Legal tip 695. The good new finally: a property with your refund
02 February 2012
It is possible, today is the day when definitive price reductions will start to happen in Spain. Banks are being finally called to realism in the value of their estate assets. A big restructuration is showed.
So...is very possible that with just your deposit ( the one you have/are recovering), you will be able to buy a whole property. Is not great?
Are you coming?
Maria
Posted at 08:02 Comments (0)
Legal tip 694. Re-edited answers for community of owners 5
01 February 2012
29.The lift is broken… who should I call? You need to notify it to your President (he might have to call the Property Manager) as the Community of Owners (CO) is obliged to make all the required reparations to keep services in good use.
30.What about a crack in the pool? Or in the commun front wall? Of course they are also obligations of the Community of Owners, which need to have insurance for these reparations. If the building defects appear within the first 10 years there is an Insurance that the developer needs to hire and maintain.
31.Is it the so called seguro decenal? Yes, correct! It is called that way because it covers building defect during ten (decena) years.
32.Some parts of the façade of my building are falling and no one takes action… what should I do?
You need to communicate it to the President for the Community to take measures as, the Community will be liable for any damage or injure caused. That is why a good Insurance for the community of owners needs to include civil liability coverage.
33.Can I ask for a change of look of the façade? It is in a great condition of conservation but…..it is so old fashioned!
No owner can demand new installations, services or improvements in the building which are not necessary for the needed conservation, habitability and safety of the building.
34.I would need a video entry phone for the building. Am I entitled to ask the community to place and pay for it?
If you are deaf or think there are clear safety reasons which require it, of course you can and the Community needs to pay for the installation.
35.The members of the community of owners have decided to install a hot tube and some gym equipments in the garden, which will entail to pay a double community fee. I opposed to that I the Community of Owners. Can I omit the payment as I do not need such extra things!!
I am afraid you will have to pay for them, as just if the fee was three times the amount of an ordinary quota you can exclude yourself to pay it if you did not agree with the unnecessary improvements.
32.We have placed electronic devices to open the common main doors with the TV remote control, my neighbour opposed the installation and now is benefiting for the service because it is also reached by his T and we cannot deprive him from it…. what a nerve! Can we ask him to pay?
If the fees for that installation was more than three times a regular fee, and he opposed the installation in a community meeting, you cannot oblige him to pay.
If the deprivement of use of an extraordinary, non-necessary improvement is possible (hot tubes, gym machines…) and later on, the dissident neighbour wants to take advantage of the improvements, he will have to pay his instalment on the expenses related to the installation and maintenance, duly updated, applying the corresponding legal interest.
"Plaza de España de Medina Sidonia", by elarequi61, at flickr.com
Posted at 07:36 Comments (0)
Legal tip 693. Caja Murcia settling
01 February 2012
Commun sense of this Saving Bank in Murcia, which after us presenting a claim based on provision 1segundo of Law 57/68, yesterday settled and paid our client´s amounts back into the Courts´account.
Provision 1 segundo of Law 57/68 establishes that Banks receiving buyers´ deposits in off plan purchases are liable if the buyer does not receive a Bank Guarantee.
Good! So good!
Maria
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"Medina Sidonia, February 28 2010", Cádiz, Spain, by _ DODO, at flickr.com
Posted at 07:26 Comments (6)
Legal tip 692. Both useless and unfair
30 January 2012
An answers in a question today in the forum:
Dear Mega:
Enforcing these Court decissions against the developer is, in our opinion both useless and unfair:
Useless: Becuase many developers and bankrupted or with bery low solvency rates. Their developed properties all have a preexisting mortgage in favour of a Bank ( which was funding the development) and if entered into Creditor´s meeting your rights are very poorly recognised by the Bankruptcy Act.
Unfair: law 57/68 stablished liabilities for both the developer and ( I would say MAINLY) for the bank which received people´s deposits.
It is a joy that this Law which keeps a pro-consumer, pro-person approach of bank´s rols is active and enforceable in Spain. It gives to us a right and balanced picture ( even much breached) of these businesses where Banks had much to gain and little to risk. They were constituted as guardians of deposits in 1968
"Street in Algodonales", Cadiz, Spain, by nikosfotos, at flickr.com
Posted at 14:25 Comments (0)
Legal tip 691. Murcia Appeal Court is clear on publicity as part of the contract
30 January 2012
On recent Court decission dated december the 9th, 2011.
It cannot be otherwise as the contrary would be against Law, Supreme Court Case Law and European Law, a recent excellent Court decission by the Murcia Tribunal clearly states that:
"When publicity contains specific and objective data in relation to essential and relevant characteristics of the contract ( STS 26 March 1993 and 28 January 2000) and the date of delivery of property to buyers, according to recent Court decision of the Supreme Court dated 12th of July, this is “ important in an unquestionably way for contract integration as that publicity has been relevant to the making decision process".
This Murcia Sentence is in accordance to Supreme Court decissions of 18th and 20th of March 2002, 15th of June 2000 and 23rd of May of 2003.
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"Algodonales, pueblo aceitero", Cadiz, Spain, by maesejose, at flickr.com
Posted at 13:12 Comments (3)
Legal tip 690. Re-edited answers for community of owners 4
27 January 2012
23.Can I turn my apartment into two? Yes, you can. Flats can be divided and joined, the consent of affected parties and of the Community of Owners by unanimity is needed.
24.Am I fully free to keep my house dirty or un-maintained? No…. you are not, for the common good of the neighbours. If smells, leaks, noises … cause damage to your neighbours, you will have the obligation to compensate them.
25.Should I bear every work agreed by the Community? Of course, you have, even if they limit your ownership rights if they are for the creation of common services of general interests (access to handicapped people, additional elevators for stairs stretches, anti-fire devices….)
26.What if I want my Community mail to be sent to the UK? You cannot receive your community mail in the UK. You need to choose an address in Spain. Your Spanish lawyers´ address may be a good idea as he/she will be ready to oppose anything found illegal in the mail right away! Some foreigners suffer the decline of their rights just because they did not receive a communication or a lawsuit. Some plaintiffs take advantage of this to win judicial cases!
27.Can I communicate the mail address by telephone? No, you need to use a mean which leaves proof of reception: a registered fax or letter most advisably.
28.I have not communicated any special address in Spain. Where is the secretary sending the communications? In defect of any specific mail address, the secretary sends the letters to your apartment located in that Community and if not possible there, he/she places a post in the news board of the building!
Have a joyful weekend!
"Vista general de Grazalema de noche", Cadiz, Spain.
Posted at 09:46 Comments (0)
Legal tip 689. Re-edited answers for community of owners 3
26 January 2012
13 .My community established additional rules to the Statutes, is this legal?
Yes, owners can establish new rules (always provided they are respectful towards applicable Law). Just majority is needed in these cases.
Nothing against Law, moral or public order can be agreed
14 .What if the rules are against Law?
If a rule is against Law, it is null and void and you are not under legal obligation to obey it.
15.I want to do some refurbishment in my apartment? What do I need to do?
Firstly, go to Town Hall and ask for the corresponding " Licencia de obra menor"
In respect to Community, rest of owners: you just need to communicate it to the President in written.
Every owner can just do building works in his flat or premise, modifying its architectural elements, installations and services, provided:
*The safety of the building, its general framework and its outer configuration and conditions are not altered.
*None of the other owners’ rights are damaged.
16.My community does not allow pets? Is this a legal prohibition?
Community of owners cannot restrict the way you use your private property or the guests you have in it: other way said they have no jurisdiction on your home (thank goodness!).
Decisions by the Community need always to be made just regarding common elements. So the answer is… YES. You can have pets; provided they behave according to the rules of the Community in common areas and they are healthy, safe and innocuous. (can not have a panther for instance).
Owners, in a community meeting, can agree for tenants not to bring pets, but can never impose restrictions to your ownership rights.
17.But what if a neighbour has a dangerous animal or has a pet in unhealthy conditions?
After reporting it to President, for an amicable solution, you can also report it to the Police and the Health Local Authorities, which can oblige the owner to “relocate” the funny animal out of the Community.
18.Can the community prohibit me to walk my dog through the common elements?
No, they cannot. Always the dog performs in healthy, safe and innocuous condition. They can ask you to always walk your dog tied up as a matter of safety or health and/or clean if he/she…"burn ...” or “water...”
19.What can we do if an unhealthy behavious by an animal persists in the Community?
The President of the Community of Owners either by own initiative or by the initiative of any of the owners or users, must request the owner to stop the facts and inform that person about the legal actions against him/her that might be started if the behaviour is not stopped.
If the offender persists doing it, the President, once authorised by the committee of owners, can call the Police and local health authorities.
20 .What if the problem is a noisy baby?
Babies cry and it is unavoidable. There is nothing to do but use ears blockers or... offer some help to those busy parents.
21.What if an owner plays music very high?
Disturbing=illegal. The president can ask him to stop and if persisting can call the Local authorities for a stop.
22.Can a Judge ask the owner to compensate damages?
Of course yes, if a judicial procedure is needed to stop an illegal activity, the Judge can order:
- The offender to stop the forbidden activity once and for all.
-The offender to compensate the Community for the produced damages.
-The offender to be deprived of the right to use the house or premise for a period no longer than three years.
"Grazalema y su iglesia principal de noche", Cadiz, Spain.
Posted at 17:16 Comments (0)
Legal tip 688. Good quote at the FT for thinking
25 January 2012
http://www.ft.com/cms/s/0/2f0babbe-3e30-11e1-ac9b-00144feabdc0.html#ixzz1kT9MkTM5
"As a result, consumers and investors are doing increasingly well but job insecurity is on the rise, inequality is widening, communities are becoming less stable and climate change is worsening. None of this is sustainable over the long term but no one has yet figured out a way to get capitalism back into balance. Blame global finance and worldwide corporations all you want. But save some of your blame for the insatiable consumers and investors inhabiting almost every one of us, who are entirely complicit."
The writer is a professor of public policy at the University of California at Berkeley, and was US secretary of labour under President Bill Clinton
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"Algodonales 2009", Cadiz, Spain, by Tom@There, at flickr.com
Posted at 12:47 Comments (0)
Legal tip 687. Re-edited answers for community of owners 2
25 January 2012
5. Do I own some of the common elements?
Yes you co-own them. You are the exclusive owner of your apartment and co-owner of the common elements: stairs, patios, yards, entrances, elevators, structural elements, power supplies´ installations, pools, gardens, tennis courts, common facades, roof…
6. How do I know which are "my" common elements of my Community of Owners?
The chart of individual and common elements is a Notary deed, the deed of Horizontal division which is granted when the building is finished. It is kept by preident/ administrator and the Notary. You can ask for a full copy of it if you want.
It is a document which describes the building as a general unit and every flat or premise individually, with indication of surface, floor and annexes such as parking garages, attics or storage rooms.
7. So, as I am a co-owner, can I freely allot some of them for my privative use?
Unfortunately not. Co-ownership on these just implies you need to maintain them (there the community of owners quota) and you need to be asked on any alteration of them. Of course you can also make a commun use of the same ( pools, tennis courts...) according to the internal rules of the Community which are agreed by all owners.
8. Oh well... how is that quota calculated?
Every apartment or premise has a quota or share of ownership (cuota de participación) of the total value of the building, which is the scale to determine the percentage on the community expenses to be paid by each owner.
The proportional share of every flat or premise is fixed having as the calculation base, the net usable area of every flat or premise in relation to the whole building, its interior and exterior location, situation, and the kind of use of common elements that the owner is supposed to be doing in the future.
9. What if I do not agree with the quota assigned to me?
You can of course analise how it was calculated and challenge it before the Community of Owners. You can also go to Courts if they keep " overcharging you".
10. How can I know where are the legal rules of the Community? I do not want to obey too many rules...
That Notary chart, the horizontal division deed, also has certain regulations ( called Estatutos) of the building use, its flats and premises, installations and services, expenses, administration, maintenance and repairs. Every new owner will be bound automatically by them and the decisions legally taken at previous meetings.That´s the reason why it is very advisable to read previous rules before buying a property: for instance:on the allowance of pets, smokers... Any addittional set of internal rules can be democratically passed by owners legally constituted.
11. Where can I know of previous decisions made by the Community of Owners?
The minutes of the Meetings of the Community are kept by the President or Administrator.
12. Can stupid rules be removed?
Of course yes but you need the unanimous consent of all the owners if they are part of the Statutes and the majority if they are part of additional internal rules.
"Algodonales main square.The preparations for the Carnival are underway", Cadiz, Spain, by gunnsteinlye, at flickr.com
Posted at 08:17 Comments (0)
Legal tip 686. Re-edited Answers for community of owners 1
19 January 2012
Some answers:
1) It is NOT possible to register a Community debt against a property at the Land Registry in Spain:It is possible once approved the preventive seizure of goods by the Judge.
2) Someone asked about virtual meetings. They are possible if the system can prove the real identity of owners or proxies.
3) If a Community may not deprive a debtor of the use of communal facilities, may debtors be deprived of the use of a communal facility upon which major expenditure has been made since they have not been paying their dues?
If the expenditure has been made to keep the commun use he cannot be deprived, if the expenditure is a improvement he can.
Section 11
1. No unit owner may demand new installations, facilities, services or improvements not required for
the correct maintenance, habitation, safety and accessibility of the building, in accordance with its nature
and characteristics.
2. Where resolutions are validly adopted to carry out improvements that may not be imposed in
accordance with the provisions of the last preceding subsection and whose cost of installation exceed the
ordinary common expenses for three months, dissenters shall not be bound, nor their fee modified, even
where they cannot be deprived of the improvement or benefit.
If dissenters wish at any time to take advantage of the benefits of the innovation, they shall have to share in
the cost of installation and maintenance, duly updated by application of the legal interest rate.
3. Where resolutions are validly adopted to carry out work to ensure accessibility, the community
shall be obliged to pay the cost even where it exceeds the ordinary common expenses of three months.
4. Innovations impeding or barring any unit owner from using and enjoying any part of the building
shall require, in any case, the express consent of such owner.
5. Special assessments for the implementation of improvements made or to be made in the building
shall be at the expense of whoever is the unit owner at the moment when the amounts corresponding to
such improvements become due.
4) There is something about that in the Horizontal Property Law, but could it be applied to major repairs to an existing facility? This is an obligation of the community and the non payer owner can have a charge on his property due to the lack of payment of these. You can use arbitration ( much advised) to solve possible discrepancies.
Section 10
1. The community is obliged to carry out work necessary for the proper upkeep and maintenance of
the building and its facilities in order to preserve appropriate conditions as regards its structure,
imperviousness, habitation, accessibility and safety.
2. The community, at the request of owners of units in which persons with disabilities, or persons
over the age of seventy, live, work or render voluntary or altruistic services, is obliged to carry out work to
permit accessibility to and use of common elements in accordance with the disability of said persons, or
work to install mechanical and electronic devices favouring their communication with the outside, provided
the total cost of such work does not exceed the ordinary common expenses of three months.
3. Unit owners exercising opposition to or causing delay of the execution of orders decreed by the
appropriate authority shall be held accountable individually and be subject to administrative sanctions.
4. Discrepancy concerning the nature of works to be carried out shall be resolved by the owners’
general assembly. The interested parties may also apply for arbitration or for a technical opinion in the
terms established by law.
5. The obligation to satisfy expenses arising from maintenance and accessibility work herein stated
shall be attached to the unit in the same terms and conditions as those established in section 9 for general
expenses.
"Algodonales from the main takeoff at Sierra de Lijar", Algodonales, Cadiz, Spain, by gumnsteinlye, at flickr.com
Posted at 08:24 Comments (2)
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