[et_pb_section fb_built=”1″ admin_label=”Section-Article” module_class=”section-article” _builder_version=”4.18.0″ custom_margin=”0px|0px|0px|0px” custom_padding=”0px|0px|0px|0px” global_colors_info=”{}”][et_pb_row use_custom_gutter=”on” gutter_width=”1″ admin_label=”Ligne-Article” module_class=”ligne-article et_pb_row_fullwidth” _builder_version=”4.16″ width=”100%” width_tablet=”100%” width_phone=”” width_last_edited=”on|desktop” max_width=”100%” max_width_tablet=”100%” max_width_phone=”” max_width_last_edited=”on|desktop” custom_margin=”0px||0px” custom_padding=”0px||0px” make_fullwidth=”on” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”4.16″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text admin_label=”Texte-5 March 1996: the Generalitat tells the EUCC how to enforce the 1993 judgment” module_class=”txt-article” _builder_version=”4.27.7″ text_font=”||||||||” header_font=”||||||||” header_2_font=”||||||||” header_3_font=”||||||||” header_4_font=”||||||||” header_5_font=”||||||||” hover_enabled=”0″ global_colors_info=”{}” sticky_enabled=”0″]<\/p>\n
On 5 March 1996<\/span>, the Directorate-General for Urban Planning of the Generalitat de Catalunya issued a legal report at the request of the Planes del Rei Urban Development Conservation Entity (EUCC).<\/p>\n The EUCC wanted to know what steps it could take following the Falset Court judgment of 23 November 1993<\/span>, which had required Francisco Lebasque to formalise the free transfer of several assets in the development to Pratdip Town Council.<\/p>\n The report gives a precise answer: the proper course of action is not to ask the Town Council directly to take over those assets, but to apply to the Falset Court for enforcement of the 1993 judgment<\/span>.<\/p>\n The report recalls that, after the 1993 judgment, representatives of the EUCC wrote to Pratdip Town Council on 7 March and 10 October 1994<\/span>.<\/p>\n They asked the municipality to take over the works and installations concerned by the judgment by formalising the corresponding public deed.<\/p>\n According to the Generalitat\u2019s report, the Town Council had not responded to those requests<\/span> by the time the EUCC approached the Catalan administration in September 1995.<\/p>\n The Generalitat begins its analysis by recalling the principle laid down in Article 130 of Legislative Decree 1\/1990 of 12 July, which at that time consolidated the urban planning legislation applicable in Catalonia.<\/p>\n Under this principle, the sale or transfer of real property does not alter the planning restrictions and obligations attached to it: the new owner takes the place of the former owner in relation to commitments entered into with public authorities<\/span>.<\/p>\n The report also states that the developer is not released from the urban planning obligations that applied to him.<\/p>\n The Generalitat refers directly to the judgment delivered by the Court of First Instance in Falset on 23 November 1993.<\/p>\n It recalls that the decision requires Francisco Lebasque<\/span> to transfer to Pratdip Town Council the assets listed in the judgment: swimming pools, tennis courts, miniature golf course, well and pumps, roads, sewerage network, green areas and street lighting.<\/p>\n The report therefore confirms that the obligation established by the court rests on the owner of the assets, Francisco Lebasque.<\/p>\n This is one of the most important passages in the report.<\/p>\n The Generalitat considers that it was not for the EUCC to ask Pratdip Town Council to take over the assets and installations referred to in the judgment<\/span>.<\/p>\n The offer of transfer should have been made by their owner, since the right to dispose of those assets belongs to the holder of the property rights.<\/p>\n This analysis therefore adds an important clarification to the approaches made to the Town Council in 1994: the report does not conclude that the municipality was required to take over the assets simply because the EUCC requested it.<\/p>\n The Generalitat nevertheless notes that Francisco Lebasque had not complied with the obligation imposed on him by the 1993 judgment.<\/p>\n In those circumstances, it considers that the EUCC is entitled to seek enforcement of the court decision<\/span>.<\/p>\n The report also makes clear that the Generalitat itself cannot determine how that enforcement should be carried out, since this is a matter of civil law and therefore falls outside the competence of its urban planning legal advisory service.<\/p>\n The report relies on Article 919 of the Code of Civil Procedure then in force, under which enforcement of a final judgment must be sought before the judge or court that heard the case at first instance.<\/p>\n The conclusion is therefore clear: the EUCC must apply to the Court of First Instance in Falset for enforcement of the judgment of 23 November 1993<\/span>.<\/p>\n It is then for that court to determine the form and conditions under which the transfer of Francisco Lebasque\u2019s assets to Pratdip Town Council must be carried out by public deed.<\/p>\n The report dated 5 March 1996 is an important document for understanding what happened next in the proceedings concerning the infrastructure of Planas del Rey.<\/p>\n It does not state that Pratdip Town Council is required to take over the assets immediately simply because the EUCC asks it to do so. Rather, it establishes that the obligation to formalise the transfer rests with Francisco Lebasque<\/span> and that, in the absence of voluntary compliance, the EUCC must return to the Falset Court to have the judgment enforced.<\/p>\n The document therefore helps to distinguish more clearly the respective roles of the asset owner, the EUCC, the Town Council and the judicial authority in this process.<\/p>\n Jim – La Tribune de Planas<\/p>\n GENERALITAT DE CATALUNYA REPORT 027\/SCA\/1996<\/p>\n File: 277 LEGAL REPORT<\/p>\n On 22 September 1995, a letter was entered in the General Register of the Directorate-General for Urban Planning of the Department of Territorial Policy and Public Works under entry number 1288, in which a representative of the Planes del Rei Urban Development Conservation Entity, in the municipality of Pratdip, requested this Advisory Service to issue a legal report on the actions the entity could take in view of the facts set out below:<\/p>\n \u2014 On 23 November 1993, the Court of First Instance in Falset delivered judgment in lesser-value proceedings number 12\/90, brought at the request of the Planes del Rei Urban Development Conservation Entity against Mr Francisco Lebasque and against the Creditors\u2019 Committee in Francisco Lebasque\u2019s suspension-of-payments proceedings. That judgment declared Mr Francisco Lebasque\u2019s obligation 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, as well as the street lighting, in favour of Pratdip Town Council.<\/p>\n \u2014 On 7 March 1994 and 10 October 1994, the representatives of the Planes del Rei Urban Development Conservation Entity asked Pratdip Town Council to proceed with the takeover of the aforementioned works and installations by formalising the corresponding public deed.<\/p>\n \u2014 To date, Pratdip Town Council has not responded to the request of the Urban Development Conservation Entity, despite the contents of the judgment referred to above.<\/p>\n In relation to the matter raised, it is first appropriate to recall the provisions of Article 130 of Legislative Decree 1\/1990 of 12 July, approving the consolidated text of the legal provisions then in force in Catalonia in the field of urban planning:<\/p>\n \u201cThe disposal of property shall not alter the position of its owner with regard to the restrictions and obligations established by this Law or imposed, pursuant to it, by acts implementing its provisions, and the purchaser shall be subrogated to the position of the previous owner in respect of the commitments entered into by the latter with public bodies concerning urban development and construction.\u201d<\/p>\n This provision enshrines the principle of real subrogation, as a consequence of the statutory nature of real property ownership. Thus, the disposal of a property does not alter its legal status, and the purchaser is subrogated to the rights and obligations of the transferor, including transfer obligations.<\/p>\n However, the developer is not released from the urban planning obligations to which he was subject. This is made clear by the judgment delivered by the Court of First Instance in Falset, which imposes on the developer, Mr Francisco Lebasque, the obligation to transfer to Pratdip Town Council the assets listed in the operative part of that decision.<\/p>\n Accordingly, it was not for the Urban Development Conservation Entity to request that Pratdip Town Council take over the assets and installations covered by the judgment. That offer of transfer should have been made by their owner.<\/p>\n This follows from the content of the right of ownership which, in accordance with Article 348 of the Civil Code, includes, among other powers, the power to dispose of the assets concerned.<\/p>\n Nevertheless, in view of the foregoing and given that, in the present case, the owner of the assets and installations has not complied with the obligation imposed by the aforementioned judgment, the Urban Development Conservation Entity is entitled to seek enforcement of the declaration contained in its operative part.<\/p>\n As regards how and in what form the judgment of the Court of First Instance in Falset should be enforced, it should be noted that, since this is a matter of civil law, this Advisory Service cannot rule on it, as it falls outside the scope of its powers, which concern administrative and urban planning law.<\/p>\n However, it should be recalled that Article 919 of the Code of Civil Procedure provides that:<\/p>\n \u201cOnce a judgment has become final, it shall be enforced, always at the request of a party, by the judge or court that heard the matter at first instance.\u201d<\/p>\n
\nTwo requests sent to the Town Council in 1994<\/h2>\n
\nUrban planning obligations remain attached to the property<\/h2>\n
\nThe 1993 judgment imposes an obligation on Francisco Lebasque<\/h2>\n
\nIt was not for the EUCC to make the offer of transfer<\/h2>\n
\nThe EUCC can, however, seek enforcement of the judgment<\/h2>\n
\nThe Generalitat refers the EUCC back to the Falset Court<\/h2>\n
\nA document that clarifies the legal route to follow<\/h2>\n
\nTranslation of the original document<\/h3>\n
\nDepartment of Territorial Policy and Public Works
\nDirectorate-General for Urban Planning
\nSubdirectorate-General for Urban Planning Action<\/p>\n
\nInterested party: Planes de Rei Urban Development Conservation Entity
\nMunicipality: Pratdip<\/p>\n