El blog de Maria

General Regime Education., in its different levels, are configured as crucial stages in the formation and acquisition of skills and communicative abilities of people in new  languages other than their own. In this sense, Childhood and Primary Education is the foundation on which we must establish a correct and appropriate learning of the English language as the  mastery of this language is an essential tool for children to reach, in fact, a full and effective integration as European citizens. 

To start a bilingual nursery care for children, a company of trust, equipped with safety and hygiene measures, and ample means for a complete care of the children is a very interesting option  both from a business and from a pedagogical perspective.

What is needed?

1.- To have efficient teachers,  certified in early childhood education, to address all the aspects to be applied, from the overall care of the kids, through  its intellectual aspects to the  social, cultural, and caring attention which children need and have the right to get.

 
2.- To have a physical space for the educational establishment which complies with current regulations, so you should  receive advise both  on the legal and  on the educational aspects. 

3.- You can add the school bus service for children, lunch service within the establishment, you can have early intervention service, psychomotricity, educational psychology, pediatrics and so on. The more complete the range of healthcare and education proffessionals integrated in your team, supporting  your educational proposal, the greater the value of your presence in the market.

 
It is important that the entrepreneur's point of view when working with children is different to that of the enterpreneur  in general, especially regarding  personal and social responsibility,  and  the special legal framework that corresponds to this type of activity.

 
If you do not possess the qualifications required by Spanish law, you can beging to study for becoming an early childhood education teacher or to do courses for the qualification as assistant teacher courses for nurseries and kindergartens. You can also start to  work for others  in a nursery in order to see if you have teaching abilities. 

By Jesús Castro and María de Castro

www.costaluzlawyers.es 

Talent and Effort: The Keys to Personal Growth

Álvarez de Mon Pan de Soraluce, Santiago

Publisher: Plataforma Editorial

Original document: Con ganas, ganas

Year: 2010

Language: Spanish

 

Malaga Appeal Court has again passed a Court decission favouring the application of the Pro-consumers approach within the off-plan business. This keeps providing fresh air against so much abuse and disaster.

The decission we appealed was passed by a First Instance Court in Marbella which, even both parties having acknowledged the delay of 11 months and lack of First Occupation License, considered there was no breach of contract  and the contract could not be cancelled.

We appealed on the basis of lack of correct application of Law 57/68 which simply and clearly exposes ( as you all know now) that delay of the completion of the works opens for the buyer the option between cancelling the contract or granting an extension period with the corresponding compensation as price reduction.

The other set of doctrine importantly applied by this Court decission is that of our Supreme Court by which  cancellations operate if  the breach frustrates the aim of the contract, the legitimate aspirations of the contract party. Just a clear and objective breach is needed, without the need, as per the old doctrine, of a persistent resistence to the fulfilment of the contract or a deliberate will of breaching but just a simply a voluntary and unjustified conduct for breaching the contrat in the agreed terms.

Congratulations to Malaga and our litigation department!

Corralejo beach Fuerteventura by Lorenzo at Flickr.com

For any of you having interests in Spain, which could produce a claim against you, we highly encourage you to check what is the address for notifications related to the said interests so you can effectively answer claims against you.

If you have a property in Spain: address for notifications is the adress of the property itself unless you notifiy to the company providing services related to the house ( phone, electricity...) or the Secretary/administrator of the Community of owners on the change of address for notifications.

If you have a business in Spain: address for notifications is the address of the business which is registered in the Company registry.

Both Social Security and Treasure department ask you to mention an address for notifications when registering in the system.

If you have a current off-plan contract which might produce a claim of the developer against you, it is highly advisable to verify if the address mentioned in the contract for notifications purposes is an accesible and easy-to-reach address for you as, on the contrary, some developers might be using the procedural "game" of notifying you in an address you cannot reach and use this   European Regulation of 2004 for the execution of debts which has not be contested.

Article 3

Enforcement titles to be certified as a European Enforcement Order

1. This Regulation shall apply to judgments, court settlements and authentic instruments on uncontested claims.

A claim shall be regarded as uncontested if:

(a) the debtor has expressly agreed to it by admission or by means of a settlement which has been approved by a court or concluded before a court in the course of proceedings; or

(b) the debtor has never objected to it, in compliance with the relevant procedural requirements under the law of the Member State of origin, in the course of the court proceedings; or

(c) the debtor has not appeared or been represented at a court hearing regarding that claim after having initially objected to the claim in the course of the court proceedings, provided that such conduct amounts to a tacit admission of the claim or of the facts alleged by the creditor under the law of the Member State of origin; or

(d) the debtor has expressly agreed to it in an authentic instrument.

2. This Regulation shall also apply to decisions delivered following challenges to judgments, court settlements or authentic instruments certified as European Enforcement Orders.

Our advise: two practical rules:

1.- Pay attention to every claim against you in Spain with the help of a good lawyer

2.- If you already have a lawyer of your choice and trust, we would advise you to ask him/her to send a notification of the LawFirm address as address for notifications.

Maria L. de Castro

 Playa Famara en Lanzarote by palestrina 55 at Flickr.com

The system of guarantees for the building work is regulated in Article 19 of the General Building Act.  They are legally compulsory for the developer finisihing a development.

The  Building Act establishes in its Article 17, three  warranty periods  depending on the type of damage.

10 years : for defects or flaws in the foundation, supports, beams, slabs, bearing walls or other structural elements affecting the stability of the building.

3 years : for defects or defects that affect the habitability of the building.

1 year: for defects involving elements of termination or completion of the building. This damage will be sole responsibility of the builder.

The time-limit shall commence from the date of receipt of the work, without reservations or from the correction of these.

This is a time of expiry (no prescription) that does not allow interruption or suspension.

Article 18 of the LOE provides that actions to enforce the liability for defects or defects in the building prescribe after two years since the damage occurs.

Therefore, the damage must occur during the warranty period (Art. 17 LOE), then the injured party has the above time limit ( two years) for filing the appropriate claim.

(See here Part I and Part II of this serie on building defects)

Maria

Zahara ( Cádiz) beach by Zahira at Flickr.com

The Court Solicitor in Spain: the expeditor of processes.

It has its origins in Roman law and there is this same figure in Portugal:( solicitador) ,France (huissier), Italy, Germany and in virtually all countries of South America, Belgium, Luxembourg, the Netherlands ( "gerechtsdeurwaarder ') and in Quebec (huissiers de justice) .

In Spain, the solicitor  of the Courts needs to hold a  Law degree,  and be registered in a  College,  he holds the legal representation of parties in litigation before the Courts. The solicitor is the guarantor and protector of the equality of the parts in Courts as due to the complexity of the judicial proceedings, it is important to have someone in charge of the procedure so that the parts may exercise their rights and appeals in term .

It is responsible for representing his client before the Tribunal or Court, receiving in its name as many notifications are required to the development of the procedure. This will speed up the development of the legal process, preventing the litigant to be  constantly submitted before the court or tribunal to be notified of the different resolutions to be issued in the judicial process.

The solicitors in his work as representatives  must follow the process, be aware of all the steps and inform the client and his lawyer. He needs to attend all steps and actions required of the lawsuit. Forward all documents to the lawyer and bear the expenses generated at the request of the customer (court fees, edicts in the Gazette, etc.) . He also gives  documented account of them.  They also have the duty to cooperate with the courts in the administration of justice and represent litigants without financial resources in the cases provided by law.

Besides presenting the writings of the lawyer,  they can also do their own writings, which are procedural writings: Applications for taxation of costs, applications for  testimonied copies, writings for Court attendance, requests for  verification of home and assets, writings to raise entries, for the speeding of the procedure etc.
 
Intervention of solicitors  is mandatory for all civil cases except  oral proceedings of a value less than 900 euros,  in the initial request for  small claim procedures, in those letters by which parties request  urgent action before trial or suspension of hearings, in universal judgements, when the attendance is limited to lodge credit titles or rights, or to attend meetings and incidents relating to challenges to decisions on legal aid.

In Summary:  The mission of the Court Solicitor is to expedite the judicial process: by following the procedures from the lawsuit and address the obstacles that could delay the final Court decission and its execution.

Malaga staircase by Alaskan Dude at Flickr.com

There are two options to choose when someone wants to start a business in Spain:

1) Be a self-employed person.
2) To create a commercial company: usually the most common form of company is the Limited Partnership.
    
    Before you decide:

    Definitions and main charactristics:

    SELF-EMPLOYED: In Spain, a self-employed or sole proprietor is the natural person who carries on a regular basis,  a personal and direct economic activity with lucrative purposes, not subject to work contract and with the possibility of hiring workers.
    
It is assumed the status of self-employed if you have ownership of an establishment open to the public as owner, tenant, or lessee.
    
The self-employed has an unlimited liability, responding to business activities with all its present and future assets, so there is no separation between personal wealth and enterprise assets.
    
The self-employed person is obliged to pay Social Security fees from the first day of the month that he began its activity and this obligation continues until the employee is active, even during situations of temporary disability, risk during pregnancy, risk during breastfeeding, periods of maternity or paternity leave. The compromise ends the last day of the month in which the employee ends his self-employment.
    

LIMITED LIABILITY COMPANY: Organised to give its owners limited liability. The capital of the company consists of contributions from all partners and is divided into equal shares, cumulative and indivisible, which can not be incorprated to negotiable shares and nor be named shares.  Partners are not personally liable for debts, the liability is limited to capital.
    
SELF EMPLOYED OR LIMITED?
    
    There are different  economic, legal or images sake reasons in order to choose between one or other form of trading. You need to choose the legal form that best suits your needs.
    
Disclaimer:

    In the case of a self-employed, the liability is unlimited,  as there is an absence of divission between  company and personal assets . While limited liability companies is limited to the capital. Thus, when a limited company goes bankrupt, only respond with his possessions, and never will with the properties of their owners.

    Financial requirements:

A limited requires a minimum capital of € 3006.00. In this case when it comes time to grant a loan, banks require the partners or directors to  provide personal guarantees.

    Taxes:

     Self-employed individual can obtain directly the benefits of their business and be taxed in the income tax. However, the limited is taxed through corporation tax.

    Number of members:
    
    More than one person trading together usually makes a company, although  law envisages the possibility of one-person limited companies, consisting of a single person or entity.

    Social Security and Taxes formalities:

    To commence a business as a sole trader is much faster and easier than opting for a limited company. As a self-employed you just need to register within the Treasure Department and start paying taxes and social security fees. As a limited company, you need to first establish the company- through the granting of a Notary deed and register it in the Commercial Registry- and also perform registration at Taxes and Labour departments, basically.
    
    Some independent proffessional can pay fees to the Proffessional Mutual Benefit Society instead of fees to the Social Security.
    
    Bases for calculation of the Social Security fees are published by the Ministry of Finance each year. Therefore, the worker must pay a monthly fee, which varies according to the chosen base. The larger the base, the higher the fee. The type of base and fee wil also have an impact on the volume of coverage that Social Security provides for sickness, disablement and retirement.

    CONCLUSIONS:
 There are not automatical criteria for deciding between self-employed and limited company. The most  advantageous option depends on the specific circumnstances of each one.
    
    A tip: If you are starting an activity and are not sure of its viability, better to choose to be a self-employed with a low base and see what happens.... who knows? You may become a multinational company in the future...

By Jesús Castro and María L de Castro

Tossa del Mar by Brieanddylan at Flickr.com

The tenure as manager of a corporation or limited in Spain will bring significant obligations and responsibilities that need to be known before accepting the appointment.

The post of administrator, regardless of the administration system chosen by the company (either as sole director, mutual, pooled or board), involves a chain of obligations under Spanish Commercial Law. To this end, numerous Court decisions have been delimiting , within the daily life of corporations, the actual content of voices such as  loyalty, non-competition or diligence of an orderly businessman. Similarly, the new Bankruptcy Act (in force since 1 September 2004) has also introduced new criteria for the allocation of responsibilities to managers of insolvent companies. 

The injured party must prove the damage, once established, it is presumed "rebuttable" that the same has occurred for reasons attributable to those responsible for the building process.

The action is granted to the owners and third party purchasers of buildings or part thereof, in case they are subject to division.
 
The action regarding the buildings standing in horizontal property regime rests with the president of the community of owners. Therefore , the decission to claim against construction defects or vices covered in the Building Act must  be agreed in general meeting .The president is the legal representative of the community, with sufficient capacity to grant power of attorney to solicitors and barristers and hold the representation in Courts.

The action can be directed against: developer, builder, designer, project manager or director of commission work under his purview.

We must differentiate between  direct  action against  the building agents and the  internal  action among the stakeholders in the process against the ultimate responsible for damages.

 When it is impossible to identify the cause/causer of the damage, or  it is proved the existence of guilt without being able to specify the degree of involvement of each party,  the liability is joint and several.

The grounds for exemption from liability are accident, force majeure, act of third parties or of the injured himself.

( See here Part I of this serie on Building defects)

Cadiz Carnaval Chorus by Lograi at Flickr.com

The article of the General Building Act which specifies the legal action for different sorts of building defects is:

Article 17: Civil liability of the agents that intervene in the building process.

c.4) Any other functional aspects of the building elements or the installations that will enable a satisfying use of the building.

Prior to the entry into force of the  Building Act (6 May 2000), the material damage in the process of building (construction defect or defect) had its legal basis in art. 1591 of the Civil Code, or rather, in the extensive Supreme Court Case Law, which created the concept of accountability by serious building defect (ruina).

"... The concept of ruin,  is not the restrictive  one which means the total  destruction of the work, but one much broader: that of  a functional ruin which reaches either the whole building or part of it, exceding the level of just  current imperfections. The doctrine of this Court is settled: serious defects that  make possible the loss of the property or make it useless for the purpose which is proper, as well as those who, by exceeding current imperfections, entail a violation of the ontract or affect the livability of the building.

By Maria de Castro

The Justice Department will train 13,000  staff in the new model of judicial organization, as envisaged in the "Strategic Plan for Modernization of the Justice System 2009-2012".

Yesterday, it began a course to train 81 staff of the bodies of Judicial and Administrative Procedures and Management and Legal Aid, who will become trainers of their colleagues. It is the greatest formation action in the history of the Justice Department in Spain.  

This training course for officials will be supplemented with other for clerks starting on the next  February, the 15th.

Yes, we are getting there!

www.costaluzlawyers.es

Carnaval de Cádiz. By JuanJaén at Flickr.com 

For family Saturday moments Love, Maria

* Harsher penalties against urban corruption, bribery, tax offenses, urban and environmental crimes.

 * From now on private bribery will also be a crime. It will also be a crime the silencing or obscuring of illegal works by authorities. The purpose of this is to halt illegal construction and all subsequent costs of demolition.

 * Another important development is the direct criminal responsibility of companies, which will now be able to commit crimes and their properties will be seized for this reason.

  * Prescription deadline of crimes is increased to five years. 

  * Terrorist killings are equaled to crimes against humanity and will have no prescription deadline.

  * New crimes as jihadism and murders will have no prescription deadline.  They used to prescribe after 30 years from commission before this reform.

  * There are also new probation measures when terrorists serve their sentences in order to prevent recidivism and protect victims for up to 10 years.  This regime will be set by judges in light of the circumstances of the case and will be used monitoring media such as GPS bracelets.

* The new criminal code hardens the treatment of sex offenders, rapists and generally of those who abuse children or recruit minors for pornographic performances. Probation shall apply in a similar sense to terrorists.  Customers of minors’ prostitution or of persons unable to decide for themselves will also be sentenced. As with terrorism, sex offenders with sentences of more than five years may not obtain third grade until serving half of his sentence. Sentences of up to 15 years of imprisonment and even deprivation of parental authority will be imposed to parents in order to protect children from abuse.

* The nee Code also hardens the crime of  women trafficking and criminal aliens serving less than six years may be expelled from between three and ten years. All in compliance with international obligations assumed by Spain in the European framework, which requires adjustments of our criminal law.

*Illegal trafficking of organs is also hardened. The reason for this is preventive in a country that is leader in number of transplants for the efficiency of the system. While in our culture, it is not conceived the payment for organs, it should be noted that in some countries is a scourge as drug, existing mafias which revolve around it.

A tower  on the wall of Tossa del Mar, by neilalderney123 at Flickr.com

The number of registered foreigners in Spain is of 5.6 million, of which 2.3 are EU citizens.
Migration has been strongly reduced: from 480,000 in 2008 to 80,000 foreigners last year, according to the Yearbook of Immigration in Spain, which has been submitted to the Ministry of Labor.

But Professor Josep Oliver, professor of Economics at the Autonomous University of Barcelona warns that this will pick up, although with less intensity. "The demographics of the country suggest that after the crisis, we will have a flood of immigrants, but with different characteristics: young skilled and medium-skilled women and similar age to help the aging population."

Along with that segment of Spanish-speaking foreigners working for the care of our elderly people there is also a different coming reality which will also create work posts:

I see as very likely that mostly Northern European foreign population will eventually occupy most of the stock of coastal-tourism housing which is unsold as of today. This population will be demanding bilingual speaking quality services that do not exist to this day.

Are you coming?

Maria

www.costaluzlawyers.es

Tossa del Mar by pmmueller at Flickr.com

3. Negotiation requires some attitudes:  honest auto-examination ( maybe with the help of an external objective viewer) ,empathy, flexibility, patience, emotional distance or dettachment and a wish to get to a win-win end.

2. Negotiation requires first, the honest and truthful will to negotiate.

1. This will requires first the clear idea on the benefits of a negotiated solution.

                                            _______

1. Confidence on benefits---- 2. Will to negotiate--- 3.Right attitudes for negotiation

                                                                                      ___________

1. Understanding negotiation 2. Willing to negotiate 3.  Practising negotiation.

All this with a good dosis of  good mood and de-emphatising 

Maria

www.costaluzlawyers.es

Beach at Tossa del Mar by Neilalderney123 at Flickr.com

 We are also ready to work on building agreements between developers and our clients, always provided:

- Developers acknowledge the unbalance, unfair terms of the contracts they produced during the real estate crazy-fiesta-boom.

- They compensate clients with duly  price reductions.

- Clear statements on what amenities will be finally build and specific schedule on timing for the delivery of these.

We are sending a general offer to the main developers today and we will be communciating what their answers are. Let´s hope we cand find and reach to the point of mutual satisfaction.

Maria L. de Castro

www.costaluzlawyers.es

Fondales- La Taha- Alpujarras-Granada by Alpujarramagazine.com at Flickr.com

We are not proffessionals who base all the reason of their activities on benefits but on growing in expertise, prestigy and  trust through comitted and honest work. This way, we aim to have a long proffessional life for all of us, the members of the team and many other ones who might arrive.

We need to cover the expenses coming out of our salaries, of the running of the company, of the hiring of the litigation experts, and some social/cultural sponsorhips that´s why we cannot work on a radical no win no fee basis.

But we are still very reasonably priced.

We start with an initial provision of funds to try to reach an agreement with developer/Bank/ counterparty. If the desired settlement is not achieved, we then need to resort to litigation.

At this stage ,our fees are for a 5% ( including the initial provision of funds already paid, so actuallu will be:

5% (less provision of funds already paid)

of the claim as provision of funds. No more funds are asked by us till we reach a solution for you through all the necessary means and proceedings:

- Contract cancellations and appeals up to Europe passing through the Supreme Court. Counterclaims if in between, developer decided to sue against you.

- Registration as creditor in creditor´s meetings ( if this happened to your developer) and defense of your credit for a high classification.  We also cover every appeal required here, again till Europe through the Supreme Court.

- If you were not given a Bank Guarantee when you were buying: actions against the Insurance Company of every proffessional involved ( agents, solicitor, developer, Bank..)  for proffessional negligency with the aim to recoup the deposit plus legal interests.

We are about to finalise an online system by which you will have  Internet access to the status of your case 24/7.

We do honestly think we offer quite a good service for our 5%.

Best regards,

Maria

Sevilla Alcazar Palace by SteelSkyBlue at Flickr.com