The Provincial Court of Las Palmas has confirmed the sentence that in 2018 condemned the Water Consortium to return to its legitimate owners a property that was illegally occupied in Órzola, and in which works continued to be carried out under the Presidency of Pedro San Ginés, despite warnings from the landowners, including the then Councilor of Ciudadanos Benjamín Perdomo.
In the first ruling, the Court of First Instance Number 5 of Arrecife already concluded that the Consortium had acted in "bad faith" and condemned it to pay the costs of the lawsuit, but the government of San Ginés appealed again to the Court, which has now rejected its claims in full. In addition, the sentence issued by the Third Section again condemns the institution to pay the costs generated by that appeal as well.
"The data prove the bad faith of the different constructions," the ruling states, which rules out that this bad faith had existed on the part of the landowners, as the Consortium had tried to allege. In fact, it points out that on their part "what is evident is that for several years there has been an attempt to reach an agreement that would avoid the present lawsuit and far from respecting private property and reaching an agreement, the appellant entity, through the service concessionaire, has continued to disturb the legitimate property."
The land was occupied for the first time more than 30 years ago to install a water tank, without any document of sale, transfer or authorization by the then owner. Precisely what does exist are the writings that the owner sent in 1989 to both the Cabildo and the City Council of Haría, denouncing that his land had been occupied, carrying out a construction there without permission.
However, far from giving a response to the owner of the land, works continued to be carried out under the Presidency of San Ginés. And all this despite the warnings that the heirs of the property had been making, who already in April 2010 addressed Inalsa, requiring it to cease the "usurpation of the property", and then in 2015 to Canal Gestión, to whom the government of San Ginés had awarded the water cycle.
In addition, in 2013 they also filed a complaint with Seprona. Even, as the judgment of first instance pointed out, they had to "endure" a file from the Agency for the Protection of the Natural Urban Environment (Apmun), since Canal started these works without even having a license, so the work was ordered to be stopped. And the file was directed against the owners as owners of the land, who finally went to the Courts to assert their rights.
"We cannot understand that there has been good faith on the part of the defendant", the judgment of first instance stated, which concluded that the Consortium "has wanted to dispose of the service by locating it on someone else's property without paying for it, despite the continuous requests from the affected family." And the same has now concluded the Provincial Court, by ratifying that ruling and again condemning the Consortium to costs, which instead of reaching an agreement chose to continue litigating to defend the occupation of land whose ownership it has not been able to prove.
A supposed transfer from the City Council of Haría, which was not the owner of the land
In its appeal, the institution insisted that the City Council of Haría was the one who transferred that land to it in its day and that it had "some kind of agreement" with the owner. However, neither was the City Council the owner of the land nor was any document provided on that alleged agreement. In fact, the Court concludes that in the event that there had been any negotiation at the time, it "was not effective."
To support this, it is based both on the writing that the owner addressed to the City Council and the Cabildo in 1989, as well as on a plenary session of the Consistory in 1990, "where the problem of the land is revealed and a non-payment to Benjamín Barreto for the occupation carried out is reflected."
In its appeal, the Consortium argued that the magistrate of first instance had "assessed those writings in a biased way", since it insisted that "the purpose of the same is not the claim or the disagreement, but the request that certain lands be considered developable." However, like the trial judge, the Court concludes that these writings did denounce the occupation without authorization of his property.
Thus, it rules out that the possession of the land was "undisputed and peaceful", as the Consortium alleged, which, contrary to all the documents to the contrary that were in the case, maintained that "it was done in full view, knowledge and patience of all, without any requirement being made."
In addition, it appealed to a supposed statute of limitations on the right of the owners to claim judicially, something that the judgment also rejects, reiterating that all the writings they sent, including the last ones sent by the heirs under the Presidency of San Ginés, interrupted that possible statute of limitations. And it also rejects other allegations made then by the Consortium, relating to alleged errors in the measurements of the land, since it points out that there are no doubts about the land that was illegally occupied.
The judgment, against which only an appeal to the Supreme Court would be possible - provided that the "cassational interest" could be accredited -, thus condemns the Consortium to "return the possession of the entire property and the buildings built on it, as well as to vacate it within the period indicated in the execution of the judgment, warning them of eviction in the opposite case."
Regarding the way to execute the ruling, the Court points out that "it is not up to the judgment to determine the possible ways to solve the conflict in light of the full estimation of the claim." That is, the Consortium could negotiate the agreement that it did not reach at the time, although now with two judgments against it that have condemned the institution to costs, and that recognize the plaintiffs not only the ownership of the land, but also of everything built on it, which serves for the water supply in the northern area.