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El blog de Maria

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

Legal tip 1445. More punishment to Banks in Spain
09 November 2017

Judicial tendency for punishing banks in Spain keeps growing:

New posts on our website:

1. https://blog.costaluzlawyers.es/blog/2017/11/06/spains-supreme-court-keeps-explaining-floor-clauses-mortgage-contracts-no-agreement-can-eliminate-effects-nullity/

On Spain Supreme Court decission regarding alive possibilities for claims against Banks who charged excessive interests due to the existence of floor clauses in your contract. Even if you signed an agreement with the Bank in the past by which they changed the interest rate.

2. https://blog.costaluzlawyers.es/blog/2017/11/03/spains-supreme-court-rules-banks-must-pay-interest-court-costs-floor-clause-cases/

On Spain Supreme Court ruling for the imposition of legal costs and interests to banks in floor clause cases.

3. https://blog.costaluzlawyers.es/blog/2017/10/30/case-law-evolving-actions-off-plan-developers-banks/

On how Case Law keeps evolving favourably for buyers in off plan purchases in Spain

More to come!

For subscription to Costaluz Lawyers´newsletter

Cantueso (rural houses and restaurant), Periana (Malaga), from Velez-Malaga (road A-356)

 



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Legal tip 1444. 40 off plan cases won against banks so far in 2017
07 November 2017

P.O CITY COURT BANK / INSURER PROMOTOR DEVELOPMENT
1525/2014 ORIHUELA P1 SGR, BBVA, BANCO SABADELL HERRADA DEL TOLLO S.L. SANTA ANA DEL MONTE
1227/2015 GRANADA P2 BANCO SABADELL RUDINA MIRADOR DE IZNALLOZ
1486/2016 ELCHE P1 BBVA (CATALUNYA BANC SA) BRONCHO PROMOCIONES LA TERCIA REAL
1292/2012 ALMERÍA P1 N/A HUMA INDALO SL OASIS TABERNAX
1347/2014 MURCIA P2 CAIXABANK SOLERA EL TRAMPOLIN SL TRAMPOLIN HILLS GOLF RESORT
431/2015 HELLÍN P1 BANCO SABADELL (CAM) CLEYTON GES LAS HIGUERICAS FINCA PARCS
1014/2013 ESTEPONA P1 CAIXABANK MANILVA COSTA SA JARDINES DE MANILVA
974/2014 CADIZ P2 BANCO POPULAR MIRAFLORES DEVELOPMENT INVERSIONES SL VISTAS DEL LAGO
545/2013 MALAGA P2 BANCO POPULAR LA RESERVA DE MARBELLA SL LA RESERVA DE MARBELLA
304/2016 MALAGA P1 BANCO POPULAR AIFOS  
1406/2015 ALICANTE P2 CAJA RURAL CENTRAL EUROHOUSE PUEBLO LA SAL
2135/2012 MALAGA P2 CAIXABANK (BARCLAYS) SIERRA BLANCA COUNTRY CLUB SL SIERRA BLANCA COUNTRY CLUB
1630/2012 ALICANTE P2 CAJA RURAL CENTRAL EUROHOUSE FORTUNA HILLS GOLF RESORT
532/2016 GRANADA P1 BBVA LEONARDO DA VINCI CAÑADAS DEL PARQUE
544/2016 GRANADA P1 BANCO POPULAR PENINSULA PROJECT MANAGEMENT RESIDENCIAL GRANADA GREEN
1278/2016 ALMERÍA P1 N/A D. JUAN MAÑAS GRIMA y Dña. ANTONIA RUIZ SÁNCHEZ. N/A
1089/2016 FUENGIROLA P1 BANCO POPULAR SIERRA MAR DEVELOPMENT SL HACIENDA BUENA VISTA
1353/2014 ORIHUELA P1 SGR, BBVA HERRADA DEL TOLLO S.L. SANTA ANA DEL MONTE
708/2015 SAN ROQUE P1 MILLENNIUM INSURANCE PROMAGA SAU ALTAVISTA
559/2015 ALICANTE P1 CAIXABANK OCHANDO SA OCHANDO GOLF
1500/2015 ALICANTE P2 CAJA RURAL CENTRAL EUROHOUSE FORTUNA HILLS GOLF RESORT
1032/2016 MURCIA P1 CAIXABANK TRAMPOLIN HILLS GOLF RESORT SL TRAMPOLIN HILLS GOLF RESORT
265/2011 SAN ROQUE P1 N/A NEXT CENTURY S.L.  
382/2012 MALAGA P2 CAIXABANK INTERLAKEN 2003 SL CASARES DEL SOL
1043/2014 MADRID P2 ZURICH SEA GOLF APARTMENTS SL LA ALCAIDESA
696/2015 ORIHUELA P1 BBVA SAN JOSE ALBATERA GOLF
887/2016 DENIA P1 BANKIA CONSTRUCCIONES MONTE PUCHOL SL ANGLE TOWER
1418/2015 ORIHUELA P1 SGR, BBVA, BANCO SABADELL HERRADA DEL TOLLO S.L. SANTA ANA DEL MONTE
1552/2014 MURCIA P2 BANCO POPULAR HUMA ALMANZORA COUNTRY CLUB
1607/2016 MALAGA P1 BANCO POPULAR, CAIXABANK, BANCO MARE NOSTRUM AIFOS PUERTO GOLF LAS COLINAS
404/2015 HELLÍN P1 BANCO SABADELL (CAM) CLEYTON GES LAS HIGUERICAS FINCA PARCS
1198/2015 ORIHUELA P1 SGR, BBVA HERRADA DEL TOLLO S.L. SANTA ANA DEL MONTE
356/2014 CADIZ P2 BANCO SANTANDER PROMAGA SAU VISTA HERMOSA
278/2016 MALAGA P1 BANCO POPULAR, BANCO SANTANDER AIFOS ??
137/2013 MALAGA P2 CAIXABANK MANILVA COSTA SA JARDINES DE MANILVA
552/2013 ALICANTE P2 SGR & BBVA HERRADA DEL TOLLO S.L. SANTA ANA DEL MONTE
1266/2015 ORIHUELA P1 SGR, BBVA & BANCO POPULAR HERRADA DEL TOLLO S.L. SANTA ANA DEL MONTE
502/2016 ROQUETAS DE MAR P1 BANCO SABADELL BUILDING TECHNO-CASAS S.L. CASA PLAYA
1428/2015 ORIHUELA P1 SGR, BBVA & BANCO POPULAR HERRADA DEL TOLLO S.L. SANTA ANA DEL MONTE


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Legal tip 1443.Illegal timeshares in Spain. Supreme Court´s answer
31 October 2017

As mentioned in a previous post, Spain’s Supreme Court is continuing its clear and strong line regarding the illegal practices of Timeshare companies in Spain.

September 2017 has been the month in which the Supreme Court has made it clear that timeshare rights sold under the form of Memberships in Vacations Clubs are also under the regulations of law 42/98.

The Supreme Court Sentences dated 13th, 19th, 22nd and 27th of September regarding Vacation clubs such as Beverly Hills Club, Beverly Hills Heights, Hollywood Mirage, Palm Beach Holiday Club and Club Paradiso Isla have set doctrine on this in the following way:

“Law 42/98 regulates not just timeshare contracts strictly understood but also similar ones by which the signer acquires rights to enjoy one or more properties, for a time greater than 3 years and during a determined or determinable time”.

The most recent Sentence by the Supreme Court, dated October 11th 2017, makes timeshare companies liable for the payment of legal costs when litigating these cases. This is hopefully a development that may encourage many of them to settle out of Court when a claim is made by a user.

We are pleased to offer free appraisals of timeshare cases; you can contact us at via website.



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Legal tip 1442. Caixa liable for Manilva Costa. New won case
18 October 2017

Writting an article on Banks´liabilities in off plan purchases this month for a contest.  Will keep you posted on this

New won case this week

Cheers

María

 

MALAGA

P2

CAIXABANK

MANILVA COSTA SA

JARDINES DE MANILVA



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Legal tip 1441. Two new won cases this week
11 October 2017

To be added to list included in last post of won cases in 2017

CADIZ P2 BANCO SANTANDER PROMAGA SAU VISTA HERMOSA
MALAGA P1 BANCO POPULAR, BANCO SANTANDER AIFOS  


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Legal tip 1440. Won cases by CostaLuz-DeCastro so far in 2017
06 October 2017

ORIHUELA P1 SGR, BBVA, BANCO SABADELL HERRADA DEL TOLLO S.L. SANTA ANA DEL MONTE
GRANADA P2 BANCO SABADELL RUDINA MIRADOR DE IZNALLOZ
ELCHE P1 BBVA (CATALUNYA BANC SA) BRONCHO PROMOCIONES LA TERCIA REAL
ALMERÍA P1 N/A HUMA INDALO SL OASIS TABERNAX
MURCIA P2 CAIXABANK SOLERA EL TRAMPOLIN SL TRAMPOLIN HILLS GOLF RESORT
HELLÍN P1 BANCO SABADELL (CAM) CLEYTON GES LAS HIGUERICAS FINCA PARCS
ESTEPONA P1 CAIXABANK MANILVA COSTA SA JARDINES DE MANILVA
CADIZ P2 BANCO POPULAR MIRAFLORES DEVELOPMENT INVERSIONES SL VISTAS DEL LAGO
MALAGA P2 BANCO POPULAR LA RESERVA DE MARBELLA SL LA RESERVA DE MARBELLA
MALAGA P1 BANCO POPULAR AIFOS  
ALICANTE P2 CAJA RURAL CENTRAL EUROHOUSE PUEBLO LA SAL
MALAGA P2 CAIXABANK (BARCLAYS) SIERRA BLANCA COUNTRY CLUB SL SIERRA BLANCA COUNTRY CLUB
ALICANTE P2 CAJA RURAL CENTRAL EUROHOUSE FORTUNA HILLS GOLF RESORT
GRANADA P1 BBVA LEONARDO DA VINCI CAÑADAS DEL PARQUE
GRANADA P1 BANCO POPULAR PENINSULA PROJECT MANAGEMENT RESIDENCIAL GRANADA GREEN
ALMERÍA P1 N/A D. JUAN MAÑAS GRIMA y Dña. ANTONIA RUIZ SÁNCHEZ. N/A
FUENGIROLA P1 BANCO POPULAR SIERRA MAR DEVELOPMENT SL HACIENDA BUENA VISTA
ORIHUELA P1 SGR, BBVA HERRADA DEL TOLLO S.L. SANTA ANA DEL MONTE
SAN ROQUE P1 MILLENNIUM INSURANCE PROMAGA SAU ALTAVISTA
ALICANTE P1 CAIXABANK OCHANDO SA OCHANDO GOLF
ALICANTE P2 CAJA RURAL CENTRAL EUROHOUSE FORTUNA HILLS GOLF RESORT
MURCIA P1 CAIXABANK TRAMPOLIN HILLS GOLF RESORT SL TRAMPOLIN HILLS GOLF RESORT
SAN ROQUE P1 N/A NEXT CENTURY S.L.  
MALAGA P2 CAIXABANK INTERLAKEN 2003 SL CASARES DEL SOL
MADRID P2 ZURICH SEA GOLF APARTMENTS SL LA ALCAIDESA
ORIHUELA P1 BBVA SAN JOSE ALBATERA GOLF
DENIA P1 BANKIA CONSTRUCCIONES MONTE PUCHOL SL ANGLE TOWER
ORIHUELA P1 SGR, BBVA, BANCO SABADELL HERRADA DEL TOLLO S.L. SANTA ANA DEL MONTE
MURCIA P2 BANCO POPULAR HUMA ALMANZORA COUNTRY CLUB
MALAGA P1 BANCO POPULAR, CAIXABANK, BANCO MARE NOSTRUM AIFOS PUERTO GOLF LAS COLINAS
HELLÍN P1 BANCO SABADELL (CAM) CLEYTON GES LAS HIGUERICAS FINCA PARCS
ORIHUELA P1 SGR, BBVA HERRADA DEL TOLLO S.L. SANTA ANA DEL MONTE


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Legal tip 1439. Spanish High Magistrates on Reform of the Judicial Model
04 October 2017

Read this new today on a Law Bulletin and wanted to share it with you: 

The President of the Civil Chamber of the Supreme Court, Francisco Marín Castán is committed to unify criteria in all judicial bodies to give effectiveness to Justice. In an serious attempt to adapt justice to "social reality".

He affirmed this during his speech at the "Legal Security and Economy" roundtable at the Spanish Summit on Trust , organized by the Ministry of Justice and moderated by the Minister of Education, Culture and Sport, Íñigo Méndez de Vigo.


Marín Castán explained that Justice can not continue to function as it has been done "traditionally", in which each judge is "isolated" and each court has its own criteria.

"It requires active behavior, grouping resources by subject," added and gave as an example that of the the judges of the mercantile Court  of Barcelona who have formed, by "own initiative", a court of instance in which all the criteria are unified and , so, he said, they are performing much better.


In this line, taking advantage of the presence of the Minister of Justice, Rafael Catalá, at the Summit,  the Supreme Courty Magistrate requested to adapt the regulations to the present and, specifically, a reform of the civil Cassation Appeal so this Court can work more effectively.

 Marín Castán also  indicated that the majority of the subjects that occupy the civil justice "derive from a defective fulfillment of the law, as reality has changed dramatically from  when  majority of Laws were passed, and therefore, the role of Case Law is crucial.


Fernández-Seijo. Magistrate of Barcelona Mercantile Court  defended "synchronizing judicial times with the times of economic and social reality," although he assured that the necessary legislative reforms, or more "human and economic means" should not be carried out until the judicial model is effective.

Guadalest, Alicante, Eastern Spain

 



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Legal 1438. No IHT in Andalucia from 2018, January 1st
24 September 2017

From January 1, Andalucía will cease to tax the heirs who receive property of a deceased family member when the sum of the assets does not exceed one million euros. Family members enjoying this benefit need to belong to  groups I and II.

Group I:  Children and adopted children under 21 years old.

Group II: Children and adopted children of 21 years old or older, grandchildren, parents, grandparents, spouses, unmarried partners registered as a Pareja de Hecho (only in certain regions)

It is necessary to take into account that the million euros computes by heir.

Does the heir´s previous patrimony compute?

Yes. In order to benefit from the exemption it is necessary that the heirs do not have a previous patrimony, at the moment of receiving the goods,  of over one million euros. At present, the estate of the heir can not exceed 402,678.11 euros.

Who will continue to pay the tax?

The maximum tax bonus leaves out groups III and IV.

Group III: Other relatives of 2nd and 3rd grade, in-law relatives. Stepchildren, cousins, nieces and nephews, aunts and uncles, siblings, and in-laws and their ascendants/descendants.

Group IV: Other further grade relatives. No reduction is applied to these cases. All others including unmarried partners, unless registered as Pareja de Hecho in certain regions

The Junta de Andalucía establishes a reduction of 7,993.46 euros in general and another of 95% in the case of the habitual residence inherited between brothers over 65 years. No more.

How does reform affect donations?

In Andalusia the donations are more expensive than the inheritances, among other reasons because the autonomic norm contemplates less reductions in the quota of the inheritance tax and donations. The Government of Andalusia establishes a 99% exemption in the donations of money from the parents to their children or descendants that is destined entirely to the purchase of the first habitual residence, as long as the grantee is under 35 years old or has a handicap equal to or greater than 33%.

The rencet  agreement by Citizens and PSOE introduces a change when the destiny of the donation is to create a company or to extend it. Again the barrier of the million euros is established. Donations between direct relatives (parents and children) up to this amount are not taxable provided that the full amount of the donations is intended to constitute or expand an individual company or family business. The small print contains a multitude of conditions: the donation must be formalized in a deed and the company must be maintained during the five years following the date of the public deed of donation, unless the grantee dies within that period.

What other groups improve their situation?

The disabled. Existing reductions are increased. For taxpayers with disabilities, the great news is that it corrects the jumping error that was when the goods exceeded 250,000 euros exempt in the case of brothers, uncles and nephews. With the current rule, when the inheritance you receive is 300,000 euros, you had to pay the tax in full amount. From 2018 disabled brothers and nephews will liquidate the tribute for everything that exceeds 250,000 euros. In the example above, would pay the tribute for 50,000 euros.

What about inheritances that have already been paid?

The measure is not retroactive and does not affect liquidations that are already being processed and are submitted before 1 January. It is one of the complaints of the Association “Stop Tax Successions” that has spearheaded the rebellion against the tribute and calls for its total elimination. This Andalusian platform has ensured that "they will not buy our silence with rebates and shod" and maintains the protest scheduled on October 7 in Seville.

Seville: on the left, the "Torre del Oro" and, on background, the Cathedral.



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Legal tip 1437. European Court on multi-currency loans
21 September 2017

New pro-consumer Decission by the Court of Justice of the European Union. Dated 20th of September 2017. It decided on a case of a mortgage loan with a multi-currency clause.

The yesterday passed text affirms that when a financial institution grants a loan denominated in foreign currency, it must provide the borrower with sufficient information so that the borrower can make informed and prudent decisions.

Spain  Supreme Court  is also passing a decission these days on the  abusiveness of such clauses.

In the European Court case, borrowers stated that at the time of signing the contracts the bank presented its product in a misleading manner, highlighting only the benefits that borrowers could obtain without showing their potential risks or the likelihood that they would be materialize. Borrowers asked the clause at issue to be declared abusive.

In this context, the Higher Court of Oradea, Romania asked the European Court about the scope of the obligation for banks to inform their clients of exchange rate risk linked to loans denominated in foreign currency .
.
In that regard, the Court observes that the requirement that a contractual term must be drafted in a clear and comprehensible manner also requires that the contract provides a transparent statement of the actual operation of the mechanism to which the clause in question relates. Where appropriate, the contract must also indicate the relationship between that mechanism and that prescribed by other clauses, so that the consumer is in a position to assess, on the basis of precise and intelligible criteria, the economic consequences which result for him.


It is for the national court to ascertain whether all the elements which may affect the scope of its undertaking have been communicated to the consumer, enabling it to assess the total cost of its loan.

Merino sheeps and Grazalema in the background



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Legal tip 1436. Timesharers freed by Spain Supreme Court
11 September 2017

2017 has been a very productive year for the Spanish Supreme Court in relation to Timeshare and Consumer Law.

22 Court decisions so far, which by applying Law 42/98 to timeshare agreements, have produced important statements such as:

  1. Law 42/98 established an obligatory legal form for the setup of these contracts, that if infringed, makes the contract null and void and gives the consumer the right to obtain a refund of amounts. This form must be in a Notary deed, with subsequent registration at the Land Registry and containing full timeframes, cancellation rights, identification of turns etc.
  2. Law 42/98 applies, regardless the name of the contract, to any agreement by which money is paid for the enjoyment of property use for vacation weeks according to turns which have been previously acquired; where use is independent with enough furniture and accessory services; where payment is divided between an initial outstanding amount and posterior annual maintenance charges, with the possibility of withdrawing, resale and exchange.
  3. Consumer is who acquires these rights with no link to his professional or commercial activities. Profit can be made if that is obtained occasionally and unlinked to profession or commercial habitual activity.
  4. Lack of due information allows cancellation of the contract within three months from purchase date.
  5. If payments were made by a third party (agent, lawyer) they have same consideration as being made by consumer itself.
  6. Payments made within the desisting period needs to be reimbursed double fold.
  7. When nullity applies, refund is calculated in proportion to years not being enjoyed so far till 50 (legal maximum period)


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