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Your daily Spanish Law reporter. Have it with a cafe con leche. www.costaluzlawyers.es

Small claims procedure (SCP) in Spain. "Monitorios"
15 September 2008 @ 16:39

Small claims procedure (SCP) in Spain. "Monitorios"

SCP ( Small Claim Procedure) is a special judicial procedure for claims adding up to 30.050,61 €.  The debt needs to be documented. 

The document: can be of any sort, form or physical support . It needs to be signed by the debtor, stamped by him, or just marked by any physical or electronic signal.

 Bills, invoices, reception statements, certificates... are also allowed. They just need to prove a
commercial relationship between debtor and creditor. 

A lawyer and a Procurator of Tribunals are just needed if the debtor opposes the payment of the debt and/or the claimed amount adds more than 901,52 €.

How is the procedure? 

1.- Initial petition  to the First Instance Judge. Lawyer and Procurator of Tribunals are not required here ( but advisable). The petition needs to contain indications of debtor´s personal data and address, origin and amount of the debt and document which proves the claim.

2.- Courts notify the claim to debtor for a voluntary payment within 20 days. The debtor can also oposse the debt within those 20 days, giving enough legal reasons for the opossition to the payment.

3.- The debtor can choose between:

   a) Doing nothing. Not pay nor oppose the debt. The Judge will order execution of the debt against debtor´s assets.

   b)  Pay the debt

   c) Oppose the debt, with the intervention of a lawyer and a Procurator of Tribunals.

The judge will convoke the parties for a Court Hearing.

Hope this helps!

 

By Maria L. de Castro

web@costaluzlawyers.es

www.costaluzlawyers.es

 

 



Like 0      




91 Comments

Rob in Madrid said:
17 September 2008 @ 11:03

Wow, that's quite a high amount! In Canada and the US I believe the limit is closer to $5000.

What happens if the person has no assets, say someone who got laid off, lost the house to forclouser and then is having problems pay the rent?

Does this include rentals, ie you can't pay the rent?


Maria said:
17 September 2008 @ 11:57

If someone cannot pay the rent, the owner will probably start an action for both unpaid rents and eviction.

There are Insurance policies for unpaid rents


neha said:
29 October 2008 @ 09:40

Hi Maria,

Our company is based in England and we have sell alot in Spain. Unfortunately I have a few clients that will not pay me. For various reasons.

How can I make a small claim against them from the UK?

I have invoices sent to them and proof of shipping goods.

Thanks
Neha


Maria said:
31 October 2008 @ 08:01

What do you sell? How do you sell it?

You might grant Power of Attorney to someone to do it on your behalf here in Spain.

Best,

Maria


neha said:
14 November 2008 @ 16:36

We sell beachwear. On a wholesale basis.
Invoice from the UK.

How much would it cost us to grant power of attorney to someone?

Can you suggest someone?

Can we not do it ourselves?

Where can I start the proceedings?

thanks
Neha


catherine sinclair said:
17 November 2008 @ 15:40

I have a complaint with a holiday company from uk I booked my holiday online.I am British but live in Spain.I have been in touch with consumer advice and they have told me that I must take this mater up with small claims courts.I live in Palma de Mallorca.Can you tell me were I go from here.


neha said:
22 November 2008 @ 13:53

Hi Catherine,

You can check http://www.citizensadvice.org.uk.
Search google Small Claims Court in the UK and you will get all the info on how to proceed in the UK.

Neha


Maria said:
25 November 2008 @ 14:04

You need to proceed accorring to UK law in this case, as Neha has very rightly pointed out(during my flu absence) to you.

Thanks Neha!

Maria


Matt said:
27 November 2008 @ 16:59

Hi Maria,

I have been chasing a debt of some 8000€ for my professional services given to a well established firm in Madrid. They claim they have not been paid by so cannot pay me. Part of the debt is now 4 months old.

I understand their predicament but is this fair? Should I look at recovery through a small claims court?


Maria said:
27 November 2008 @ 17:20

Certainly yes.
Maria


Neha said:
20 January 2009 @ 12:56

Hi Maria,

Can you email me at info@kasuku.co.uk. your costs? We need a letter presented to a client who won't pay us and 2 small claims? I can explain more in details by email.

Thanks
Neha




Neha said:
20 January 2009 @ 12:57

Hi Maria,

Can you email me at info@kasuku.co.uk. your costs? We need a letter presented to a client who won't pay us and 2 small claims? I can explain more in details by email.

Thanks
Neha




maria said:
20 January 2009 @ 13:49

Emailed


Kerouac said:
29 January 2009 @ 13:59

I am wondering what to do about an article ordered from a Spanish company over the internet. It was never received. The company replied to my first request saying that "Christmas mail" had delayed the order, but I have had no reply at all to my two follow-up requests. It is only a matter of 45 euros, but I would at least like to inform the company that some sort of action can be taken against them. Or should I just forget the 45 euros?


Maria said:
29 January 2009 @ 14:03

Have you tried the Local Town´s Consumers Office?


julie said:
02 February 2009 @ 18:44

hi maria
just looking at peoples comments who are owed money.i am owed money a 1000 refundable deposit that the debtor knows i am entitled to have back and wont pay it back.i am in england and move out to spain in april.my debtor already is in spain,its over a home in spain.is it easier to deal with it whilst in england or wait until i am in spain in april.its been going on now since november 08.what do you advice


Ian Parker said:
17 February 2009 @ 11:06

Dear Maria,

I paid a deposit to a villa rental company in August 2008 of 850 euros. The company has been placed into administration having gone bankrupt. I was given a spanish lawyers name to submit a claim to, which I have done 3 times now and not received a single reply from the lawyers.

Is there anything that I can do in order to claim my money back?

Thank you in anticipation,

Ian



Maria said:
17 February 2009 @ 11:45

I would need to see the contract and receipt of payment. Pleas email them to me to contact details contained in our website.
Best regards,
Maria


Nicky said:
17 February 2009 @ 12:42

My Spanish husband has an English joint account with his ex (also Spanish), which was £750 overdrawn when they split up 5 years ago. We are paying the monthly fees and interest, and his ex has not paid anything into the account since the split. Under English law they are jointly liable for the whole debt. Can he recover half of this money from his ex through the Small Claims court in Spain? It doesn't seem fair that we have to pay it all to avoid credit blacklisting, especially since we've been paying all the bank charges.


Nicky said:
17 February 2009 @ 12:50

My Spanish husband has an English joint account with his ex (also Spanish), which was £750 overdrawn when they split up 5 years ago. We are paying the monthly fees and interest, and his ex has not paid anything into the account since the split. Under English law they are jointly liable for the whole debt. Can he recover half of this money from his ex through the Small Claims court in Spain? It doesn't seem fair that we have to pay it all to avoid credit blacklisting, especially since we've been paying all the bank charges.


Nicky said:
17 February 2009 @ 14:48

My Spanish husband has an English joint account with his ex (also Spanish), which was £750 overdrawn when they split up 5 years ago. We are paying the monthly fees and interest, and his ex has not paid anything into the account since the split. Under English law they are jointly liable for the whole debt. Can he recover half of this money from his ex through the Small Claims court in Spain? It doesn't seem fair that we have to pay it all to avoid credit blacklisting, especially since we've been paying all the bank charges.


Maria said:
19 February 2009 @ 08:18

AS it is an English account, it needs to be considered under UK Law.


Nicky said:
19 February 2009 @ 23:50

Is this still the case even though both parties are Spanish and resident in Spain?


Maria said:
20 February 2009 @ 05:53

Oh yes Nicky, I considered it wrongly. Yes, your husband will certainly be able to go through the monitorio system.

Best,

Maria


Nicky said:
27 February 2009 @ 07:57

Many thanks!


James said:
01 April 2009 @ 20:51

Hey Maria,

I have a Spanish rental contract, which was created by a letting agency and signed by the landlord and myself - it describes the terms of the letting, including the amount of the deposit that I paid at the start and which is to be refunded to me at the end of the rental period.

The rental period is now ended but the landlord did not refund the deposit even though he has no reason to do this.

Unfortunately, I cannot find the receipt that proves that I paid a deposit to the agency who then gave it to the landlord. I only have the signed contract.

Do you think I would need the receipt to really prove that I paid the deposit - or is the rental contract sufficient?




Thomas said:
03 April 2009 @ 17:26

Hi Maria,

We are considering going through the monitorio system to get a 200 Euro deposit back that was unfairly kept from us for a holiday rental property. We read that if the debtor opposes to pay, we need a lawyer and procurator of tribunals to intervene. At who's cost would that be? Or do you think it's better to go through the local consumer office for this amount, and does their decision have any legal effect?
Thanks very much!
Thomas


Adam Simmons said:
12 April 2009 @ 15:51

I have an interesting situation. A house I was going to rent in Spain is about to be foreclosed by the bank. The (now ex) landlord agreed by email that he would pay my out of pocket expenses for an extra trip to Spain if I took no action under the rental contract. That contract, however, shows no penatlies if the landlord cancels the contract. My question is this: does my proposal (by email) to pay me for the extra trip and his acceptance (by reply email) constitute a new contract enforceable under the "monitorios" procedure? Thanks!


Maria said:
13 April 2009 @ 17:53

Apologies to you three for the late response: vacations.
James: I need to see the contract that you signed.
Thomas: Go to your nearest OMIC ( Local Consumer´s Information office) for more information.
Adam: It does.


Adam Simmons said:
14 April 2009 @ 06:09

Hi María,

Thank you very much.

Adam


Maria said:
17 April 2009 @ 11:02

A pleasure.
Maria


Thomas said:
19 April 2009 @ 21:38

Hi Maria,
Thank you for your answer, wish us luck!

Thomas


John said:
15 May 2009 @ 11:27

Hi Maria,

Within the 20 days, the debtor can oppose the debt. But what if you have all the proofs to support your claim like facturas, notarial demand, burofax etc? Will the judge review your claim at this level based on the document presented or will automatically go to court since the debtor oppose the debt?

Appreciate your reply. Thank you.


John said:
15 May 2009 @ 12:02

Hi Maria,

Within the 20 days, the debtor can oppose the debt. But what if you have all the proofs to support your claim like facturas, notarial demand, burofax etc? Will the judge review your claim at this level based on the document presented or will automatically go to court since the debtor oppose the debt?

Appreciate your reply. Thank you.


Maria said:
18 May 2009 @ 12:27

John:
If the debtor opposes, the issue will go to Courts.
Maria


John said:
19 May 2009 @ 12:33

Thanks, Maria.

Just to clarify - regardless of the merits of the supporting documents you present to the judge for as long as the debtor opposes, the matter goes to Court? Is this right? How long will cases like this take?

Thanks again.


Maria said:
19 May 2009 @ 12:36

It is right. Cases like these can take from 6 to 24 months. You can ask the debtor if he wants to submitt the contract that the debt arises from to arbitration for a more speedy solution of the case.


John said:
20 May 2009 @ 13:32

Hi Maria, is the contract supposed to be notarised after both parties signed for us to be able to submit it for arbitration? Because what I have is not. But it was signed by both parties.


Cory said:
15 June 2009 @ 20:19

Hi Maria,
I made reservations at a hotel in Barcelona last year for several rooms and paid 850 euros as a deposit. Our plans changed and I canceled the reservations with more than the required seven days notice, but I was never given a refund. I have exchanged emails with the manager and he promised to look into it, but now, months later, won't answer my emails. I live in the States, however, so my question is whether or not it would be possible to use a small claims procedure to try to get the refund returned from a distance, or do I need to be in Spain?
Thanks, Cory


Maria said:
16 June 2009 @ 08:43

You can do it in the distance, but will have to use a Lawyer.


Cory Winn said:
16 June 2009 @ 17:16

Can you recommend a lawyer? Thanks, Cory


Maria said:
17 June 2009 @ 12:24

We would be able to assist you. Could you please email to my external email address your documents? They might react against a lawyers´letter.


Cory said:
18 June 2009 @ 21:05

Thanks Maria! They seem to be reacting to the letter I sent them stating that I was going to be proceeding with a small claims procedure, so that might be all it takes, but if they don't follow through, I will email you the documents. Thanks again, Cory




Maria said:
19 June 2009 @ 08:31

Those are wonderful news!


Caroline said:
03 September 2009 @ 07:49

Hi, Please can you tell me if I can claim against someone who is now living in Spain but was living in my house in the UK (renting) and owes more than 7,000 pounds in unpaid rent arrears. His name was on the tenancy contract. He is a Director of an Algarve property company (which is a UK registered business) but he does reside in Spain, so I cannot pursue him through the UK Small Claims Court.

Help??!!


Maria said:
03 September 2009 @ 08:20

What jurisdiction was the contract under to?


Caroline said:
03 September 2009 @ 08:39

Hi Maria, the contract was a UK tenancy agreement (signed by the man and his wife) but the debtor now lives in Spain. Hope that helps?


Caroline said:
03 September 2009 @ 08:41

Hi Maria, the contract was a UK tenancy agreement (signed by the man and his wife) but the debtor now lives in Spain. Hope that helps?


Maria said:
03 September 2009 @ 08:51

You need to claim in the UK. Then you can execute the decission here in Spain.


Caroline said:
03 September 2009 @ 09:04

Hi Maria, the contract was a UK tenancy agreement (signed by the man and his wife) but the debtor now lives in Spain. Hope that helps?


Caroline said:
03 September 2009 @ 10:43

Hi Maria, the contract was a UK tenancy agreement (signed by the man and his wife) but the debtor now lives in Spain. Hope that helps?


Thomas Johannsen said:
08 September 2009 @ 10:54

Dear Sir/madam

I need your advise- I believe I have been dismissed from work on unfair grounds- Secondly I feel that my previous employer have not been fair and just to me regarding the dismissal and my remuneration - I started working for Civil Aviation Academy ( Costa Blanca Flight training Center) in august 2008

Costa Blanca Flight Training Center SL – B 537 55 666 Avd.San Rafael 23 03580 Alfaz del Pi Spain

I was employed as a Flight Operations Manager under training terms that would pay me a basic allowance of 500 Euros cash PER MONTH and equivalent of 1000 Euro PER MONTH towards the completion of my pilot education including flight instructor rating, multi engine rating etc. shared accommodation was provided for me. The intention was for me to continue employment upon completion of my instructor rating and commence instruction of pilots as part of my assigned duties in addition to the duties already assigned.

No contract was presented to me for the first few months – however a promise was made to us ( my colleague and me) of one, in October 08- however the draft contract materialized in the beginning of January 2009 – which contained a few minor errors, such as start date (See attached)

During my employment term I worked very hard at establishing myself in the role whilst completing my theoretical exams towards the Airline Transport Pilot License.

In the period august 08 to march 09 I managed to study for and pass the final 11 exams out of 14.Whilst still working full time often 40 to 55 hours a week – I was only contracted to work 40 hours a week.

Admittedly, I have been allowed on occasions where workload permitted to either take my books into the office for studies or in some cases to take time off and study at home. So I reckon that the hours that I have put in as overtime balances out with my “study time” and time off given for my exams -

In December the flight school closed down in the Christmas period and re-opened in January-

I was surprised to find out that I was not to receive any payments for this period of time –my contract states that it should be in line with Spanish regulation - however advance payment was made to me. So I was able to travel home to visit my family over the Christmas and subsequently attend my exams which were held in the beginning of January.

Other advances have been paid out to me primarily in connection with my exams – or in connection with travel at work. The company also paid for 2 speeding tickets issued to me whilst on work duty.

I have been an employee for nine months and should therefore have accumulated 9000 Euros towards my flight training.

I have not received ANY training towards my Commercial Pilot License and ratings –apart from the aforementioned contributions towards my ATPL theoretical exams amounting to less than 1000euros.

I received a letter on the 23 of April – advising me that I was not continuing in my current position with effect from the 1 of May and that the day’s in-between would be considered as my total holiday entitlement- see attached. I disagree with this calculation and find that this will leave me short of my accumulated holiday entitlement.

I also recon that my dismissal is on false terms- reason for dismissal is, according to the company – the need to balance advance payments I have received as an employee. ..And ..that the training plan cannot be effectuated since the financial and time aspect have changed-

until the receipt of the notification letter I was led to believe that I was attending flight training in the end of April/beginning of may 2009 to take place in the UK- with the intend to complete my Commercial Pilot License skills test and multi engine rating followed by my instructor rating.

Coincidently the company hired a qualified flight Instructor on a similar training terms as I in April 09.

I was advised that the end balance would be paid to me on the 28 of April 2009 – since the financial responsible would need some time to calculate the balance - I have to date not received this balance nor even a breakdown of the calculations made to reach a balance- despite numerous emails telephone calls and voice mail messages on my behalf - for the last week there has been no replies what so ever to my numerous email regarding this issue. (See attached)I did receive a cash payment in advance however on the 23 April 09 corresponding to April salary due 28 April 09- in order so I could travel back to the UK.

Based on my own internet research I have found that :

Where the employee does not agree with the employer's decision, he may file a demand for conciliation before the arbitration office (Servicio de Mediación, Arbitraje y Conciliación) within 20 days upon receipt of the dismissal letter, in this way both sides may settle a reconciliation. If this fails then the employee must place a suit before the Labor Courts.

The employer shall notify the dismissal in writing to the employee within at least 30 days before the date in which the dismissal shall take effect. The employee shall receive an indemnity equal to 20 days of salary.

The main sources of law for termination of employment in Spain are the Workers’ Charter, [1] Royal Decree 2546/1994 of 29 December on recruitment, and Royal Legislative Decree 2/1995, which adopts the text which is recast in the Labour Procedure Act (LPA). In addition, art. 35 of the Spanish Constitution states that “all Spaniards have the duty to work and the right to work, to the free selection of their profession or office career, to advancement through work and to sufficient remuneration to satisfy their needs and those of their family, while in no case can there be discrimination for reasons of sex”. Some collective agreements also deal with this subject.

In 1985, Spain ratified the ILO Termination of Employment Convention, 1982 (No. 158).

Contracts of employment

A contract of employment is one in which a person provides service on behalf of and within the context of the organization and direction of another in exchange for pay. The employment contract may be concluded in writing or orally (sec. 8, Workers’ Charter).

Contracts for a specified period over four weeks must be made in writing (sec. 8(2), Workers’ Charter).

The employment contract may be concluded for an indeterminate or specific period (sec. 15(1),[2] Workers’ Charter). Fixed-term contracts can be concluded only in the following cases:

When worker is hired to conclude a specific project or service, which is considered to be autonomous yet within the normal business activities of the employer and whose execution, although limited in the time, is in principle of unknown duration.
When business demands are high and resources are stretched or there is backlog, even though the work maybe within the normal line of business of the employer. In such cases, contracts can be concluded for a maximum of 6 months within a twelve-month period. In some cases, the maximum length can be up to 18 months if worker’s union agreement so stipulates;
When the contractor substitutes a worker entitled to return to work after leave (the name of the person being substituted and the reasons for temporary replacement must always be included in the contract)[3].
Sec. 14 of the Workers’ Charter provides for the possibility of written agreement on a probation period, the duration of which may not exceed six months for skilled technicians, or two months for other workers. In enterprises employing fewer than 25 workers the probation period may not exceed three months for workers who are not skilled technicians.

Notice and prior procedural safeguards

Termination of the employment contract for objective reasons requires the observance of the following criteria (sec. 53(1), Workers’ Charter):

written communication to be given to the worker explaining the reason;
payment to made to the worker, at the same time at which the written communication is handed over, of compensation corresponding to 20 days for each year of service (periods of time under one year are to be prorated by months), up to a maximum sum of 12 months’ pay; and
granting to the worker a 30-day notice period.
In the case of termination of employment for misconduct, the dismissal must be notified in writing to the worker, stating the facts justifying the dismissal and indicating the date on which the employment relationship will end (sec. 55(1), Workers’ Charter).

Severance pay
Workers dismissed for valid reasons receive compensation of 20 days’ wages for each year of service, up to a maximum sum of 12 months’ pay (for periods of service under a year, this is prorated by the number of months of service) (sec. 53(1)(b), Workers’ Charter).

Workers who are unlawfully dismissed receive compensation of 45 days’ wages for each year of service, up to a maximum of 42 months’ pay (for periods under a year, this is prorated by the number of months of service). Compensation will also be awarded for the sum of the outstanding wages from the date of dismissal up to notification of the decision that the dismissal was unlawful or until the worker has found alternative employment if such placement took place before the decision was handed down.



Summary



I would like you to advise me, firstly if you deem that I have a case strong enough to pursue, and if this is the case then, how do I proceed to file a demand for conciliation.

Lastly will I qualify for legal aid, I am now unemployed and without any means.



Kind regards

Thomas Johannsen





Thomas Johannsen said:
08 September 2009 @ 11:04

Dear Sir/madam

I need your advise- I believe I have been dismissed from work on unfair grounds- Secondly I feel that my previous employer have not been fair and just to me regarding the dismissal and my remuneration - I started working for Civil Aviation Academy ( Costa Blanca Flight training Center) in august 2008

Costa Blanca Flight Training Center SL – B 537 55 666 Avd.San Rafael 23 03580 Alfaz del Pi Spain

I was employed as a Flight Operations Manager under training terms that would pay me a basic allowance of 500 Euros cash PER MONTH and equivalent of 1000 Euro PER MONTH towards the completion of my pilot education including flight instructor rating, multi engine rating etc. shared accommodation was provided for me. The intention was for me to continue employment upon completion of my instructor rating and commence instruction of pilots as part of my assigned duties in addition to the duties already assigned.

No contract was presented to me for the first few months – however a promise was made to us ( my colleague and me) of one, in October 08- however the draft contract materialized in the beginning of January 2009 – which contained a few minor errors, such as start date (See attached)

During my employment term I worked very hard at establishing myself in the role whilst completing my theoretical exams towards the Airline Transport Pilot License.

In the period august 08 to march 09 I managed to study for and pass the final 11 exams out of 14.Whilst still working full time often 40 to 55 hours a week – I was only contracted to work 40 hours a week.

Admittedly, I have been allowed on occasions where workload permitted to either take my books into the office for studies or in some cases to take time off and study at home. So I reckon that the hours that I have put in as overtime balances out with my “study time” and time off given for my exams -

In December the flight school closed down in the Christmas period and re-opened in January-

I was surprised to find out that I was not to receive any payments for this period of time –my contract states that it should be in line with Spanish regulation - however advance payment was made to me. So I was able to travel home to visit my family over the Christmas and subsequently attend my exams which were held in the beginning of January.

Other advances have been paid out to me primarily in connection with my exams – or in connection with travel at work. The company also paid for 2 speeding tickets issued to me whilst on work duty.

I have been an employee for nine months and should therefore have accumulated 9000 Euros towards my flight training.

I have not received ANY training towards my Commercial Pilot License and ratings –apart from the aforementioned contributions towards my ATPL theoretical exams amounting to less than 1000euros.

I received a letter on the 23 of April – advising me that I was not continuing in my current position with effect from the 1 of May and that the day’s in-between would be considered as my total holiday entitlement- see attached. I disagree with this calculation and find that this will leave me short of my accumulated holiday entitlement.

I also recon that my dismissal is on false terms- reason for dismissal is, according to the company – the need to balance advance payments I have received as an employee. ..And ..that the training plan cannot be effectuated since the financial and time aspect have changed-

until the receipt of the notification letter I was led to believe that I was attending flight training in the end of April/beginning of may 2009 to take place in the UK- with the intend to complete my Commercial Pilot License skills test and multi engine rating followed by my instructor rating.

Coincidently the company hired a qualified flight Instructor on a similar training terms as I in April 09.

I was advised that the end balance would be paid to me on the 28 of April 2009 – since the financial responsible would need some time to calculate the balance - I have to date not received this balance nor even a breakdown of the calculations made to reach a balance- despite numerous emails telephone calls and voice mail messages on my behalf - for the last week there has been no replies what so ever to my numerous email regarding this issue. (See attached)I did receive a cash payment in advance however on the 23 April 09 corresponding to April salary due 28 April 09- in order so I could travel back to the UK.

Based on my own internet research I have found that :

Where the employee does not agree with the employer's decision, he may file a demand for conciliation before the arbitration office (Servicio de Mediación, Arbitraje y Conciliación) within 20 days upon receipt of the dismissal letter, in this way both sides may settle a reconciliation. If this fails then the employee must place a suit before the Labor Courts.

The employer shall notify the dismissal in writing to the employee within at least 30 days before the date in which the dismissal shall take effect. The employee shall receive an indemnity equal to 20 days of salary.

The main sources of law for termination of employment in Spain are the Workers’ Charter, [1] Royal Decree 2546/1994 of 29 December on recruitment, and Royal Legislative Decree 2/1995, which adopts the text which is recast in the Labour Procedure Act (LPA). In addition, art. 35 of the Spanish Constitution states that “all Spaniards have the duty to work and the right to work, to the free selection of their profession or office career, to advancement through work and to sufficient remuneration to satisfy their needs and those of their family, while in no case can there be discrimination for reasons of sex”. Some collective agreements also deal with this subject.

In 1985, Spain ratified the ILO Termination of Employment Convention, 1982 (No. 158).

Contracts of employment

A contract of employment is one in which a person provides service on behalf of and within the context of the organization and direction of another in exchange for pay. The employment contract may be concluded in writing or orally (sec. 8, Workers’ Charter).

Contracts for a specified period over four weeks must be made in writing (sec. 8(2), Workers’ Charter).

The employment contract may be concluded for an indeterminate or specific period (sec. 15(1),[2] Workers’ Charter). Fixed-term contracts can be concluded only in the following cases:

When worker is hired to conclude a specific project or service, which is considered to be autonomous yet within the normal business activities of the employer and whose execution, although limited in the time, is in principle of unknown duration.
When business demands are high and resources are stretched or there is backlog, even though the work maybe within the normal line of business of the employer. In such cases, contracts can be concluded for a maximum of 6 months within a twelve-month period. In some cases, the maximum length can be up to 18 months if worker’s union agreement so stipulates;
When the contractor substitutes a worker entitled to return to work after leave (the name of the person being substituted and the reasons for temporary replacement must always be included in the contract)[3].
Sec. 14 of the Workers’ Charter provides for the possibility of written agreement on a probation period, the duration of which may not exceed six months for skilled technicians, or two months for other workers. In enterprises employing fewer than 25 workers the probation period may not exceed three months for workers who are not skilled technicians.

Notice and prior procedural safeguards

Termination of the employment contract for objective reasons requires the observance of the following criteria (sec. 53(1), Workers’ Charter):

written communication to be given to the worker explaining the reason;
payment to made to the worker, at the same time at which the written communication is handed over, of compensation corresponding to 20 days for each year of service (periods of time under one year are to be prorated by months), up to a maximum sum of 12 months’ pay; and
granting to the worker a 30-day notice period.
In the case of termination of employment for misconduct, the dismissal must be notified in writing to the worker, stating the facts justifying the dismissal and indicating the date on which the employment relationship will end (sec. 55(1), Workers’ Charter).

Severance pay
Workers dismissed for valid reasons receive compensation of 20 days’ wages for each year of service, up to a maximum sum of 12 months’ pay (for periods of service under a year, this is prorated by the number of months of service) (sec. 53(1)(b), Workers’ Charter).

Workers who are unlawfully dismissed receive compensation of 45 days’ wages for each year of service, up to a maximum of 42 months’ pay (for periods under a year, this is prorated by the number of months of service). Compensation will also be awarded for the sum of the outstanding wages from the date of dismissal up to notification of the decision that the dismissal was unlawful or until the worker has found alternative employment if such placement took place before the decision was handed down.



Summary



I would like you to advise me, firstly if you deem that I have a case strong enough to pursue, and if this is the case then, how do I proceed to file a demand for conciliation.

Lastly will I qualify for legal aid, I am now unemployed and without any means.



Kind regards

Thomas Johannsen





Maria said:
08 September 2009 @ 11:04

Would you mind sending to me an email to my external email address. You can find it in our website: www.costaluzlawyers.es.

Best regards,

Maria


Thomas Johannsen said:
08 September 2009 @ 12:55

Dear Sir/madam

I need your advise- I believe I have been dismissed from work on unfair grounds- Secondly I feel that my previous employer have not been fair and just to me regarding the dismissal and my remuneration - I started working for Civil Aviation Academy ( Costa Blanca Flight training Center) in august 2008

Costa Blanca Flight Training Center SL – B 537 55 666 Avd.San Rafael 23 03580 Alfaz del Pi Spain

I was employed as a Flight Operations Manager under training terms that would pay me a basic allowance of 500 Euros cash PER MONTH and equivalent of 1000 Euro PER MONTH towards the completion of my pilot education including flight instructor rating, multi engine rating etc. shared accommodation was provided for me. The intention was for me to continue employment upon completion of my instructor rating and commence instruction of pilots as part of my assigned duties in addition to the duties already assigned.

No contract was presented to me for the first few months – however a promise was made to us ( my colleague and me) of one, in October 08- however the draft contract materialized in the beginning of January 2009 – which contained a few minor errors, such as start date (See attached)

During my employment term I worked very hard at establishing myself in the role whilst completing my theoretical exams towards the Airline Transport Pilot License.

In the period august 08 to march 09 I managed to study for and pass the final 11 exams out of 14.Whilst still working full time often 40 to 55 hours a week – I was only contracted to work 40 hours a week.

Admittedly, I have been allowed on occasions where workload permitted to either take my books into the office for studies or in some cases to take time off and study at home. So I reckon that the hours that I have put in as overtime balances out with my “study time” and time off given for my exams -

In December the flight school closed down in the Christmas period and re-opened in January-

I was surprised to find out that I was not to receive any payments for this period of time –my contract states that it should be in line with Spanish regulation - however advance payment was made to me. So I was able to travel home to visit my family over the Christmas and subsequently attend my exams which were held in the beginning of January.

Other advances have been paid out to me primarily in connection with my exams – or in connection with travel at work. The company also paid for 2 speeding tickets issued to me whilst on work duty.

I have been an employee for nine months and should therefore have accumulated 9000 Euros towards my flight training.

I have not received ANY training towards my Commercial Pilot License and ratings –apart from the aforementioned contributions towards my ATPL theoretical exams amounting to less than 1000euros.

I received a letter on the 23 of April – advising me that I was not continuing in my current position with effect from the 1 of May and that the day’s in-between would be considered as my total holiday entitlement- see attached. I disagree with this calculation and find that this will leave me short of my accumulated holiday entitlement.

I also recon that my dismissal is on false terms- reason for dismissal is, according to the company – the need to balance advance payments I have received as an employee. ..And ..that the training plan cannot be effectuated since the financial and time aspect have changed-

until the receipt of the notification letter I was led to believe that I was attending flight training in the end of April/beginning of may 2009 to take place in the UK- with the intend to complete my Commercial Pilot License skills test and multi engine rating followed by my instructor rating.

Coincidently the company hired a qualified flight Instructor on a similar training terms as I in April 09.

I was advised that the end balance would be paid to me on the 28 of April 2009 – since the financial responsible would need some time to calculate the balance - I have to date not received this balance nor even a breakdown of the calculations made to reach a balance- despite numerous emails telephone calls and voice mail messages on my behalf - for the last week there has been no replies what so ever to my numerous email regarding this issue. (See attached)I did receive a cash payment in advance however on the 23 April 09 corresponding to April salary due 28 April 09- in order so I could travel back to the UK.

Based on my own internet research I have found that :

Where the employee does not agree with the employer's decision, he may file a demand for conciliation before the arbitration office (Servicio de Mediación, Arbitraje y Conciliación) within 20 days upon receipt of the dismissal letter, in this way both sides may settle a reconciliation. If this fails then the employee must place a suit before the Labor Courts.

The employer shall notify the dismissal in writing to the employee within at least 30 days before the date in which the dismissal shall take effect. The employee shall receive an indemnity equal to 20 days of salary.

The main sources of law for termination of employment in Spain are the Workers’ Charter, [1] Royal Decree 2546/1994 of 29 December on recruitment, and Royal Legislative Decree 2/1995, which adopts the text which is recast in the Labour Procedure Act (LPA). In addition, art. 35 of the Spanish Constitution states that “all Spaniards have the duty to work and the right to work, to the free selection of their profession or office career, to advancement through work and to sufficient remuneration to satisfy their needs and those of their family, while in no case can there be discrimination for reasons of sex”. Some collective agreements also deal with this subject.

In 1985, Spain ratified the ILO Termination of Employment Convention, 1982 (No. 158).

Contracts of employment

A contract of employment is one in which a person provides service on behalf of and within the context of the organization and direction of another in exchange for pay. The employment contract may be concluded in writing or orally (sec. 8, Workers’ Charter).

Contracts for a specified period over four weeks must be made in writing (sec. 8(2), Workers’ Charter).

The employment contract may be concluded for an indeterminate or specific period (sec. 15(1),[2] Workers’ Charter). Fixed-term contracts can be concluded only in the following cases:

When worker is hired to conclude a specific project or service, which is considered to be autonomous yet within the normal business activities of the employer and whose execution, although limited in the time, is in principle of unknown duration.
When business demands are high and resources are stretched or there is backlog, even though the work maybe within the normal line of business of the employer. In such cases, contracts can be concluded for a maximum of 6 months within a twelve-month period. In some cases, the maximum length can be up to 18 months if worker’s union agreement so stipulates;
When the contractor substitutes a worker entitled to return to work after leave (the name of the person being substituted and the reasons for temporary replacement must always be included in the contract)[3].
Sec. 14 of the Workers’ Charter provides for the possibility of written agreement on a probation period, the duration of which may not exceed six months for skilled technicians, or two months for other workers. In enterprises employing fewer than 25 workers the probation period may not exceed three months for workers who are not skilled technicians.

Notice and prior procedural safeguards

Termination of the employment contract for objective reasons requires the observance of the following criteria (sec. 53(1), Workers’ Charter):

written communication to be given to the worker explaining the reason;
payment to made to the worker, at the same time at which the written communication is handed over, of compensation corresponding to 20 days for each year of service (periods of time under one year are to be prorated by months), up to a maximum sum of 12 months’ pay; and
granting to the worker a 30-day notice period.
In the case of termination of employment for misconduct, the dismissal must be notified in writing to the worker, stating the facts justifying the dismissal and indicating the date on which the employment relationship will end (sec. 55(1), Workers’ Charter).

Severance pay
Workers dismissed for valid reasons receive compensation of 20 days’ wages for each year of service, up to a maximum sum of 12 months’ pay (for periods of service under a year, this is prorated by the number of months of service) (sec. 53(1)(b), Workers’ Charter).

Workers who are unlawfully dismissed receive compensation of 45 days’ wages for each year of service, up to a maximum of 42 months’ pay (for periods under a year, this is prorated by the number of months of service). Compensation will also be awarded for the sum of the outstanding wages from the date of dismissal up to notification of the decision that the dismissal was unlawful or until the worker has found alternative employment if such placement took place before the decision was handed down.



Summary



I would like you to advise me, firstly if you deem that I have a case strong enough to pursue, and if this is the case then, how do I proceed to file a demand for conciliation.

Lastly will I qualify for legal aid, I am now unemployed and without any means.



Kind regards

Thomas Johannsen





Alan said:
20 October 2009 @ 13:44

Hi Maria

I need some legal advice - I am a translator with a long-standing client in Madrid which owes me nearly €3000 for over 6 months and is refusing to pay.

Can you tell me how to lodge a small claim - can I do it online? Or can you recommend a lawyer in Madrid who I could discuss this with?

Thanks in advance

Alan


Maria said:
28 October 2009 @ 07:43

Dear Thomas and Alan:
If you are still on time, I would appreciate if you could email me to:

web @ costaluzlawyers.es

Thanks,
Maria


ronyag said:
07 April 2010 @ 00:16

hi maria, can you help me please. i have received a call from a spanish lawyer telling me that i owe a finance company 750 euros from june 2001 at a previous address which has long since been sold. aparently,it was a financial agreement over months but i don´t have any more details than that. i don´t recall ever taking out a financial agreement. can you please tell me if they can make claims from that long ago? also, i am a housewife and don´t have any savings nor assetts. thank you. kind regards.


Maria said:
07 April 2010 @ 02:55

Please email me to:
web@costaluzlawyers.es
Thanks,
Maria


Tony Nugent said:
07 April 2010 @ 17:40

Hi Maria,

I am considering taking a claim against a private person for £15,000.00 which I loaned him last year. The person in question resides in the U.K. and in Spain. Since I have a U.K address I am going to explore the U.K legal system. If an order is made against the person to pay back the money owed to me can this be enforced should the person return to reside in Spain?

If it is deemed that the contract of loan is not enforceable in the U.K is there a time limit for bringing a claim in Spain? If so can you please advise of the limit? This is a money owed claim where I have an email from me to the person confirming the loan.

Can you also advise me of your charges to send a letter of request of money owed to the person if this becomes necessary?

my email is tony.nugent@sky.com

Very Kind regards,

Tony



ronyag said:
07 April 2010 @ 23:21

hi maria, can you help me please. i have received a call from a spanish lawyer telling me that i owe a finance company 750 euros from june 2001 at a previous address which has long since been sold. aparently,it was a financial agreement over months but i don´t have any more details than that. i don´t recall ever taking out a financial agreement. can you please tell me if they can make claims from that long ago? also, i am a housewife and don´t have any savings nor assetts. thank you. kind regards.


johnny mason said:
20 June 2010 @ 23:58

jjdm12@gmail.com,jjdm12@hushmail.com

Dear Maria,
I have just been through a case where I was the victim of a viscious attack but I was still prosecuted, luckily the judge saw it was wrong&

I was able to come for a work-holiday in Spain, but was robbed in barcelona after stopping someone else get robbed.
My locker keys were stolen & I had to have my locker opened at the bungalow park I have been staying at, a workman there used a hammer instead or a drill& broke my proffessional camcorder inside worth 600 euros, can I take this to
spanish small claim procedure?


MAria said:
21 June 2010 @ 09:18

Yes, you can.
Better to ask for ptoffessioal indemnity insurance first.
Best regards,
Maria


r davis said:
02 November 2010 @ 17:48

My daughter rented a flat in madrid for six months whilst studying in madrid earlier this year. The landlord has failed to return the deposit or enter into correspondence. What legal proceedings can we threaten him with from the uk

thanks

RD


Max said:
11 November 2010 @ 00:50

I have borrowed a spanish resident in Spain 300 EUR. Conversation about this has been going through MSN and SMS mainly. I had a eye-witness when I was giving the person the money. Since then I have not heard from said person. I am myself not a spanish resident, but EU citizen.

Does this also fall under the small claims court, or would I need some written documents about it?

greetings,
Max


Maria said:
11 November 2010 @ 11:44

RD: A small claim procedure
Max: Yes, you need written support


Max said:
11 November 2010 @ 19:52

Maria,

thank you for the rapid response. Any suggestion on how to approach such a matter where written documentation is not provided except SMS/MSN and the borrower avoids contact?

greetings,
Max


EMMA said:
07 October 2011 @ 13:39

Maria, I have read your blog and its very helpful. I am trying to recover a deposit for an apartment in Lanzarote and I am now living in Tenerife, is there any way I can recover the debt from here or do I have to travel to the court in Lanzarote
Thanks


Sian said:
16 October 2011 @ 16:39

The tenants in my villa have not paid their rent in 3 months. Their contract is due to end in Dec but they have said they want out now. If I go through the small claims process, (the debt to the end of contract will be €4,400) do I need to have the have papers served while they still live there... What is the process?

Many thanks.


Zenda Barlow said:
03 November 2011 @ 21:28

Hi. I bought an apartment in Menorca with an x boyfriend. He wants to sell his share but wants far too much for me to buy it. I have offered him his money back but he laughed at me. He now refuses to pay his share of the bills. Is there anything I can do?


Maria said:
04 November 2011 @ 07:24

Please email me to web@costaluzlawyers.es so I can send to you a form for more information


lee macnab said:
19 December 2011 @ 21:27

hi maria

we have used a local rental agency this summer who despite recieving payment after letting our property have used excuse after excuse not to pay us .

they currently owe us 2000 euro and i need guidance how to claim our outstanding money.

thanks lee


kay said:
03 February 2012 @ 16:59

we have a short term let, with no fixewd time juts a months notice- contract was by email not signed but email confirms contract arrangement we paid deposit and month in advance- she has refused to return the deposit of 750 and has turned very unpleasant- in the meantime we have discovered, that she does not own the flat, she is subletting without the owners permission, also renting at day rates and does not live here basis- is her retaining our money theft, a criminal matter, as it was under false pretences or small claims, we notified the real landlord and have a meeting with him in a few days. kay


kay said:
03 February 2012 @ 17:01

Hi Maria,

We have a short term let, with no fixed time just a months notice- contract was by email not signed but email confirms contract arrangement we paid deposit and month in advance- she has refused to return the deposit of 750 and has turned very unpleasant- in the meantime we have discovered, that she does not own the flat, she is subletting without the owners permission, also renting at day rates and does not live here basis- is her retaining our money theft, a criminal matter, as it was under false pretences or small claims, we notified the real landlord and have a meeting with him in a few days.

Thanks
kay


Maria said:
06 February 2012 @ 15:08

Lee: I would go to the Local Consumers Office
Kay: I would liaise with owner for reporting the illegal activity she is performing and claim your deposit back


kay said:
06 February 2012 @ 18:53

maria, thanks for the comment, will see what the landlord says. what a lovely and helpful blog, very kind of you!


Mr Wright said:
09 March 2012 @ 17:00

Is the 20 day period working days or does saturday and sunday count as part of the 20 day period ?

Many thanks Mr Wright


Artis said:
29 May 2012 @ 17:15

Dear Maria,

Considering the time, effort and costs involved, what is the lowest amount where you think it is still worth to pursue a claim from abroad? We have been owned 225EUR for nearly 7 months now, with lots of promises e-mailed to us, but no money.

In case we must pay certain costs up-front, would a decision in our favour also mean that the debtor must then reimburse our costs associated with the procedure?

Thank you.


Artis said:
29 May 2012 @ 17:16

Dear Maria,

Considering the time, effort and costs involved, what is the lowest amount where you think it is still worth to pursue a claim from abroad? We have been owned 225EUR for nearly 7 months now, with lots of promises e-mailed to us, but no money.

In case we must pay certain costs up-front, would a decision in our favour also mean that the debtor must then reimburse our costs associated with the procedure?

Thank you.


brian handford said:
05 June 2012 @ 23:00

Do you have the URL / Link for the small claims form that need to be filled in to apply to the courts for the process to start?

I have been to http://www.poderjudicial.es/cgpj/en/Judiciary
but it is a total maze for the unqulified!

Thanks

Brian


Maria said:
06 June 2012 @ 15:15

Dear Brian:

Here you have a link:

http://fit-ift.org.dedi303.nur4.host-h.net/downloads/dynamic/compound_text_content/spain_request_form_es_english.pdf


pd kelly said:
14 October 2012 @ 11:09


Hi Maria.Your site is excellent.I was wondering are emails and texts ok to use as evidence for the small claims court.thanks.PD.


Maria said:
15 October 2012 @ 08:46

Dear Pd Kelly:

Yes, emails and texts are enough as evidences in small claims procedures
Kindest!
Maria


Peter Bailey said:
24 February 2013 @ 07:08

I had a contract with gas natural for the supply of gas in an apartment I rented. Due to meter reading error Gas Natural has overcharged me 200 euros. I moved to a new flat and took meter reading of gas on last day at property. Gas natural wont give me back my 200 euros of overpaid gas the new tenants bill shows the incorrect meter reading. I have evidence of overpayment and photographs of meter reading on last day. it has been 3 months now what should i do?


Shelly said:
05 March 2013 @ 11:20

I have Tenants in spain that owe me 400 Euro rent and in excess of 450- Euro in utility bills. They are refusing to pay me and have issued threats to me through a third party.l have constantly asked them to pay what they owe and have always been cordial in asking. They have issued threats via email and by telephone. Is there anything l can do please


Shelly said:
05 March 2013 @ 11:21

I have Tenants in spain that owe me 400 Euro rent and in excess of 450- Euro in utility bills. They are refusing to pay me and have issued threats to me through a third party.l have constantly asked them to pay what they owe and have always been cordial in asking. They have issued threats via email and by telephone. Is there anything l can do please


Theresa & Lance Dow said:
03 April 2013 @ 21:50

Hello we have paid a deposit to Patrick O'Connor based in Spain as up front costs to sell our timeshare. This has been a few months now and he promised 28 days money back if he could not sell the time share. He has stopped replying to our emails so we want to take legal action through the small claims court. please advise.


Theresa & Lance Dow said:
03 April 2013 @ 21:51

Hello we have paid a deposit to Patrick O'Connor based in Spain as up front costs to sell our timeshare. This has been a few months now and he promised 28 days money back if he could not sell the time share. He has stopped replying to our emails so we want to take legal action through the small claims court. please advise.


Theresa & Lance Dow said:
03 April 2013 @ 21:52

Hello we have paid a deposit to Patrick O'Connor based in Spain as up front costs to sell our timeshare. This has been a few months now and he promised 28 days money back if he could not sell the time share. He has stopped replying to our emails so we want to take legal action through the small claims court. please advise.


Trevor Anderson said:
21 May 2013 @ 13:50

Hello, I got married in Spain last year. I got married in a villa and hired a dance floor which was not up to standard. The supplier agreed to return the money and I have various emails from him in total agreement. How do i go about issuing a cliam against his company?


Jenny D said:
31 May 2013 @ 20:58

Theresa & Lance you will be very lucky if you get any money from this man. If he is the same man he sent me a cheque but it bounced this was back in 2008/9, telephone numbers no longer recognised, not been able to find him. If you have an address i would be interested.


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