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Roj: STS 2300/2016 – ECLI:ES:TS:2016:2300
Cendoj ID: 28079110012016100334
Body: Supreme Court. Civil Chamber.
Seat: Madrid
Section 1
Appeal No.: 810/2014
Decision No. 340/2016
Procedure: CIVIL
Judge Rapporteur: ANTONIO SALAS CARCELLER
Decision Type: Judgement

 

JUDGEMENT

In the City of Madrid, on the 24th of May 2016

This chamber has seen the extraordinary appeals for procedural infraction and annulment against the judgement given in Appeal by the Fifth Section of the Provincial Court of Las Palmas de Gran Canaria, as a result of the orders of ordinary trial no. 1320/09, brought before the Court of First Instance no. 2 of San Bartolomé de Tirajana; whose appeals were filed before the aforementioned Court by the legal representation of Anfi Sales, S.L. and Anfi Resorts, S.L., represented before this chamber by barrister of the courts Ramón Rodríguez Nogueira, also entered in as challenges; and the legal representation of Mr. Carlos and Mrs. Tarsila, represented by barrister of the courts Monsterrat Costa Jou.

The Judge-Rapporteur is Antonio Salas Carceller

FINDINGS OF FACT

FIRST. Barrister Montserrat Costa Jou, on behalf of Mr Carlos and Mrs Tarsila, filed an ordinary lawsuit against Anfi Sales, S.L. and Anfi Resorts, S.L., alleging the facts and legal bases that she considered applicable, ending by asking the Court to state a judgement, whereby the following is agreed to:

“A. The inadmissibility of the advance payments for the amounts paid by my clients to the respondents and the joint obligation of the co-respondents to repay those amounts to my clients in double.

“B. The nullification, or alternatively the termination, of the contract signed by the parties on 14 July 2001 (GD071410GA), as well as any other annexes to that contract.

“The respondents sentenced to returning, jointly, to my clients the following amounts plus the interest accrued since the filing of the lawsuit, with the express imposition of the costs to the respondent:

” 11,439 pounds sterling, corresponding to the amounts paid by way of the contract dated 14 July 2003, less the advance payments.

” 2,542 pounds sterling, corresponding to the doubled repayment for the payments made as advance payments upon the signing of the contract dated 14 July 2003 and prior to the period legally set for terminating the contract.

” 28,994.8 pounds sterling, corresponding to the doubled repayment of the advance payment made for transfer from a prior contract and which were in the possession of the respondents at the signing of the contract dated 14 July 2003.”

  1. The lawsuit having been processed, the legal representation of the respondents answered it, opposing as adversarial the facts and legal bases of the deduced claims that must be considered to conclude, requesting that,

“… this judgement whereby the lawsuit is totally dismissed, absolving my clients from the orders formulated against them, with the express imposition of the costs to the plaintiff.”

  1. After the corresponding procedural processes and the performance of the trial by the parties and admittance, the Magistrate-Judge of the Court of First Instance No. 2 of Bartolomé de Tirajana issued a ruling on 3 February 2011, whose operative part is as follows:

“I HEREBY RULE: That by dismissing the lawsuit presented by the legal representation of Tarsila and Carlos, I must and do absolve Anfi Sales and Anfi Resorts, S.L. from the requests formulated against them. The costs will be accrued in the manner stipulated in the seventh legal basis.”

SECOND. The legal representation of the plaintiff filed an appeal against this judgement and the appeal being heard, Section 5 of the Provincial Court of Las Palmas de Gran Canaria issued a ruling on 30 October 2013, whose ruling is as follows:

“That we must and do consider partially the appeal filed by the legal representation of Mrs. Tarsila and Mr. Carlos against the ruling stated by the Court of First Instance No. 2 of San Bartolomé de Tirajana on 3 February 2011 in the orders of Ordinary Trial No. 1320/2009, revoking part of that decision, and in its place, partially considering the lawsuit filed by Mrs. Tarsila and Mr. Carlos, we must and do sentence Anfi Sales, S.L. and Anfi Resorts, SL to pay the amount of £12,780.65 to the aforementioned plaintiffs, increased by two points from today’s decision; all of this is done without making an express pronouncement on the matter of costs in either instance.

THIRD. Barrister Monserrat [sic] Costa Jou, on behalf of Mr Carlos and Mrs Tarsila, filed an extraordinary appeal for procedural infraction and annulment, the former based on the following reasons: they filed an extraordinary appeal for procedural infraction based on two reasons: 1) Under Article 469.1.1 LEC (Civil Procedural Act), by infraction of Article 217 of the same law and by error in interpretation of Article 9 of Law 52/1998; and 2) Under Article 469.1.4 LEC for infraction of Article 24 EC.

For its part, the appeal for an annulment based on annulment interest is formulated by the infraction of the provisions of Articles 1.7 and 9 of Law 42/1998, as well as Article 6.3 CC (Civil Code), citing contradictory jurisprudence from Provincial Courts.

The representation of the respondents Anfi Sales S.L. and Anfi Resorts S.L. filed an appeal for annulment for a single reason that denounces the violation of the provisions of Article 11 of Law 49/1998.

FOURTH. This Chamber issued an order dated 9 September 2015, whereby it agreed to the admission of both appeals, as well as serving them to the respondent, Barrister Ramón Rodríguez Nogueira having been opposed to their consideration, on behalf of Anfi Resort S.L. and Anfi Sales S.L.

FIFTH. With neither party having requested the holding of a public hearing or this Court deems it necessary, the voting and ruling on the appeal was indicated for 3 May 2016.

LEGAL BASES

FIRST. Mr. Carlos and Mrs. Tarsila filed a lawsuit on 5 November 2009 against Anfi Sales S.L. and Anfi Resorts S.L. requesting the nullification and, secondarily, the termination of the contract signed between the parties known as a holiday association, as well as declare the impropriety of the advanced collection of the amounts as well as sentence the respondents to repay them in double.

The plaintiffs had signed a contract on 14 July 2003, whereupon they would acquire the right to make use of an apartment in the “Club Gran Anfi” establishment, with capacity for 4 persons, during the “Super Red” period.

The respondents opposed the claims of the lawsuit and dismissed the judgement of the first instance with the imposition of costs to the plaintiffs.

Those plaintiffs filed an appeal and the Provincial Court of Las Palmas de Gran Canaria (Section 5) issued a judgement on 30 October 2013, whereby the appeal was partially dismissed and also part of the lawsuit, sentencing Anfi Sales S.L. and Anfi Resorts S.L. to pay the plaintiffs the amount of 12,780.65 pounds to be credited since the transferor breached the prohibition on early collections.

The appeal judgement concludes that:

“Even where it may be certain that there was a breach or defective compliance with the duty of information and omission of the documentation that must be accompanied, as a reference in Arts. 8 and 9 of Law 42/1998, the legal consequence would not be the complete nullification of the contract, but rather its termination within the period of three months following its signing (Art. 10.2 of Law 42/98) … […] if false or wilfully harmful information has been supplied, … Action for nullification already expired, given that the lawsuit was filed on 5 November 2009, which is six years after the signing of the contract … […] Certainly, the company being appealed against breached the prohibition by transferring the time-share right  … admitting the early payment to a third party in this particular case would be an absurd insult to the limitation of advance payments outlawed therein…»

Both parties filed an appeal. The plaintiffs appeal due to procedural infraction and annulment, while the respondents appeal only on annulment.

Extraordinary appeal for procedural infraction and annulment filed by the plaintiffs

SECOND. The buyers Mrs. Tarsila and Mr. Carlos filed an extraordinary appeal for procedural infraction based on two reasons: 1) Under Article 469.1.1 LEC, by the infraction of Article 217 of the same law and 9 of Law 52/1998; and 2) Under Article 469.1.4 LEC for infraction of Article 24 EC.

The appellants pose the annulment appeal for a single reason in three sections:

  1. The legal consequences due to the lack of purpose, due to the absolute lack of definition of the right acquired by the buyers. They claim as doctrine that is being opposed that which follows the contested judgement, the doctrine of the rulings of the Provincial Court of Madrid, Section 18, dated 7 May 2009 and 1 February 2009, referring to tourist time-shares for floating systems, in which they reach the conclusion that the essential error in the purpose implies the nullification of the contract.
  2. Whether or not to consider the annexes to the contract as an integral part thereof, in order to have complied with the minimum reporting duty imposed by Articles 8 and 9 of Law 42/1998, which would base the request for nullification under Art. 1.7 of Law 42/1998 and Art. 6.3 of the Civil Code, in view of the minimum reporting requirements being neglected. Among others, the following judgements are cited:

– The judgement of 28 September 2012, from Section 4 of the Provincial Court of Las Palmas de Gran Canaria. The judgement appealed in annulment and which has been confirmed by order of inadmissibility in Appeal 567/2013.

– A judgement of 21 February 2013, from Section 4 of the Provincial Court of Las Palmas de Gran Canaria. A judgement that has been confirmed by Plenary Judgement, stated in Appeal No. 961/2013.

  1. The consideration made by the judgement on the duration of the regime, which contrasts with the provisions of Art. 3.1 of Law 42/98, on time-share real estate, deals with a complete nullification that may even be appreciated ex officio. The judgement of Section 4 of the Provincial Court of Las Palmas de Gran Canaria on 10 May 2013 is cited in this regard as a judgement that was resolved in a manner contrary to how the judgement being appealed has interpreted this standard.

THIRD. Since the appeal has been made by procedural infraction to the testing and valuation of circumstances that, if applicable, would give rise to the termination of the contract, while the appeal for annulment directly addresses the topics that affect the validity of that contract, which could give rise the declaration of its complete nullification, it is appropriate to first examine the latter.

Regarding the second issue set out in the annulment appeal, that which was already argued in the manner emphasised in the contested judgement must be repeated, although there would be a lack of information, that would not determine the nullification of full rights, but rather the ability to annul or terminate it (Article 10.2 Law 49/1998), having surpassed the period for exercising any of these actions.

The issues related to the purpose and duration of the contract are the ones that present greater complexity in relation to the action of complete nullification that is exercised under Article 1.7 of Law 49/1998. These issues are dealt with below, taking into account that this Chamber has already pronounced on them, resolving the discrepancies in interpretation that existed in the doctrine of the Provincial Courts. To that effect, the Chamber has stated (Full) Judgement No. 192/2016, of 29 March (Rec. 793/2014), in which the following considerations are made:

“A) Determination of the purpose. Article 1.1 of Law 42/1998, of 15 December, states that “the time-share right may be created as a limited real right or in accordance with the provisions of Section 6 of this article. To determine under which of these modalities the contract in question finds itself, it is appropriate to transcribe the content of Section 6. It says therein: “Leasing contracts for seasonal holiday properties that have a minimum duration of three years up to a maximum of fifty years, and in which the rents corresponding to some or all of the seasons under contract are paid in advance, will be subject to the provisions of this law, notwithstanding that which is stipulated in the Law on Urban Leases. These contracts must refer to a certain annual season that corresponds with a certain or determinable period within that season and a certain accommodation or one determinable by its generic conditions as long as the building or complex where the right is to be enjoyed is specified”…

In this case, as in the result of that judgement, not only does it lack any reference by the respondent Anfi Sales S.L. to the fact that the contract was subject to that leasing modality, but also clearly it may be deduced from its content that it does not accord with that legal provision since it “purchases” an “association right” to a club for the use of an apartment without setting the term. Excluding that leasing possibility, we would be faced with the creation of a limited real right -although the real or personal nature of the right transmitted is not specified in the contract, lacking the requirement of Article 9.1.2- for which it would be required to apply the need of determination contained in Article 9.1.3; with regards to the purpose, it must be a specific accommodation, with mention of its registry data and the time-share that is the purpose of its contracting, and with an indication of the days and times by which it starts and ends. Since the contract, in this case, does not meet these requirements, it is subject to the sanction of nullification contained in Article 1.7, according to which:

“The contract whereby any other real or personal right is created or transferred for a time greater than three years and related tot he use of one or more properties during a certain period or determinable period during the year, under this law it will be void of full right, making it mandatory to return to the buyer or transfer any rent or compensation paid, as well as compensate them for direct and indirect damages suffered”

This Chamber has already established as jurisprudence in Judgement 775/2015, of 15 January, and has reiterated in 460/2015, of 8 September, that:

“In the legal regime established by Law 42/1998, of 15 December, on time-share rights for real estate destined for tourist use, the lack of determination in the accommodations contract that constitutes its purpose may result in the nullification of that contract, as provided for in Article 1.7 in relation to 9.1.3 of that law”.

This doctrine must be maintained in this case in which, as in those considered in the aforementioned judgements, a lease has not been configured in the manner established in Article 1.6 as a personal time-share right; the only case in which it must be admitted -because the law thus permits- pertains to accommodations that “are determinable by their generic conditions”.

Therefore, we are faced with a case of nullification of full rights, as provided for in the aforementioned Article 1.7 of Law 42/1998.

The same full judgement establishes the following with regards to the duration of the contract:

«B) Duration. By configuring the contract with an indefinite duration, it does not comply with the provisions of Law 42/1998, which demands the setting of the time by which the right, or at least the duration of the regime, is established (Article 3). This Chamber has already ruled in this regard in Judgement 774/2014, of 15 January, which interprets the second transitional provision of Law 42/1998, after a systematic connection of its Sections 2 and 3, insofar that whomever should wish to “market shares not transferred as time-share rights (…) must create the regime with regards to the periods available with the requirements established in this law, including the one related to time, established in Article 3, Section 1, from which the breach of that provision gives rise to the nullification of full rights according to the provisions of Article 1.7.

In this regard, in order to verify how the legislative has wanted, ever since the entry into effect of the law, to have a certain duration, which generally will be linked to the duration of the regime, it is sufficient to resort to the standard contained in its Article 13, which, by regulating the right of the owner to terminate [the contract] due to failure to pay the services, establishes that “in order to carry out the resolution, the owner must deposit, on behalf of the holder of the right, the proportional part of the price corresponding to the time remaining until its termination”; a standard for whose application it is necessary to set a duration time…”.

Appeal for annulment filed by the respondents

FOURTH. The sole reason for the appeal lies in the lack of a legal prohibition with regards to advance deliveries made to a third-party fiduciary and not to the contracting entity, alleging an infraction of Article 11 of Law 49/1998.

As has been collected, among the most recent cases, Judgement No. 122/2016, of 3 March (Rec. 2043/2013), this Chamber has already made decisions on several occasions about this issue, and thus in (Full) Judgement No. 627/2015, of 20 November, has established, by interpreting Article 11 of Law 42/1998, that the prohibition that it contains, after the new Law  4/2012, extends expressly to delivery made to third parties, it must be understood with the same scope under the effect of the 1998 law, since “it suffices to take into account that the prohibition of advance payments during the withdrawal period is justified in the interest of the legislature by simplifying the exercise of the law, such that this withdrawal takes effect by the very manifestation of the wish of the contracting party without needing to recover any delivered amounts, whereby it eliminates the risk that such recovery does not produce or remain delayed…”

Article 9.1 of Directive 2008/122/EC, of 14 January, which repeals the previous 1994/47/EC, states that, “Member States shall ensure that in relation to time-share, long-term holiday product, and exchange contracts any advance payment, provision of guarantees, reservation of money on accounts, explicit acknowledgement of debt or any other consideration to the trader or to any third party by the consumer before the end of the withdrawal period according to Article 6 is prohibited”.

The express mention in Article 13 of the current Law 4/2012, of 6 July, on the prohibition of advance payments “on behalf of the business owner or a third party” does not entail anything new with respect to the previous regulation on the matter in the 1998 law, and none of it is stated in its Preamble -as would be logical if there were a substantial modification. However, they simply ultimately resolve any concerns that had arisen about the issue in practice, which makes it reasonable to consider it unjustified if one were to take into account that the correct interpretation of Article 11 of the 1998 Law, if attending to the true purpose of facilitating the withdrawal without needing to resort to any claim, was that the prohibition would affect both the receipt of amounts by the transferor and by a third party designated by the same, as certainly has been understood in the appealed judgement.

As a result, this appeal must be dismissed.

Consideration of the appeal by the plaintiffs. Consequences of the contract nullification.

FIFTH. With regards to the effects that would result from the contract nullification, once the respondents have complied with the provisioning by facilitating the enjoyment of the rights acquired by the plaintiffs for a period of six years, one must take into account what was resolved by this Chamber in (Full) Judgement No. 192/2016, of 29 March (Rec. 793/2014).

It says the following therein:

“It is true that Article 1.7 of Law 42/1998 (RCL 1998, 2916) establishes that, in case of nullification of full rights, the entirety of the amounts paid will be returned to the buyer. Regardless of the interpretation of that standard and its application to the case, one must consider the provisions of Article 3 of the Civil Code insofar that that interpretation must be made by attending primarily to its “spirit and purpose”. In the case of the aforementioned Article 1.7, it deals with holding harmless a contractor who, in good faith, was surprised by the content of a contract -normally an adhesion contract- that does not comply with legal prescriptions, but has not occurred as such in this event in which, as has been said, for eleven years the respondents have enjoyed the accommodations that the contract offered them and even signed a new one, which is why the repayment of amounts paid must not be complete, but rather proportional to the time that remained, taking into account the maximum legal duration of fifty years….”

Ultimately, one, in fact, cannot strip the time-share right of one of the parties from the rights conferred by the contract to then, later on, try to repay all of the amounts that had been delivered, whereby the timely liquidation would occur.

SIXTH. The plaintiffs requested in their lawsuit the return, as a result of this contract, of the following amounts:

  1. a) 11,439 pounds sterling corresponding to payments made for the contract of 14 July 2003.
  2. b) 2,542 pounds sterling corresponding to the double return for payments made as advances.
  3. c) 28,994.8 pounds sterling for the double return for payment made as advances by transfer from a previous contract.

It is true that Article 1.7 of Law 42/1998 establishes that, in case of nullification of full rights, the entirety of the amounts paid will be returned to the buyer. Regardless of the interpretation of that standard and its application to the case, one must consider the provisions of Article 3 of the Civil Code insofar that that interpretation must be made by attending primarily to its “spirit and purpose”. In the case of the aforementioned Article 1.7, it deals with holding harmless a contractor who, in good faith, was surprised by the content of a contract -normally an adhesion contract- that does not comply with legal prescriptions, but has not occurred as such in this event in which, as has been said, for six years the respondents have enjoyed the accommodations that the contract offered them, which is why the repayment of amounts paid must not be complete, but rather proportional to the time that remained, taking into account the maximum legal duration of fifty years.

On the amounts claimed, the following must be recognised: that of 11,439 pounds, 1,271 pounds, and 14,497.4 pounds, since without proper argument and justification, the transfer of amounts corresponding to a previous contract cannot be understood as constituting an advance payment.

Consequently, after deducting the amount corresponding to six years, the return proceeds to be the amount of 23,942.52 pounds plus 1,271 pounds for the double payment of the yearly amount.

SEVENTH. Having considered the appeal for annulment of the plaintiffs, it is not appropriate to sentence them to pay the costs (Articles 394 and 398 of the Civil Procedural Act), resulting in the return of the deposits. Since the lawsuit is being considered in part, neither is it appropriate to sentence them to pay the costs for the trial or the appeal.

The costs of the appeal for annulment filed by the respondents are imposed to them, with loss of the deposit created.

I HEREBY RULE

By everything put forth, in the name of the King, by the authority conferred by the Constitution, this Chamber has decided

  1. To consider the appeal for annulment filed by Mr Carlos and Mrs Tarsila against the judgement stated by the Provincial Court of Las Palmas (Section 5), dated 30 October 2013, in Appeal Proceedings No. 121/2012, arising from orders of Ordinary Trial No. 1320/2009 of the Court of First Instance of San Bartolomé de Tirajana. 2. To dismiss the appeal for annulment formulated against that judgement by Anfi Sales S.L. and Anfi Resort S.L. 3. To annul the contested judgement and partially consider the lawsuit filed by Mr Carlos and Mrs Tarsila against Anfi Sales S.L. and Anfi Resort S.L., declaring the nullification of the contract entered into between the parties on 14 July 2013. 4. Sentence Anfi Sales S.L. and Anfi Resort S.L. to pay the plaintiffs the amount of twenty-five thousand, two hundred thirteen pounds and fifty-two cents (25,213.52 pounds sterling), plus interest from the date the lawsuit was filed. 5. There is no reason to impose those costs caused in both instances or with respect to those caused by the appeal for annulment by the plaintiffs, with the return of the deposit made. 6. Sentence the appellants Anfi Sales S.L. and Anfi Resort S.L. to pay the costs resulting from their appeal for annulment with loss of the deposit made for its filing. Let the corresponding certification be issued to aforementioned Court with a return of the orders and appeal proceedings issued.

This decision shall be made known to the parties and inserted into case law.

Thus it is agreed and signed. Jose Antonio Seijas Quintana Antonio Salas Carceller Francisco Javier Arroyo Fiestas Eduardo Baena Ruiz Xavier O’Callaghan Muñoz


Posted on: 24th June 2016