El blog de Maria

 Today´s: Perspective

A quote by a great person:

“Humor is perhaps a sense of intellectual perspective: an awareness that some things are really important, others not; and that the two kinds are most oddly jumbled in everyday affairs.”

Christopher Morley quotes (American writer and editor 1890-1957)

 Falling into one day´s, one week´s, one month´s perception of the company is the way to lose perspective and energies. Tracing a system by which you acquire a short, medium and long term perception of the events of the company is a great tool for a balanced management.

The Costaluz Lawyers team

Act 32/2010 of the 5^th August sets out a benefit system for the self-employed who stop working.

A report was prepared by a group of experts and was presented in December, 2008 by the Minister for Employment and Immigration.  This represented a starting point for the development of a pre-law study on a system of benefits specific to the self-employed who stop working.

Using as a reference the experts’ report and observations made by associations of autonomous workers and social experts, the Ministry of Employment and Immigration put together a proposal which was analyzed and reviewed by the aforementioned groups.  Final consideration was given to the report issued by the Economic Social Council.

The Law states that, in order to be able to enjoy the right to benefits due to the cessation of work, self-employed workers must pay their social security contributions continually during a minimum period of 12 months immediately prior to the date of ceasing work.  This would give them the right to 2 months of benefits.  A self-employed person who, in 2011 expects to claim unemployment benefit will have to pay extra social security contributions throughout 2010.

The system which has been designed to allow the self-employed to be able to claim unemployment benefit is based on the principles of contribution, solidarity, and sustainability.  It is a mix between being voluntary and obligatory so, to be able to claim unemployment benefit, the self-employed will have to make contributions for work-related accidents and illnesses, something which until now has been voluntary expect in specific cases such as that of Economically Dependant Self-Employed Workers (self-employed people who depend on one single client for at least 75% of their income) or, in the future, in the case of the self-employed who operate professional activities with an increased risk of occupational hazard.

The amount of benefit for ceasing work in the case of the self-employed will be a minimum of 583.38 Euros per month and a maximum of 1,389.90 Euros per month.  The exact amount throughout the entire period of entitlement will be equivalent to 70% of the base for which the worker was making contributions during the 12 months prior to the end of their period of self-employment.

The length of the period of entitlement will be between 2 and 6 months, depending on the period of contributions and in cases of self-employed workers being between 60 and 64 years of age, the length of entitlement will be a minimum of 3 and maximum of 9 months.

Specifically, the self-employed who have made contributions over 12 to 17 months will be entitled to two months of benefits, those who have made contributions over 18 to 23 months will have 3 months of benefits, those who have made contributions over 24 to 29 months will have 4 months of benefits; 30 to 35 months of contributions will guarantee 5 months of benefits and 36 months or more of contributions will give 6 months of benefits.

The period of benefits will be related to the periods of contributions made within the 36 months prior to the legal cease of work, of which at least 12 months must be continuous and immediately prior to said cease of work.

Natural Park of the Strait of Gibraltar by Roberto Pecino at Flickr.com

The majority of accidents in Spain are processed by the CIDE/ASCIDE agreement.  These are accidents in which a vehicle accident report form is completed.

The difference between completing an accident report form correctly and incorrectly can mean a delay of many days in the satisfactory resolution of the accident and the repair of the vehicle.

Three in every four drivers do not know how to use the accident report form for many reasons such as the stressful circumstances following a traffic accident which can reduce our response capabilities, the technical language used in the form itself and not taking sufficient time.

The most frequent mistakes made by drivers when filling in the accident report form are, amongst others;  the apportioning of blame which is not their duty, but the duty of the insurers, the drawing of the diagram of the accident or the lack of details which is generally limited to taking the details of the other party and obtaining their signature without having reflected on who is responsible for the accident.

The consequences of not correctly completing the accident report form can give rise to various issues; it becomes more difficult to prove the facts and responsibility, there are delays in the periods for claims and the resolution of the accident and, consequently, the repair to the vehicle.

Advice:

The most important issue in this situation is to avoid a further accident, so therefore you must immediately move the vehicles to the nearest safe place.  If it is not possible to move the vehicle  due to the damage caused, make the situation as visible as possible to other drivers.

If possible before moving the vehicles, take photographs of the vehicles involved showing their final position in relation to the road on which they were travelling.

Never argue with the other party concerning the blame for the accident for two fundamental reasons.  Firstly, as previously mentioned, it is the job of the insurance companies to assign responsibility and secondly, this information is not required on any part of the accident report form.

Nevertheless, there are many reasons why the presence of the police may be required, such as if the accident is serious, there are injuries, the other party attempts to or has fled the scene of the accident, if one of the drivers is found to be under the influence of alcohol or drugs, when more than two vehicles are involved and errors can be made in putting together the various reports, when the other party refuses to identify himself or when he/she refuses to sign the declaration after having completed it.

If the accident is between people of different nationalities, the Green Card or the international insurance must be requested.  The accident report form may of course be completed in a foreign language as the headings are numbered for translation purposes.

Villa Capistrano, Nerja, Málaga by Roberto Pecino at Flickr.com

The Corporation Law (LSC) whose adapted text was passed as the Royal Legislative Decree 1/2010 of the 2^nd July, and came into effect from the 1^st September of the same year, has meant more of a formal than actual change in the rights of companies, as its main aim is not the introduction of new rules but the summarizing of various existing laws in one single document.

The new modified text brings together, in over 500 articles, the mandates which until now, were spread across four regulations which are now either totally or partially abolished following the introduction of the LSC:  the Public Limited Company Law (LSA), Private Limited Company Law (LSRL), section 4ª of title I of book II of the Business Code (CCom) and title X of the Market Value Law, referring to limited partnerships and listed companies respectively.

The LSC is pressing to move forward towards a unification of all business law, culminating in an eventual codification:  “the general wish is that the entirety of general law which applies to trading companies, including that which is applicable to personal companies, is contained in a single legal entity, which will overcome the continuing legal plurality which the present text revokes but does not entirely eliminate”.

Bringing the business laws together in a single text, it is made clear that these are applicable to the three different types of capitalist companies, except in such cases where it is expressly specified that it only applies to one or more of them, or in other cases where there are nuances or different ways of dealing with the same question in one type of company than in another.  In the case of by-laws, for example, article 23.e of the LSC requires that Public Limited Companies indicate what their type of management structure will be, and allows Limited Companies to include various  options, letting them pick that which they consider most suitable.

In the next few years, this unification will lead to the creation of a new Business Code which will substitute the old text which has been in place since 1885 and bringing it more into line with the corresponding laws established in Europe.

By Jesus Castro

Typical house of Castellar castle by Roberto Pecino at Flickr.com 

Now... you want obviously to be sure that the land and the house you are watching and which is said to be the object of your sale contract is what will legally be yours in documents and, most importantly, in the Land Registry.

-The cadastral reference is the official and binding physical identification of a property. It is a twenty character code.

-A “Nota Simple Informativa", a much more important document that the Cadastral one is the ultimate ownership legal description and title. It is a document issued by the Land Registry that shows the most authorized legal information about physical data, legal title, description, location, charges, encumbrances, easements…of a particular plot. The Land Registry is public for those who demonstrate a legitimate interest in its consultation. There is a legal motto which says" What is not in the Land registry it is not in the traffic"

You will legally acquire or transmit what is on the Land Registry.

If Land Registry, Cadastre and reality do not coincide, it is advisable for you to start the adequate procedures for all these documents to coincide for your benefit and protection. You might need the aid of a topographer to this aim. Then, some legal procedures before the Land registry will have to be followed for your property to be registered in accordance with reality.

The most common two procedures before the Land Registry to match legal data with reality are “Exceso de cabida" procedure and "Obra Nueva" procedure.

We will explain about this in next post.

Have a great summer weekend!

Maria

 Benalauría, Málaga by Roberto Pecino at Flickr.com

You finally found that special plot with house in rural land in Ronda where you plan to build the rural little hotel. You are dreaming of the amenities you will set for the guests: horse riding, hikking, climbing, cannoing.... all under the Andalusian sun.

You set an appointment with the local owner to take a look to the farm house and land,  see each other in a picturesque "venta" in the outers of Ronda, have a quick "carajillo" (coffee with brandy) and make your route to the "land of promises":

- Beautiful! but... how big? you ask while you see the eyes of the owner turning left and right and his mouth starts telling you... well..... in the catastro.... but .....in the Land registry..... but .....in the private contract.......( which was made on an old napkin of that same old venta you had your carajillo half an hour ago: fully valid under legal terms). What a mess oh dear!

Yes, it is a kind of funny puzzle which better needs a legal expert to be quickly assembled.

Let´s see about borders today as it seems.... they are not too clear :(

The action of demarcation is described in Articles 384-387 of the Civil Code. It is an easy, rapid and economical procedure whose purpose is to invite the owners of neighboring properties to submit the relevant titles for an agreement on borders.

Of course you can always reach an agreement out of court, through the parties' lawyers, who then can notarize it and record it accordiongly in the Land Registry.
If no agreement is reached by the parties, you can have the Judge deciding on this through the mentioned quick procedure.

How can you prove ownership on an area under dispute?

Of course by corresponding legal ownership titles, if they are clear. If the legal titles show no clear division, this can be obtained by the result of possession. Possession is showed through any signs of the land being used by any of the owners ( materials placing, fencing, planting, pictures, painting, writings...).

Expert surveyors can also issue a report on the demarcation of lands.

Other documents that show evidence: Notary deeds, Catastro certificartions, Planning department certificatons...

More on your farm tomorrow,

Maria

 Window. Country house in Benalauría, Málaga by Roberto Pecino at Flickr.com

 It is interesting that in the most recent treaty on Consumers protection, published by Dykinson and copyrighted by Proffessor Carlos Lasarte and the National Institute for Consumers of the National Deprtment or Health and Social Policies, two out of the five exmaples of case Law on this topic are from Murcia Appeal Court (Room 5).

There are of course many other examples of this legal obligation ( Publicity is part of the contract) on both regulations and Case Law: from a 1977 Supreme Court Decission to the most  recent Consumers Act, dated 2007 where  it is explicitly stablished the linking character of precontractual and publicity contents.

Provision 61.2 of Current ( 2007)  Consumers Act says:

"2. El contenido de la oferta, promoción o publicidad, las prestaciones propias de cada bien o servicio, las condiciones jurídicas o económicas y garantías ofrecidas serán exigibles por los consumidores y usuarios, aún cuando no figuren expresamente en el contrato celebrado o en el documento o comprobante recibido y deberán tenerse en cuenta en la determinación del principio de conformidad con el contrato."

[ Contents of the offer, promotion or publicity, specifications of every good or service, economic and legal conditions and guarantees offered will be requirable by consumers and users, even if they are not expressly mentioned in the contract or in the receipt and will hev to be taken into account when determining the principle of conformity with the contract".]

It is so good  Appeal Court, room 5 in Murcia is applying Law so rightfully!

Best week,

Maria

 Valdevaqueros beach, Tarifa, Costa de la Luz, Cadiz by Roberto Pecino at Flickr.com

Your farm will obviously be located in non building or rural land. Under  a Planning Law point of view houses on non building land can basically be under  these two different situations:

- A house for uses allowed for the Planning regulations: related to agriculture, forestry, hunting, etc ... Constructions of buildings associated with the activity itself to be developed in the soil are allowed. This includes housing, provided such residence is also linked to the operation of the farm. Planning regulations always set a limit in order to impede that new urban settlements arise.

- The second situation our house can  be is not linked to agriculture, forest, hunting… but just linked to the use of purely residential housing.   Circumstances which may have conducted to the existence of these units are very varied, such as caducity of an administrative sanction  or allowance by the Local planning regulations for the existence of the same. These buildings are included within a special regime under which there are a number of limitations on the use of the home. These limitations revolve around the inability to work enlargement of the building and perform general restructuring of the same. Just refurbishment and restructuring works are allowed.

As a conclusion: a house in non building land does not necessarily has to be ilegal, every single one has its own planning regime applicable, therefore, an individual research on planning regulations applicable to each one of them is always necessary.

More on your farm-house in Spain tomorrow.

Best regards,

Maria

Tarifa Beach by Roberto Carlos Pecino at Flickr.com

Today´s: Self  knowledge

A quote by a great person: "A man should first direct himself in the way he should go. Only then he should instruct others" Hindu Prince Gautama Siddharta, the founder of Buddhism

Direction cannot be given if the director does not know where he  is going, why he is going there, when it is necessary to stop and rest, when to run fast..External indicators, persons of wisdom you can trust can give the necessary mirror for directors to know themselves and be able to better lead others.

The Costaluz Lawyers team 

An old spanish farm to be refurbished.... a dream: a way of living and a business.

It seems that you english, plus french, belgians and northamericans are the main buyers of these type of properties in Spain these days.

We are starting today a number of articles on the necessary legal checks for buying this type of properties.

A quick list:

- Land classification

- Ownership title of seller: charges, encumbrances, possible rights of heirs...

- Refurbishment rights on built elements

- Possibilities for new elements to be built

- Preference rights of Natural Park or adjacent owners

- Access rights

- Irrigation rights

- Well rights

- Dividing walls rights

- Easement rights and obligations

- Telecommunication access rights

- Catastral and IBI verifications

...

I am sure you are going to enjoy  this serie... and who knows?... maybe any of you finally make the decission on moving to Spain. As always, first thing to find is a good, independent lawyer of your trust different to that of the estate agent of seller.

Best wishes, Maria

 A view from the train near Ronda by Roberto Pecino at Flickr.com

Against what is thought and sometimes "lived" by many foreign people in Spain, August is not a whole-month-of-holiday eveywhere in Spain.

Political and Courts vacations are in August, this is official. Schools and Universities are all closed from around 15th of June to around 15th of September,

For the rest of the cases, we all just have 20-30 working days a year of vacations that every worker/company takes when it suits them. Of course many people take them in July-August due to the hot....sometimes unbearable... yes,  we know you love our unbearable hot.

I am pasting here the Work calendar of our Work Ministery. Just in case any of you have the curiosity.

Have a great August, wherever you are and whatever you are doing or not doing :)

Best  summer wishes,

Maria

Gibraltar by Roberto Carlos Pecino at Flickr.com

The First Occupation License is a license which states that what it has been built  is adjusted to the  work Project who obtained License by the Local Planning Authorities.

The FOL verifies if the building can be assigned to its legal use, because it is located in a proper  planning zone and if  it meets the basic safety and health conditions. It also confirms that  the builder has fulfilled his commitments on urbanisation of the surrounding land.

Regarding FOL and completion, Consumers specialists state:

1.- The seller who signs the public deeds of purchase without FOL ( First Occupation License) is in breach of contract even if the house has been physically handed over, because the ownership rights that he is trasmitting are not valid for the use of the house till the FOL is granted.

 2.- The buyer can refuse to the signing of the deeds till the FOL is granted if the completion date was fixed for anytime after the end of the work, and the seller cannot cancel the contract due to this negative of the buyer until he fulfills his contractual obligations ( after obtaining the FOL).

 3.- The buyer can cancel the contract ( even after the signing of the deeds), with full devolution of amounts, interests and compensation of damages if after the completion date, either  the deeds having been signed or not, the building does not have the FOL.

4.- If the buyer decides not to cancel the contract, he must not occupy the house, even when having being formally handed over, because that would involve an administative infringement and because he can be deprived of its use by the competent Administration

Also , the Ground Act dated the 28th of May 2007 establishes in its provision 19 that the Notary deeds of " Under construction New Work " which are granted at request of developers when starting the building of a work require the existence of Work License. No Notary can sign a New Work deed without such license.

Provision 19 also establihses that the deed for the end of work will need the verification by the Notary on the existence of the First Occupation License and therefore deeds for the completion of the purchase business and transmission of ownership rights to Consumers cannot be granted without First Occupation License. In short words:  no house can be acquired without that license

 Today´s :Love

A quote by a great person: " If you judge people, you have no time to love them" Mother Teresa of Calculta

And a paragraph from a recent management book: 

Desde la empresa, con amor

Argandoña Rámiz, Antonio

"En cualquier caso, lo importante en un acto realizado por amor, aunque sea imperfecto, no es el resultado, sino la acción. Una acción es éticamente excelente cuando el agente busca el bien del otro, aunque no le conozca (como un cliente, por ejemplo), aunque esté equivocado sobre lo que es bueno para el otro, o incluso aunque la reacción del otro sea contraria a lo que él esperaba. Y la excelencia no debe obviarse en una empresa si quiere llevar a cabo su actividad con eficiencia"

"Anyway, the importance of an act made with love, even imperfect, is not the result, but the action. An action is excelent from the ethical point of view when the agent is looking for the good of the other person, even not knowing him/her ( as a client, for instance) even when the agent is wrong regarding what is good for the other one, and even when the reaction of the other one is against what it was expected by the agent. Excellence cannot be forgotten in a company if this is looking for efficiency"

Administrators must observe professional secrecy regarding the data they use in the performance of their duties as administrators and should also guard them. These obligations will remain even after the end of their relationship with the owner of the computer file or, where appropriate, with the operator.

In the event that the relationship between the Administrator and the President breaks, the Administrator needs to return the data to the community and block the information that has been needed for tax purposes for a period of four years, after which he needs to suppress them

If the administrator or the President would cede data for commercial purposes, we would face a case of transfer of data that requires the express consent and previous information by the person in charge of them, the purpose for which the same are transferred, the nature of data, and the name and address of the recipient.The breach of these obligations, contained in provisions 11 and 27 of the Data Protection Act implies fines from 300,000 € to 600,000 € as they are classified as very serious (Article 44 and 45 LOPD).

Regarding the file of debtors of the community, it is required that they are managed commensurately to the purpose of debt collection and the manager must always act diligently on the updating of these debt status, charges, payments...

July is finishing.... how time flies!

Gardens of Cordoba Reales Alcazares by Roberto Pecino at Flickr.com

The responsible party regarding protection of data of owners in a Community of Owners is the Community of Owners itself, through the figure of its President or Board of Directors.

The President of the community is entitled to access these data by the very title of President that the Community has given to him, so he is not required to obtain any specific consent for accessing the same, when necessary for the performing of his obligations with the Community of owners.

However, it is recommended that, by any of the means used by the community to inform, the different co-owners are informed on  (i)the existence of a file of personal data, (ii)who is responsible for the file (President or another member of the Governing Board),(iii) where they can exercise their rights of access, rectification, cancellation and opposition, and in general, the parameters laid down in Article 5 of the Protection Data.

The Admnistrador de Fincas (a third party- individual or company-) hired by the Community to act as Secretary of the same is merely a user of these data. 

If the Administrator has been entrusted with data custody care by the Community, he is also responsible for the custody and access to the same.  The custody/access duties need to be clearly regulated in the contract relationship between Community and Administrator.

( more to follow tomorrow)

Maria

I just read this post in Kyero today, and was wondering if this scenario: Bank´s ultra-arrogance, will change once first strong Court decissions stating their liabilities out of provision 1.2 of Law 57/68 start coming out. I am sure it will.

So, lawyers, judges... come to the battle! : the good health of our economy needs it.

Banks,  with their  irresponsable over-credit have been the origin of all the disasters related to off plan purchases during the boom days.

Banks, with their irresponsable immobilism, are now being the cause of the current semi-stagnation of the market.

Why can they be in this position? Because we are allowing them to be.

Yes, if we start asking them for liabilities out of provision 1.2 of Law 57/68, we will see how their position change.  Now, they have all the rights and no liabilities, all the control and this is stealing life to the market.

There is no other alternative for the correction and balance of this field but to start acting 1.2.

Come and make our company on this.

Maria

Paseando (Tarifa, Cádiz) by Roberto Pecino at Flickr.com

As per Banco de España´s opinion, Law and  Case Law , Law 57/68 guarantees , by force of Law,  beyond whatever  the contract parties have agreed,  are always , for the total amount consumer has paid  plus legal interests since payment.  Regardless of the amounts actually written in the guarantee document.

Again, this is a conseuqence of the Public Interest character of this Law and the inalienable character of the rights created by the same.

Alcaidesa by Roberto Pecino at Flickr.com

Supreme Court .Decission dated 17th of March 2010.

It is abusive the clause included in the purchase contract of an apartment  by which the buyers need to rent the units through the company chosen by the developer ( buyer).

The legal basis for the abusive character of the clause in an unjustified limitation of rights linked to ownership ( use and occupancy: possession) and the unbalance of contract parties.

Have a great weekend!

Maria

Cal y cielo (Lime and sky) Benalauría, Málaga by Roberto Carlos Pecino at Flickr.com

What a combination! Isn´t it?

Yesterday, at the Ronald Reagan Center before 400 leaders from public and private arena Obama said again that the cornerstone of the financial reform is based on consumers’ protection.

As you know, we like understanding Consumers Law as the Law field for the protections of PERSONS ( there families, there society...) before the wild forces of markets, whatever market, of course, and even principally the financial market.

Financial wildness has damaged economy, according to Obama´s speech yesterday. In Spain´s case, it has damaged economy and nature: the beauty of our coasts has been directly impacted by the voracious appetite of Wall Streeters. Ask Greenpeace and their reports on Spanish Coasts!

It seems that among the invited to yesterday´s Obama event at Reagan Center in DC were two citizens who have been damaged by the excesses of Banks who were remarked by the White House and the beneficiaries of the reform.

In Spain once Banks start to honour their liabilities attached to Law 57/68, both when existing and when non existing Bank Guarantees, a  new, person oriented status after the crazy, ultra-benefits style of  off plan businesses of the boom years will flourish finally.

Law 57/68 entrusted the balance of these off plan risks to Banks. Now, Spanish Banks, together with the stress tests need to demonstrate they carry on with their liabilities when they are asked bout them. Many citizens damaged by excesses of Banks will be given back what is theirs.  It will be very soon, we are certain about this.

By the way....how is your summer in Spain going?

Best,

Maria

 Sunset in Sierra de Grazalema by Roberto Carlos Pecino at Flickr.com