the legal time limit, the court may deem that declaration to have been made, provided that the essential elements of the legal transaction have already been determined.
The court considers that this is precisely the situation here: the 1993 judgment had already identified the parties, the free nature of the transfer and the assets concerned.
The assets concerned by the transfer
The order repeats the list of assets already set out in the 1993 judgment:
- the Olympic-size swimming pool and the smaller swimming pool, together with all corresponding services;
- the five tennis courts;
- the miniature golf course;
- the well with its pumps;
- the roads;
- the sewerage network;
- all land forming the green areas, together with the existing planting;
- street lighting.
The transfer is to be made free of charge in favour of Pratdip Town Council.
The court deems the declaration of intent to have been made
In the operative part of the order, the court expressly states that the declaration of intent that Francisco Lebasque was required to make under the 1993 judgment is deemed to have been made.
The court therefore substitutes for the declaration that the developer had failed to formalise himself.
This decision marks an important legal step, as it allows the formalisation of the transfer to continue without depending on any further personal intervention by Francisco Lebasque.
Registration with the Land Registry must follow
The order also provides that, once the decision becomes final, a warrant must be sent to the Falset Land Registry so that the requested entries can be made.
The court also requests that an address for Francisco Lebasque be provided so that the necessary notifications can be served.
The decision of 29 October 2001 should therefore not be presented as a simple general declaration concerning ownership of the infrastructure. It is a concrete measure to enforce the 1993 judgment, intended to allow the legal and land-registration formalisation of the transfer to continue.
A further stage in a procedure that had begun years earlier
The chronology now becomes clearer.
In 1993, the court had required Francisco Lebasque to execute the public deed of transfer. In 1996, the Generalitat had told the EUCC that it needed to return to the Falset Court to seek enforcement of that judgment. On 29 October 2001, the court finally put that mechanism into effect by substituting for the developer’s declaration of intent.
The next issue then becomes the registration of the transfer and its administrative consequences, which appear in the documents from the following years.
Jim – La Tribune de Planas
Translation of the original document
COURT OF FIRST INSTANCE No. 1 OF FALSET
Judicial enforcement proceedings 195/2001 – Section C
Claimant: URBAN DEVELOPMENT CONSERVATION ENTITY OF LES PLANES DEL REY
Defendants: FRANCISCO LEBASQUE and CREDITORS’ COMMITTEE
RECORD
In Falset, on 29 October 2001.
I, the undersigned acting Court Secretary, draw up this record to state that Procurator Mr JOSEP MARIA BLADE BRU, acting in the name and on behalf of the URBAN DEVELOPMENT CONSERVATION ENTITY OF LES PLANES DEL REY, has submitted an application seeking the opening of judicial enforcement proceedings against FRANCISCO LEBASQUE and the CREDITORS’ COMMITTEE, together with the corresponding documents.
I hereby report this. So recorded.
ORDER
Judge: Ms VICTORIA GALLEGO MARTÍNEZ
Place: Falset
Date: 29 October 2001
BACKGROUND
SOLE. — Procurator Mr JOSEP MARIA BLADE BRU, acting in the name and on behalf of the URBAN DEVELOPMENT CONSERVATION ENTITY OF LES PLANES DEL REY, submitted an application seeking the opening of enforcement proceedings against FRANCISCO LEBASQUE and the CREDITORS’ COMMITTEE, on the basis of the following judicial decision:
Nature and date of the decision: judgment of 23 November 1993.
Proceedings in which it was delivered: lesser-value proceedings 12/90.
Enforcing party: URBAN DEVELOPMENT CONSERVATION ENTITY OF LES PLANES DEL REY.
Parties against whom enforcement is sought: FRANCISCO LEBASQUE and CREDITORS’ COMMITTEE.
LEGAL GROUNDS
FIRST. — Having examined the foregoing application, it appears from the information and documents provided that the enforcing party satisfies the requirements of legal capacity, representation and standing before the court, in accordance with Articles 6, 7, 23, 31 and 538 of Law 1/2000 on Civil Procedure.
SECOND. — Likewise, in view of the claims set out in the application, this court has the necessary jurisdiction and subject-matter competence to hear the matter, in accordance with Articles 36, 45 and 545 of the aforementioned procedural law, and it also has territorial jurisdiction.
THIRD. — The title submitted is enforceable pursuant to Article 517.2.1 of the Code of Civil Procedure.
FOURTH. — The application complies with the requirements laid down in Article 549 of the Code of Civil Procedure and is accompanied by the documents required by Article 550. Pursuant to Article 551 of the same law, the procedural conditions and requirements are satisfied, the enforceable title contains no formal defect, and the enforcement measures requested are consistent with its nature and content. Enforcement should therefore be ordered on the terms sought.
FIFTH. — Pursuant to Article 708 of the Code of Civil Procedure, where a final judicial or arbitral decision orders a person to make a declaration of intent and the twenty-day period provided for in Article 548 has elapsed without that declaration having been made by the party against whom enforcement is sought, the court shall issue an order deeming that declaration of intent to have been made, provided that the essential elements of the legal transaction have already been determined.
In the present case, by final judgment of 23 November 1993, Mr Francisco Lebasque was ordered to execute a public deed for the free transfer of the following assets: the Olympic-size swimming pool and the smaller swimming pool with all corresponding services; the five tennis courts; the miniature golf course; the well with the pumps; the roads; the sewerage network; all land forming the green areas with the existing planting; and street lighting, in favour of Pratdip Town Council.
Since that obligation has not been fulfilled to date and the essential elements of the transaction have been determined, it is appropriate, pursuant to the aforementioned article, to deem the declaration of intent that he was ordered to make to have been made.
OPERATIVE PART
THE DECLARATION OF INTENT IS DEEMED TO HAVE BEEN MADE which Mr FRANCISCO LEBASQUE was required to make pursuant to the final judgment of 23 November 1993, consisting of the execution of a public deed for the free transfer of the following assets:
- the Olympic-size swimming pool and the smaller swimming pool with all corresponding services;
- the five tennis courts;
- the miniature golf course;
- the well with the pumps;
- the roads;
- the sewerage network;
- all land forming the green areas with the existing planting;
- and street lighting;
in favour of Pratdip Town Council.
As the address of the party against whom enforcement is sought, Mr Lebasque, is unknown, Procurator Mr Blade is requested to provide an address for that party for notification purposes.
Once this decision has become final, a certified copy shall be issued and a warrant shall be sent to the Falset Land Registry so that the requested entries may be made. Those documents shall be delivered to the procurator for the enforcing party so that he may ensure their implementation.
So ordered and signed by Ms Victoria Gallego Martínez, Judge of the Court of First Instance of Falset. So recorded.
2001-10-29-proc%C3%A9dure-execution-titres-judiciaires-falset-195-2001
