Sareb & Olga Urbana’s Small Creditors Await “In Tempo” Court Ruling

2 December 2016 – El Mundo

The small creditors of Olga Urbana, the bankrupt property developer responsible for the In Tempo skyscraper in Benidorm, are continuing their battle with Sareb regarding the future of the controversial building.

As the company’s main creditor, the bad bank is looking to be awarded ownership of the iconic block and whereby recover some of the €100 million that it is owed by the development company; meanwhile, a group of creditors, comprising the construction company Kono; the former administrator of the bankrupt company, Isidro Bononat; the architect Robert Pérez Guerras, and the owners of one of the homes sold, Laura and María Pelayo, are trying to stop Sareb’s plans and avoid the entity from being first in line to collect its debt, given that such an arrangement would prevent them (and all of the other creditors) from recovering any funds.

Their objective is to force Sareb to get to be back of the queue when it comes to collecting its debt, given that the company was the administrator of Olga Urbana, and therefore, all of the business management duties lay with the bad bank.

Commercial Court number one in Alicante, which is instructing Olga Urbana’s bankruptcy proceedings, will have to take the final decision in this regard.

If the judge considers that Sareb was the administrator of Olga Urbana, then its loan will be classified as subordinated in the bankruptcy ranking, and therefore, Sareb would be one of the last entities to recover its funds. Furthermore, it would not be allowed to foreclose the property via the fast track, and so the small creditors would be able to recover their debts first; however, if the judge ends up ruling that Sareb was not the administrator of Olga Urbana, then the bad bank would have free rein to hold onto In Tempo (which has an appraisal value of €90 million), sell it and offset some of the liabilities that are currently weighing it down.

The conflict is now only pending the final ruling. The hearing was held at the end of October and the parties have presented their findings.

The small creditors insist that since the end of 2009, the construction work was supervised and led by Caixa Galicia (subsequently called Abanca) and then by Sareb (December 2012), when it took on a loan amounting to €103 million that Abanca had granted to Olga Urbana to build the tallest residential tower in Spain.

In parallel, Sareb has filed a claim against the Public Prosecutor’s Office regarding the existence of alleged irregularities in the management of Olga Urbana, citing that “economic harm” has been caused amounting to €23 million.

Sareb argues that, amongst the irregularities identified, it has found “alleged diversion of funds and company links between the owners and administrators of Olga Urbana and some of its own contractors and suppliers. (…).

Original story: El Mundo (by F. D. G.)

Translation: Carmel Drake

FCC Wins Legal Ruling Against Blackstone & Goldman Sachs

1 December 2016 – Expansión

A judge from the Commercial Court in Barcelona has dismissed the lawsuit filed by GSO, one of the funds owned by Blackstone, and by Goldman Sachs against the legal agreement approved for the refinancing of FCC‘s debt. As a result of the agreement, the construction company had managed to refinance a tranche of its debt (€1,350 million) at a significant discount (but GSO and Goldmans opposed the deal).

Although the refinancing was backed by 93% of FCC’s creditors, Blackstone and Goldman Sachs opposed the operation and appealed to the courts for damages caused amounting to around €295 million. The judge has now rejected their claim, which cannot be appealed to a higher court.

In January 2015, the Commercial Court of Barcelona validated the judicial approval, which allowed the Spanish construction company to apply a discount and reduce the cost of a tranche of its corporate debt amounting to €1,350 million.

The law firm Linklaters advised FCC in the financial restructuring process and has defended the interests of the construction group against the lawsuit filed by the funds. Uría also acted on behalf of the banks (Bankia, BBVA and CaixaBank), who participated in the lawsuit as a party affected by the appeal, whilst a lawyer from Jones Day defended the interests of GSO and Goldman Sachs.

93% of the banking syndicate accepted the new financing conditions, which basically involved accepting a discount of 15% through the repayment of debt amounting to €900 million using €765 million raised during the company’s most recent capital increase. The outstanding loan balance, around €450 million, is being repaid at (an interest rate of) 5%.

The opposing creditors included overseas investment funds such as Blackstone (GSO) and credit institutions such as Burlington and Ice Focus. The foreign banks included Goldmans, Barclays, Credit Suisse and Merrill Lynch, amongst others. GSO and Goldmans ended up taking the case to court, but the judge has ruled against them.

The claimants tried to link the lawsuit in Barcelona with an appeal in London where another group of FCC creditors has filed a case for the early repayment of their investment through the issue of convertible bonds amounting to €450 million because they considered that the Spanish company had breached one of the suspensive clauses of the contract relating to the non-payment of debt (default). Blackstone (through GSO Capital) was one of the London-based claimants. Given the legal protected afforded to bondholders in London, FCC was obliged to suspend the process to convert bonds amounting to €32.75 million.

In the ruling in Spain, the judge in Barcelona rejected the existence of a link between the resolution regarding the early execution of the bonds and the validity of the restructuring of FCC’s debt.

Original story: Expansión (by C. Morán and G. Trindade)

Translation: Carmel Drake

Värde Given Green Light To Buy 40% Of La Finca Global Assets

14 November 2016 – Real Estate Press

In August, a judge suspended the sale of part of Procisa to the fund Värde, due to a family dispute, which left the operation up in the air. Now, the precautionary measures have just been lifted and the BOE has published its proposal for the carve out of the firm into three companies, which will allow the definitive sale to go ahead.

The agreement carves out Procisa into three companies: La Finca Global Assets, containing the office assets; La Finca Promociones y Conciertos Inmobiliarios, containing the residential assets; and La Finca Somosaguas Golf. Sources close to the operation indicate that this is the final step in the process for the agreement with Värde to be signed.

The new company that owns the office assets will be converted into a Socimi. For the time being, the consideration paid for the operation will not be revealed. Meanwhile, Procisa, founded by the late Luis García Cereceda, is being led by the second generation of the same family, in the form of Susana García Cereceda.

The new Socimi’s main asset is the La Finca business park in Pozuelo, constructed alongside the luxury residential urbanisation. The company contains 20 buildings, of which 16 are offices and the rest are used for social and commercial purposes. Tenants at the site include companies such as Microsoft, Orange and Accenture. The Hotel AC La Finca is also located there. This is one of the most sought-after business parks in Madrid, with an occupancy rate of almost 100%, according to market sources. The future Socimi will manage an office surface area covering 227,000 m2, which includes other office properties in addition to the complex in Pozuelo.

Original story: Real Estate Press

Translation: Carmel Drake

Setback For Sareb: Suspension Of “In Tempo” Foreclosure

24 October 2016 – El Mundo

The soap opera involving In Tempo, the tallest residential building in Spain, continues. And the latest episode represents a real setback for Sareb, the main creditor of Olga Urbana, the company that went bankrupt after constructing the famous skyscraper in Benidorm.

Commercial Court number 1 in Alicante, which is handling Olga Urbana’s bankruptcy, has suspended the foreclosure of the property, which, in theory, was going to be awarded to Sareb, after it submitted the only and highest bid, amounting to €58.5 million. The judge has ruled in favour of the appeals submitted by Olga Urbana’s smaller creditors against the aspirations of the bad bank, which had been hoping to take over the building after it spent the summer contending that it had submitted the only official bid.

Nevertheless, according to the ruling dated 13 October, the magistrate considers that In Tempo cannot be awarded until the bankruptcy incidents that are affecting the process have been resolved. As soon as firm rulings have been issued regarding these incidents, the foreclosure will be approved, but not before. This represents a serious setback for Sareb: it had planned to foreclose the 190m tall building and then resell it,  whereby recovering some or all of its debt, which amounts to €108 million in total.

The bad bank will now have to wait until the bankruptcy incidents have been legally resolved. The claims have been filed by Olga Urbana’s small creditors, who consider that the liquidation plan would be harmful for them, given that, in their opinion, they would not recover any of their debt; these companies maintain that Sareb should not hold preferential creditor status, which gives it the right to recover its debt first.

According to these creditors (which include the construction company Kono, the arquitect Robert Pérez Guerras and the former administrator of Olga Urbana, Isidre Boronat), Sareb was an administrator of Olga Urbana and therefore, is responsible for the creditor bankruptcy of the company, which went bust at the end of 2014 with liabilities amounting to €137 million.

The creditors argue that the bad bank should be the last party to recover its money (…). In this way, the small creditors would recover their money before Sareb.

Given that this question has not been decided yet, the judge handling the bankruptcy has opted to wait for clarification as to whether Sareb is a preferential creditor or not, because a premature foreclosure could affect the interests of the other creditors. Meanwhile, Sareb maintains that the foreclosure of the building, which has been valued at €90 million, forms part of the liquidation plan, and would not be harmful to the other creditors.

Original story: El Mundo (by F. D. G.)

Translation: Carmel Drake

Valdebebas’ Legal Problems: The End Is In Sight

21 September 2016 – El Mundo

The capital’s residential sector has endured several months of uncertainty, awaiting the ruling from the Supreme Court (TS) regarding the appeals filed against the express review of Madrid’s Urban Planning General Plan, undertaken by the Town Hall of Madrid during Ana Botella’s mandate.

The ruling, which the Supreme Court finally published on Tuesday, validates the legality of the PGOUM and means that urban development can now resume in the capital with a sound legal base. The main beneficiary of this ruling is the area of Valdebebas, affected by a first instance judgement from the Dispute Tribunal number 24 in Madrid, which declared the economic urban planning project null and void in July.

As a result of this ruling, the Town Hall notified the Valdebebas Compensation Board at the beginning of August that “on criteria of prudence”, it would suspend the granting of all new construction permits until it was aware of the meaning of the ruling from the Supreme Court. This setback represented the latest obstacle in a long list of legal proceedings that Valdebebas has been involved in since 2012.

According to sources, this legal uncertainty and the questions regarding the meaning of the ruling from the Supreme Court have paralysed some important land purchase operations – they have been delayed until the contents of the ruling are known. Now, and after hearing the ruling from the Supreme Court, the Valdebebas Compensation Board believes that normality will return.

In this sense, according to a statement, the Board will request the Town Hall of Madrid for “its support to restore the urban planning instruments (that were recently cancelled) as soon as possible, so as to be able to offer all of the legal guarantees necessary to neighbours, cooperatives and property developers”. The Board says “that it does not see any reason for the Town Hall to maintain its recent stance of suspending the processing and granting of construction licences”.

“It is time to implement solutions and we are going to urgently seek the necessary collaboration with the Town Hall”, said Jorge Serrano, manager of the Valdebebas Compensation Board.

“Today we are all celebrating the support for the decisions and developments made and for the opportunities being presented to continue to respond in a normalised and sustainable way to the growing residential demand that Madrid is experiencing at the moment”, he added.

The ruling has partially upheld some of the appeals, annulling the Transitory Disposition of the Agreement dated 1 August 2013, which sought to provide retroactive effects, but has limited its annulling effects exclusively to three urban planning projects that were carried out following the ruling from the Supreme Court on 28 September 2012 and until the resolution to approve the general plan was agreed on 1 August 2013.

According to an explanation provided by the Compensation Board in a note, in the case of Valdebebas, the ruling affects only the construction licence granted in 2012 for plot 168 (Residencial Adhara), which has been cancelled, although that does not have any practical impact given that the building on that land is covered by a subsequent licence granted in 2014.

Original story: El Mundo (by Luis M. De Ciria)

Translation: Carmel Drake

Constitutional Court Suspends Tax On Empty Homes

4 May 2016 – Expansión

The Constitutional Court (TC) has suspended three laws approved by the Catalan Parliament, after they were appealed by the Government at the end of April. The laws in question are: the law that taxes empty homes, the local government law and the law for equality between men and women. The appeals have been accepted for processing, which means that the laws themselves have been temporarily suspended. Nevertheless, the acceptance for processing and the temporary suspension do not represent a ruling of any kind regarding the outcome of the appeal.

According to the acting Justice Minister, Rafael Catalá, who spoke at a press conference following the Council of Ministers meeting held on 22 April, the Government is challenging the law that establishes a tax on empty homes because that taxable event is already taxed under the current system for financing local governments, which provides for surcharges of up to 50% under IBI. (…)

The appeal against this Catalan law is surprising if we consider the fact that the Stability Program, which the Government has just submitted to Brussels, praises this law as one of the measures that the regional Governments are using to try to guarantee revenues “such as the tax on empty homes and the tax on tourist accommodation”, it says.

Original story: Expansión

Translation: Carmel Drake

Valdebebas: Supreme Court Ruling Undermines Construction Plans

28 March 2016 – El Confidencial

Madrid’s High Court of Justice (TSJM) has dealt another fatal blow to the PAU real estate developments of Ciudad Aeroportuaria and Parque Valdebebas, the area in the north of the capital, where around 12,000 homes are expected to be built. According to a ruling on 4 March, the Administrative Litigation Division has partially accepted the appeal filed by the Association for Responsible Urban Development and has declared null and void the Special Land Sub-division Plan.

The decision by the First Section of the TSJM’s Administrative Litigation Division, chaired by Francisco Javier Canabal, overthrows the approval agreed by the Town Hall of Madrid on 30 October 2014, which modified the detailed plan APE 16.11 for the Ciudad Aeroportuaria and Parque Valdebebas. Although the Town Hall, now chaired by Manuela Carmena, the Community of Madrid, led by Cristina Cifuentes, and the Valdebebas Compensation Board called for the dismissal of the appeal presented in February 2015, the fact is that the ruling calls into question the urban development once again even though it had already been approved by the various administrations.

The plaintiffs allege that the Special Plan, dated 30 October 2014, modified the buildability of the area to include a large shopping centre in the development, with the allocation of space amounting to 145,794 m2 and an annex to it, measuring 36,488 m2 for other tertiary use. The Court emphasised that the Association “was right” when it said that this plan “modifies the structural organisation”, since land transformation operations inherently require an appropriate relationship between public space and collective amenities, and population density. (…).

The Town Hall and Community of Madrid must now decide whether to submit an appeal against this decision, a position that is difficult to adopt given that the new heads of Ahora Madrid and the PP in the aforementioned institutions have inherited a lawsuit fought by their predecessors, Ana Botella and Ignacio González. Moreover, they should take into account that in May the resolution is expected of a previous appeal against improprieties conducted by the Town Hall of Madrid, with the correction of the General Urban Plan (PGOU) approved in August 2013, an emergency action through which the Town Hall corrected the legality of Valdebebas, which had been suspended months earlier, following a ruling issued by the Supreme Court in September 2012.

Pryconsa, in question

But, the factor that calls everything into question, above all, are the plans of Pryconsa, which in December 2015, purchased 14 plots of land from the Valdebebas Compensation Board for €56.7 million. It acquired 92,000 m2 of buildable land, where it plans to build between 900 and 1,000 social housing properties (VPPL). Pryconsa paid just over approximately €600/m2 for the land, a price that is significantly below the €800/m2 that the Compensation Board obtained for one of the VPPL plots that it put up for auction after the summer and which was sold to the cooperative Esta Gestión 100, backed by the architect Enrique Toboada.

That operation ate up the last residential land assets owned by the Compensation Board and practically used up all of the land allocated to social housing in this urban development, given that now less than 5,000 m2 of land remains available. Moreover, following the transaction, only one third of the residential land is available in this area. The plots awarded are located next to one of the main squares in the new neighbourhood, close to the future shopping centre and JOYFE school, whose land also formed part of the assets sold by the Compensation Board, and where construction work is expected to begin soon.

Following the TSJM’s decision, all of these plans have been thrown back up in the air, a real setback for the developers that have bought land in this area of Madrid, located to the south of La Moraleja neighbourhood and to the north of the IFEMA exhibition grounds.

Original story: El Confidencial (by Agustín Marco)

Translation: Carmel Drake

High Court Repeals Andalucían Anti-Eviction Law

27 May 2015 – Expansión

The temporary expropriation by banks of homes in the process of eviction is unconstitutional. That was the ruling issued by the High Court (HC) following its in-depth analysis of the controversial decree law governing the Social Function of Housing, approved by the Government of Andalucía in June 2013, which was challenged by the Central Government.

Until the HC suspended this law, as a precautionary measure, 121 expropriation demands were filed, over a three-year period. The law was later reissued, although without any significant changes

According to the ruling, articles 1.3 and 53.1 of the regional law have been annulled. Previously, those articles imposed on the owner of houses “the duty to effectively use property for the residential purposes provided for by the law”, since the essential content of the rights of ownership pervade; an area “prohibited” for the decree law of the autonomous community. This law does not affect individuals.

For the same reason, the ruling issued by the HC declares the imposition of fines on financial entities that own uninhabited homes to be unconstitutional. To date, the Andalucían Government has imposed fines on various banks – including Popular for €5.8 million and BBVA for €1.6 million – for not putting empty subsidised (VPO) homes at the disposal of the municipal registries for claimants.

Encroachment of competencies

Alongside this ruling, the HC considers that the regional legislation deals with the state duties provided for by the Constitution, such as “coordinating the planning of economic activity”, whereby nullifying the second additional provision of the decree law “aimed at ensuring the right to adequate housing”.

The ruling also explains that “it constitutes a significant obstacle for the effectiveness of the measures taken by the central Government”, which issued legislation that provided for the possibility of suspending the introduction and promoting the creation of a social fund containing the properties owned by the entities to facilitate their lease to evicted persons.

In this sense, it is worth noting the agreement of disparate legal figures regarding the same reality – the suspension of the introduction of state legislation and the expropriation of the use under the regional legislation – “makes the joint application difficult”.

The HC also advises all of the regions that the State should determine “the extent of the public intervention” and indicate “certain guidelines in the mortgage market”, and should do so in such a way that “it is compatible with the proper functioning of that sector”.

As a result, this “prevents” the regions from “adopting provisions that affect this market in a more intense way”.

Original story: Expansión (by Lidia Velasco)

Translation: Carmel Drake

New European Setback For Spanish Mortgage Law

14 May 2015 – Cinco Días

The European court considers that the legal period granted to challenge evictions (under Spanish legislation) was illegal.

The ruling is just one of half a dozen negative sentences from the EU regarding mortgages.

The European Justice system has again called into question Spain’s legislation regarding mortgages. A ruling published yesterday by Maciej Spunzar, the attorney general of the European Union’s Court of Justice, considers that (the legislation) “is not reasonable” and that the period and way in which the mortgage reform permitted those affected by evictions to oppose foreclosure on the basis of the application of abusive clauses, contravenes EU regulations.

That possibility, to paralyse eviction proceedings arguing that they are based on an illegal clause, did not exist in Spain and was one of the pillars of the mortgage reform that the Government supported in 2013 when adapting Spanish legislation to EU law.

That is what the European Court demanded in a key ruling, which preceded another preliminary sentence similar to the one published yesterday. These are the basis of the final judgements that, in 80% of cases, the institution issues with the same findings a few months later.

That mortgage reform, which came into effect on 15 May 2013, established that any new people affected by an eviction would have a period of 10 days to oppose it from the date of notification.

However, for mortgage foreclosure processes already underway, the regulation established a transitory provision, which obliged all interested parties to oppose the measure within a period of one month following the publication of the law in the Official State Gazette (BOE), i.e. no later than 15 June 2013.

According to the letter issued by the Court of Justice yesterday, the problem is that the EU directive on abusive clauses “precludes any national provision, like this one in Spain”.

Although it considers the period of one month to be sufficient, “what causes problems is precisely the fact that the period started from the day after the publication of Law 1/2013 in the BOE, when the parties involved in the foreclosure processes had not been notified”, detailed the document.

The European ruling responds to a question raised by the Judge of First Instance nº4 in Martorell, involving two people subject to a mortgage foreclosure by BBVA, who logged their opposition to the eviction on 17 June 2013, i.e. two days after the period expired. The affected parties complain that the aforementioned limit violated their EU rights.

The fact that they were given one month without being notified directly “made it impossible or too difficult to exercise the rights granted to consumers” and generated “a high degree of legal uncertainty, unadmissible in the field of consumer protection”, argued the attorney general of the European Court.

“The period was not sufficient to (allow affected parties to) prepare and lodge an effective appeal”, insists the general attorney, underlining the importance of procedures in which consumers risk losing their properties in an irreversible way.

A definitive decision in this sense would have consequences for the “hundreds of thousands (of people)” affected by the foreclosure procedures resulting from the approval of the mortgage reform. The Court considers that they should have been notified about the period, as well as about the options that they had to oppose (the decision).

Original story: Cinco Días (by J.P.C.)

Translation: Carmel Drake

Martinsa Loses Battle With Jove & Fails To Convince Its Banks

12 February 2015 – Expansión

No options left / The Supreme Court dismisses the appeal lodged by the real estate company, which is also failing to reach an agreement with its creditors

The real estate company Martinsa Fadesa received a slap in the face yesterday as the Supreme Court rejected its latest appeal in the legal battle against Fadesa’s former managers, Antonio de la Morena and Manuel Jove.

The Supreme Court was the last legal option for Fernando Martín (pictured above) in his attempt to get Jove and De la Morena to compensate Martinsa with €1,576 million for allegedly falsifying Fadesa’s valuations prior to its purchase by Martinsa in 2007.

Following the rulings against the plaintiff by the Commercial Court, the Provincial Court of La Coruña and now the Supreme Court, the real estate company is left without any legal options. It could request the referral of the case to the Constitutional Court, but that is something that judicial sources deem unlikely.

This failure comes at a very delicate time for the real estate company, just a few days before the period for reaching a new agreement with its creditors comes to an end. In the proposal to its creditors, Martinsa (which has an equity deficit of €4,500 million) had included the possibility of cleaning up the company with the €1,576 million that it hoped to receive from Manuel Jove and share some of the money with its creditors. Now, the company will not only receive that amount, but the judge has order that it cover the legal costs of the trial, which lasted for almost four years. In total, Martina may be forced to pay more than €40 million as a result.

The creditors

In this context, the deadline imposed by the judge in La Coruña for the creditors of the real estate company to join the payment plan will expire on 26 February. The proposed plan includes a significant debt forgiveness clause (“quita”) for some of the more than €6,000 million that it owes.

In addition to sharing out the compensation expected from Jove, the proposal includes a number of other improvements, but they are not sufficient for the creditor banks, which have been trying to reach an agreement with Martín for months.

Amongst the discrepancies between Martinsa and its creditors is a mismatch of up to 70% regarding the valuation of assets. Faced with this situation, the entities, including Popular, CaixaBank, Abanca and Sareb, amongst others, will not sign up to the agreement and so the judge in charge of the case will have no choice but to initiate the company’s liquidation plan. This process will be “long and complex” due to the huge volumes of plots, with a variety of different uses and locations, and the fact that many of them are in very early stages of development.

Original story: Expansión (by R. Ruiz and S. Arancibia)

Translation: Carmel Drake