Historic Supreme Court ruling: Malaga city council ordered to return land it expropriated from private company 30 years ago
The Supreme Court's ruling argues that the city council has not used the land for the public purpose that justified its purchase
The Supreme Court has issued a landmark ruling that establishes a judicial precedent and obliges Malaga city council to return a plot of land it expropriated 30 years ago to its original owners. According to the court, the city council never used the land for the purpose that justified its compulsory purchase by the local government.
The ruling, to which SUR has had access, refers to a plot of 3,428 square metres located on Calle El Gordito, next to Avenida Virgen de Belén, which is used as a car park and for a street market.
In the 1983 Plan General, this land was marked for expropriation for the construction of an educational facility. The city council approved the expropriation dossier in 1994. The construction of a school on the site was maintained in the general urban development plan (PGOU) of 1997.
In 2007, the company that originally owned the land, Inmuebles Portillo, requested the return of the site because the city council had not yet allocated it to the aforementioned educational facility. However, the municipal urban planning department rejected the request, which was then unsuccessfully appealed by the private owners in the courts. The city council then argued that it had not been able to build a school because of an underground high-voltage line, so it opted to modify the use of the space in the new PGOU of 2011, in which it granted it the qualification of public facility.
In 2020, the company demanded the return of the site, once again arguing that it had the right to do so since the city council had not used the land as agreed for many years. The city council objected and the company again lodged an appeal in the courts, which was initially rejected by a ruling of the High Court of Justice of Andalucía (TSJA).
However, the perseverance of the private company, as encouraged by lawyer Juan Ramón Fernández-Canivell, led it to appeal the ruling to the Supreme Court, which has now issued a new ruling in which it agrees with the private owners. In its ruling, the Supreme Court states that the right of the previous owners to recover the land prevails because more than ten years have passed "without even the execution of the aforementioned social facility having begun, nor the new designated social use having been implemented in any way".
For the Supreme Court, the fact that the use of the site was changed from educational to social use "cannot imply a permanent and unconditional shield against the right of reversion". Furthermore, the Supreme Court has rejected the city council's argument that it wanted to equate the public car park that it set up on the land between 2006 and 2007 with the condition of a public facility.
The company that owned the site will have to return the money to the city council but can ask for it to be expropriated again at a much higher price
The ruling upholds the appeal of Inmuebles Portillo and orders "all the necessary procedures" so that the city council can return the land to this company. However, in order to do so, the company will have to reimburse the municipal coffers the amount paid by the urban planning department for the expropriation, adjusted for inflation in line with CPI. This could amount to around 108,000 euros.
The land, however, will still be classified as a public facility, so the company could force the city council to expropriate it again, although asking for a much higher amount of money than that which will be returned. This is precisely one of the fears of the city council - that an "absurd situation" could arise in which the land would have to be expropriated again under the planning regulations, since, sooner or later, in order to comply with the urban standards assigned to each sector (social facilities, road infrastructure and green spaces), the land must be made available for public use or service, as stated in a previous TSJA ruling.
However, this situation is more than likely and it could create a precedent with the Supreme Court establishing the doctrine. This ruling could also jeopardise the city council's project to develop, by concession to companies, a complex of offices, shops and a hotel on the land of Cortijo de Torres, for year-round use. This change in the purpose for which the land was expropriated 30 years ago - to host Feria de Málaga, which will remain there regardless of the project - could be used by the previous owners to claim reversion.
