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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 1460. All won cases against Banks in 2018 so far
11 August 2018

ORIHUELA P1 BANCO SABADELL MONSERRATE CAMARA ALBEROLA & SKY HOUSES LA CAMPANETA
MURCIA P1 BANCO POPULAR HUMA MEDITERRANEO ALMANZORA COUNTRY CLUB
MURCIA P1 BANKINTER CORVERA CORVERA GOLF & COUNTRY CLUB
GRANADA P1 BANCO SABADELL PENINSULA PROJECT MANAGEMENT RESIDENCIAL GRANADA GREEN
MADRID TS SGR & BBVA HERRADA DEL TOLLO SANTA ANA DEL MONTE
ESTEPONA P1 CAIXABANK INTERLAKEN 2003 SL (OCEAN VIEW HOMES) CASARES DEL SOL
GRANADA P1 BANCO SABADELL PENINSULA PROJECT MANAGEMENT RESIDENCIAL GRANADA GREEN
MALAGA P1 CAIXABANK PROVERTE (OCEAN VIEW HOMES) GUADALUPE HILLS
ALICANTE P2 BANCO POPULAR SAN JOSE PLAYA GOLF III
ESTEPONA P1 CAIXABANK INTERLAKEN 2003 SL (OCEAN VIEW HOMES) CASARES DEL SOL
MALAGA P1 CAIXABANK MANILVA MAR Y GOLF SL MANILVA MAR Y GOLF
MADRID TS SGR & BBVA HERRADA DEL TOLLO SANTA ANA DEL MONTE
HUERCAL-OVERA P1 BANCO SANTANDER PEINSA 97 SL CALAS DE PINAR
MALAGA P1 BANCO POPULAR & BANCO SANTANDER AIFOS CORTIJO DE TORREBLANCA
MALAGA P2 CAIXABANK INTERLAKEN 2003 SL CASARES DEL SOL
MURCIA P1 CAIXABANK PROMILORCI FRONDOSO VALLEY
ALICANTE P1 BANCO POPULAR IDEARCO RESIDENCIAL MIRAMAR
MALAGA P1 BANCO SANTANDER AIFOS CALA DEL SOL
HELLIN P1 BANCO SABADELL CLEYTON GES FINCA PARCS
ALBACETE P2 BANCO SABADELL CLEYTON GES FINCA PARCS
HELLIN P1 BANCO SABADELL CLEYTON GES FINCA PARCS
MADRID TS SGR & BBVA HERRADA DEL TOLLO SANTA ANA DEL MONTE
MALAGA P1 BANCO SANTANDER & BANCO POPULAR AIFOS EL BALCON DEL HIPODROMO
MALAGA P2 BANCO POPULAR AIFOS EL BALCON DEL HIPODROMO
MURCIA P2 BANCO POPULAR HUMA MEDITERRANEO ALMANZORA COUNTRY CLUB
ALICANTE P2 SGR & BANCO SABADELL HERRADA DEL TOLLO SANTA ANA DEL MONTE
ESTEPONA P1 CAJASUR INTERLAKEN 2003 SL CASARES DEL SOL
ALICANTE P2 SGR & BBVA HERRADA DEL TOLLO SANTA ANA DEL MONTE
ESTEPONA P1 CAIXABANK INTERLAKEN 2003 SL CASARES DEL SOL
MURCIA P1 BBVA PROCOBAR SIERRA GOLF
ALICANTE P2 SGR, BBVA, BANCO SABADELL HERRADA DEL TOLLO SANTA ANA DEL MONTE
MALAGA P2 CAIXABANK PROVERTE (OCEAN VIEW HOMES) GUADALUPE HILLS


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Legal tip 1459. Claims on Plusvalia tax. NO WIN NO FEE service
24 July 2018

What  is Plusvalía tax?
The Plusvalía (or Tax on the increase of value of the lands of urban nature) is a municipal tax that taxes the profit obtained with the sale of a property, taking as references of the calculation, the original acquisition value and the price at the time of sale.
What can I claim?
If you sold at loss but still were forced to pay a tax to the Local Council in the last for years, you can claim that tax back.
Is it a safe action?
It is, after this recent decision by the Supreme Court where this Court states that when there is an increase in value, it must be taxed according to the objective rules of the tax, and if there are losses, there is no taxation possible.
Should the tax be presented and liquidated, in any case?
Yes, sellers are obliged to present liquidation where they accredit this principle of proof that there is no increase in value.
It will be difficult to prove to the judge this situation of losses?
No, after this Decision by the Supreme Court as the High Court has affirmed that the deeds of purchase and sale are sufficient to prove the loss without ruling out the expert report. If the Administration has something to oppose, it must prove it. That is, Supreme Court places the burden of proof in favor of the taxpayer. 

You can contact us for free appraisal of your claiming possibilities. NO WIN NO FEE service.



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Legal tip 1458. Community of owners and General Data Protection Regulations
24 July 2018

1. What are current regulations on Data Protection in Spain?

Since May 25, 2018, the European General Data Protection Regulation (GDPR) is the regulation governing use of data in Spain.

At the moment, the Congress of Deputies is drafting an Act (Ley Orgánica) with the purpose of adapting our national/ internal Law to community regulations.

2. Should Community of Owners adapt to the new General Data Protection Regulation?

 Yes, of course, as an entity with has personal data under administration.

3. What data should be subject to treatment within the scope of the Communities of Owners?

Current regulations establish no limits on what data the Community of Owners can treat, these are usually:

  • Name of owners
  • Identification documents
  • Telephone numbers
  • Addresses
  • Emails
  • Bank accounts

But any other data can be managed by Community of Owners if they are owners ‘data and are necessary for the usual activity of the Community

4. Should the files be notified to the Spanish Agency for Data Protection?

With the entry into force of the GDPR the indicated registration disappears, but there is an obligation to internally keep a record of the treatment activities.

5. Is the Community of Owners obliged to have it?

Community of owners is just obliged if the treatment that it carries out may entail a risk for the rights and freedoms of the interested parties, not be occasional, or include special categories of personal data. In any case it is highly advisable as it is a proof of "active responsibility" and facilitates the correct compliance with the regulations.

6. What is the record of treatment activities?

The record of treatments must have the following content:

 a) The name and contact details of the person responsible

b) The purposes of the treatment;

c) A description of the categories of stakeholders and the categories of personal data;

d) The categories of recipients to whom the personal data were communicated or communicated, including the recipients in third countries or international organizations;

e) Where applicable, the transfer of personal data to a third country or to an international organization, including the identification of said third country or international organization and, in some cases , the documentation of adequate guarantees;

f) Where possible, the deadlines set for the deletion of the different categories of data;

g) Whenever possible, a general description of the technical and organizational security measures

7. Should the Communities of Owners have the figure of the Delegate of Data Protection (DPO)?

They should not

8. Who is responsible of Data Protection according to current regulations?

The Community of Owners is responsible for the treatment of personal data, while the administrator acts as the manager, but the AEPD ( Spanish agency for Data Protection) establishes a series of conditions for the relationship Community-Administrator-Protection regarding community data is correct.

  • The Administrator must only access the data for the exclusive purpose of providing a service to the Community
  • . If the use of the data is for purposes not included in the Horizontal Property Law (LPH), the consent of all owners will be necessary, with the novelty of the GDPR that requires that the consent be express and unambiguous.
  • The relationship between the Community of Owners and the  Property Administrator, in accordance with the GDPR , must be in writing .

Please contact us if your Community of Owners is in need of advise for Data Protection compliance



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Legal tip 1457. 21 Cases against Banks won so far in 2018
31 May 2018

ORIHUELA P1 BANCO SABADELL MONSERRATE CAMARA ALBEROLA & SKY HOUSES LA CAMPANETA
MURCIA P1 BANCO POPULAR HUMA MEDITERRANEO ALMANZORA COUNTRY CLUB
MURCIA P1 BANKINTER CORVERA CORVERA GOLF & COUNTRY CLUB
GRANADA P1 BANCO SABADELL PENINSULA PROJECT MANAGEMENT RESIDENCIAL GRANADA GREEN
MADRID TS SGR & BBVA HERRADA DEL TOLLO SANTA ANA DEL MONTE
ESTEPONA P1 CAIXABANK INTERLAKEN 2003 SL (OCEAN VIEW HOMES) CASARES DEL SOL
GRANADA P1 BANCO SABADELL PENINSULA PROJECT MANAGEMENT RESIDENCIAL GRANADA GREEN
MALAGA P1 CAIXABANK PROVERTE (OCEAN VIEW HOMES) GUADALUPE HILLS
ALICANTE P2 BANCO POPULAR SAN JOSE PLAYA GOLF III
ESTEPONA P1 CAIXABANK INTERLAKEN 2003 SL (OCEAN VIEW HOMES) CASARES DEL SOL
MALAGA P1 CAIXABANK MANILVA MAR Y GOLF SL MANILVA MAR Y GOLF
MADRID TS SGR & BBVA HERRADA DEL TOLLO SANTA ANA DEL MONTE
HUERCAL-OVERA P1 BANCO SANTANDER PEINSA 97 SL CALAS DE PINAR
MALAGA P1 BANCO POPULAR & BANCO SANTANDER AIFOS CORTIJO DE TORREBLANCA
MALAGA P2 CAIXABANK INTERLAKEN 2003 SL CASARES DEL SOL
MURCIA P1 CAIXABANK PROMILORCI FRONDOSO VALLEY
ALICANTE P1 BANCO POPULAR IDEARCO RESIDENCIAL MIRAMAR
MALAGA P1 BANCO SANTANDER AIFOS CALA DEL SOL
HELLIN P1 BANCO SABADELL CLEYTON GES FINCA PARCS
ALBACETE P2 BANCO SABADELL CLEYTON GES FINCA PARCS
HELLIN P1 BANCO SABADELL CLEYTON GES FINCA PARCS


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Legal Tip: 1456 - Spanish Law, Finance Regulators and hedge funds business examined by European Commission
09 May 2018

What is the EU deciding with regards to assignment of mortgage debts to hedge/vulture funds? 

On 20 April 2018, the European Commission announced the admission for processing of the complaint filed by a Law Firm in Spain on behalf of 12 holders of Spanish mortgages for non-application of European law on credit transfer.

The European Commission informs that the conclusion of its investigation could lead to "an infringement process against Spain" for non-transposition or defective transposition of the community law.

What was the claim about?

The complaint states that in 2007, in the midst of the financial and real estate crisis, the Mortgage Law was reformed, and banks were then exempt from communicating to the mortgage holder that the mortgage debt had been assigned to a third party ( art 149 of Mortgage Act)

The regulations of the Mortgage Act also allows the borrower to renounce the right to be informed regarding the assignment of the mortgage and  this is now being abused by banks as they include a clause in the Mortgage contract by which consumers renounce those rights without full knowledge of the possible implications.

The complaint states that Spanish legislation is incompatible with art. 2 of the credit directive (2008/48/CE) that establishes that the consumer is informed in case the financial institution decides to assign its credit.  The same is mentioned in the recent Mortgage Directive 2014/17/EU which, despite not being transposed to Spanish Law, is applicable in Spain by the principle of primacy and effectiveness of European law.

Why is it important for debtors to know about the assignment of their debts?

The information on the assignment of a loan is very relevant because it is the only way to be able to exercise the right of pre-emption and buy-out contemplated in 1535 of the Civil Code.

The Credit Directive affirms that assignment of credits can never weaken the consumer's position. By not knowing who its creditor is, the consumer loses the opportunity to obtain a significant discount on his debt, which is enjoyed by a third party, a vulture fund, in an unjust enrichment.

Have financial regulation bodies in Spain supervised this?

The complaint also mentions passivity of (1) the Spanish National Stock Market Commission, which, according to lawyers directing the claim procedure, does not offer the transparency that is due to theses assignments and (2) of the Bank of Spain which allowed in its Circular 4/2004 for the transferred assets not to leave the balance sheets of the banks, encouraging a practice that only benefits the vulture funds and that seriously harms consumers

The famous street "Calleja de las flores", in Cordoba, Southe of Spain

 



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Legal Tip: 1455 - 18 LEY 57/1968 cases won against Banks so far in 2018
01 May 2018

CITY/COURT   BANK / INSURER PROMOTOR DEVELOPMENT
ORIHUELA P1 BANCO SABADELL MONSERRATE CAMARA ALBEROLA & SKY HOUSES LA CAMPANETA
MURCIA P1 BANCO POPULAR HUMA MEDITERRANEO ALMANZORA COUNTRY CLUB
MURCIA P1 BANKINTER CORVERA CORVERA GOLF & COUNTRY CLUB
GRANADA P1 BANCO SABADELL PENINSULA PROJECT MANAGEMENT RESIDENCIAL GRANADA GREEN
MADRID TS SGR & BBVA HERRADA DEL TOLLO SANTA ANA DEL MONTE
ESTEPONA P1 CAIXABANK INTERLAKEN 2003 SL (OCEAN VIEW HOMES) CASARES DEL SOL
GRANADA P1 BANCO SABADELL PENINSULA PROJECT MANAGEMENT RESIDENCIAL GRANADA GREEN
MALAGA P1 CAIXABANK PROVERTE (OCEAN VIEW HOMES) GUADALUPE HILLS
ALICANTE P2 BANCO POPULAR SAN JOSE PLAYA GOLF III
ESTEPONA P1 CAIXABANK INTERLAKEN 2003 SL (OCEAN VIEW HOMES) CASARES DEL SOL
MALAGA P1 CAIXABANK MANILVA MAR Y GOLF SL MANILVA MAR Y GOLF
MADRID TS SGR & BBVA HERRADA DEL TOLLO SANTA ANA DEL MONTE
HUERCAL-OVERA P1 BANCO SANTANDER PEINSA 97 SL CALAS DE PINAR
MALAGA P1 BANCO POPULAR & BANCO SANTANDER AIFOS CORTIJO DE TORREBLANCA
MALAGA P2 CAIXABANK INTERLAKEN 2003 SL CASARES DEL SOL
MURCIA P1 CAIXABANK PROMILORCI FRONDOSO VALLEY
ALICANTE P1 BANCO POPULAR IDEARCO RESIDENCIAL MIRAMAR
MALAGA P1 BANCO SANTANDER AIFOS CALA DEL SOL


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Legal Tip: 1454 - LEY 57/1968 Case won against Banco Santander for buyers in the Aifos development 'Cala del Sol' in San Fernando
01 May 2018

A law from 1968 and the interpretation of that law by Spanish judges and courts in favor of off-plan buyers of first or second homes in Spain results in the return to six claimants the savings they lost during the real estate crisis in Cala del Sol, San Fernando.

At the completion date as stated in the purchase contract, the building licence had not even been issued and the developer Aifos then entered liquidation.

The Judgment states that purchase contracts were cancelled during the Bankruptcy proceedings as a result of the approval of the Liquidation Plan by the Mercantile Court; and it is also concluded as proven that the claimants had not received any refund from that procedure.  The defendant entity, Banesto, now Banco Santander, appears as a creditor in the aforementioned bankruptcy proceeding, thus having full knowledge of the buyers off-plan deposits.

The Judgment also states that it has been proven that BANESTO signed a General Guarantee with the entity AIFOS and that although none of the claimants received an individual guarantee, there are many individual guarantees issued in favor of other buyers on the same development.

Although the Bank tried to evade its responsibilities in the trial by alleging the speculative nature of the purchases and therefore, the non-conformance with Law 57/68 (law that protects first or second home buyers), this argument was rejected as it was not proven and the burden of proof is on the party that alleges it.

The bank also alleged a time limit on these actions of 2 years; however that argument was also rejected by the judge in favour of the 15-year statute of limitations.

The bank is also ordered to pay interest from the date Aifos declared bankruptcy, a limit that may be appealed by the claimants since the right to be paid interest, according to law and jurisprudence, is from the date of payment to the developer’s bank account.

The costs are also imposed on the Bank.

Almond trees in Mallorca (Spain)

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Legal Tip: 1453 - LEY 57/1968 Case Won against Banco Popular for buyers at the IDEARCO development 'Residencial Miramar' in Cabo Roig, Orihuela Costa
01 May 2018

The development by Construcciones de Ideas Arquitectónicas Alicantinas SL (IDEARCO) should have been completed in 2009 and was still not completed in 2013 when the Lawsuit was filed.

The developer abandoned the development, leaving buyers without guarantees and therefore, unable to recover the off-plan amounts paid. Nor did the developer appear at the trial.

In a situation of abandonment as described, it is only thanks to the interpretative development of Law 57/68 of recent years, driven by the efforts of Keith Rule and the CostaLuz Lawyers-DeCastro Law Firms, that the buyers of this development can recover their money, which in many cases are their life savings.

Banco Popular is condemned to refund the amounts that are proven to be deposited by the agent Atlas International in the developers accounts opened in the Bank. The judge in Alicante cites the Sentences of the Supreme Court that contain the doctrine relating to these claims.

Interest was awarded from the date of payment of the off-plan deposits to the developers account and legal costs were also imposed on the Bank.

Field of lavender in Brihuega (Guadalajara. North of Madrid, Spain)



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Legal Tip: 1452 - LEY 57/1968 Case Won against Caixabank for buyers in Promilorci Development 'Frondoso Valley' in Murcia
01 May 2018

Caixabank condemned to return off plan amounts in Murcia development Frondoso Valley by liquidated developer Promilorci 

The claimant only had a photocopy of his individual guarantee but that was brought to Court by CostaLuz Lawyers-DeCastro teams as valid for the refund of his off-plan amounts.

The Bank's strategy to defend the claim alleging unfair delays and speculative profile of claimants was dismissed by the Judge.

- Unfair Delay: The fact that the claimant has been previously litigating for the return of these amounts by the liquidated company Promilorci, makes the date on which the action is filed against the bank as perfectly reasonable

- Investor / speculator profile of the claimant: The speculative character has not been proven nor can the Bank avoid applying the contractual clause that protects the purchase contract with the law 57/68, although the claimant was a real estate professional.

Interest from the date of payment of the off-plan deposits to the developer’s bank account was awarded in addition to the full principal amount & costs.

Los Pilones de la Garganta de los Infiernos in the Valley of El Jerte (Cáceres. South of Spain)



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Legal tip 1451. 15 cases won so far against banks in 2018 by CostaLuz Lawyers
17 April 2018

ORIHUELA P1 BANCO SABADELL MONSERRATE CAMARA ALBEROLA & SKY HOUSES LA CAMPANETA
MURCIA P1 BANCO POPULAR HUMA MEDITERRANEO ALMANZORA COUNTRY CLUB
MURCIA P1 BANKINTER CORVERA CORVERA GOLF & COUNTRY CLUB
GRANADA P1 BANCO SABADELL PENINSULA PROJECT MANAGEMENT RESIDENCIAL GRANADA GREEN
MADRID TS SGR & BBVA HERRADA DEL TOLLO SANTA ANA DEL MONTE
ESTEPONA P1 CAIXABANK INTERLAKEN 2003 SL (OCEAN VIEW HOMES) CASARES DEL SOL
GRANADA P1 BANCO SABADELL PENINSULA PROJECT MANAGEMENT RESIDENCIAL GRANADA GREEN
MALAGA P1 CAIXABANK PROVERTE (OCEAN VIEW HOMES) GUADALUPE HILLS
ALICANTE P2 BANCO POPULAR SAN JOSE PLAYA GOLF III
ESTEPONA P1 CAIXABANK INTERLAKEN 2003 SL (OCEAN VIEW HOMES) CASARES DEL SOL
MALAGA P1 CAIXABANK MANILVA MAR Y GOLF SL MANILVA MAR Y GOLF
MADRID TS SGR & BBVA HERRADA DEL TOLLO SANTA ANA DEL MONTE
HUERCAL-OVERA P1 BANCO SANTANDER PEINSA 97 SL CALAS DE PINAR
MALAGA P1 BANCO POPULAR & BANCO SANTANDER AIFOS CORTIJO DE TORREBLANCA
MALAGA P2 CAIXABANK INTERLAKEN 2003 SL CASARES DEL SOL


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