Óscar Gómez Monasterio
The Court of First Instance number 3 of Marbella has declared "the absolute nullity of the rental contracts" of the terraces that Puerto Banús has been charging for more than 30 years to the establishments located in the area, and states that these spaces belong to the Town Hall, as requested by the owners of the businesses, represented by the law firm Balms Abogados.
The judgement accepts the lawsuits of the establishments, and therefore the company Puerto José Banús, S.A. must refrain from demanding any rent or amount from the entrepeneurs for the occupation of the "disputed terraces".
Balms Abogados have expressed their satisfaction at achieving "the absolute nullity of the lease contracts and the recognition that these are public domain lands, therefore Puerto Banús cannot charge for their use and occupation, all this after more than three years of administrative and judicial struggle. "Finally justice has been done against an entity that has been charging rents for more than 30 years for a space that, as the sentence says, belongs to Marbella´s Town Hall".
The ruling refers specifically to the premises located in Muelle Ribera, and there are still two other similar proceedings, also led by Balms Abogados, one for Calle X and the other for Muelle Benabolá.
The ruling recognises that the land for the use of which Puerto José Banús SA was charging a lease is public, and that it has been accredited in various ways. The judgment states specifically that "it must be concluded that the urban classification of the terraces described above, located in Puerto Banús (Marbella), in the area known as Muelle Ribera, zone N2, is a municipal public road, of public use and domain, as it results from the General Urban Development Plan of Marbella from the year 1986 in force in Marbella, approved in 2007, and as stated by the two municipal architects of the Urban Development Discipline Service of the Marbella Town Hall, ratifying the reports issued by them on 21 February 2007 and 18 December 2020, respectively".
Taking into account the above facts and the law in this regard, the judgment states that they cannot be the subject of a private contract, but only, if applicable, of an administrative concession, and, of course, they are not owned by the defendant Puerto José Banús, S.A., and therefore, by application of the law, the defendant Puerto José Banús, S.A. is not entitled to use them, therefore determining, by application of art. 1.261 of the Civil Code and the jurisprudential doctrine relating to the same, the absolute nullity of the lease contracts on such terraces or land.
In addition, the Court also refers to the Agreement of the Plenary of the Marbella Town Hall of 11 July 1995 which declares "that the roads of Puerto Banús are of public use and domain", an aspect which was confirmed by the Court of Justice of Andalusia and by the Supreme Court, "as such land has been open to public use as roads for more than 30 years".