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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 61. What the hell is the Land Registry in Spain?
31 March 2009

It is not  the Town Hall property registry, it is not a census,  it is not a cadastre, it is not a list... is the ultimate authority on ownership and real estate rights in Spain. 

....a public office for the record of ownership and real estate rights  to the general knowledge of people.

The main function of a property registry is to provide reliable information and legal safety to citizens; they can rely on what is recorded there at the time of contracting on ownership or any other real estate rights: full and legal ownership, encumbrances, loans, charges, easements, habitation rights, ownership limitations, prohibitions for transference, judicial actions on the property, embargos... 
 
Land Registry was created in Spain in 1861 to cover three goals:
 
1. - To provide solid foundations to the mortgage loan system.
 
2. - To provide protection to the holders of registered rights
 
3. - To provide speed to real estate legal traffic.
 
In some jurisdictions, such as German, registration is mandatory in order to convey the property.  In other countries such as Spain, registration is voluntary, but it has huge and inmensely relevant advantages that make it  highly advisable! 
 
Some registration principles in Spain:
 
1. - Principle of request: Any registration in the Land Registry must derive from the request of interested party; the Registrar can not record rights ex officio.
 
2. - Principle of priority: "First in the registry, better in Law". Once a right is registered, any other non- compatible right cannot win over it. For instance: in the case of double sale of  a estate (a person sells a property twice, taking advantage that the first purchaser has not registered the property) the ownership will belong to that one good faith buyer who has duly recorded the right in the Land Registry, leaving the other only entitled to claim a compensation.
 
3. - Principle of Register Public Faith: This principle has the aim to provide legal safety to the market: "that which is not in the Register,is not in the reality". It is important to remark that the principle of Public Good Faith covers just purchasers for good and valuable consideration acting in Good faith. Good faith is supposed and who denies it need to prove it.
 
4. - Principle of legality: Just valid and perfect right titles are registered. The legal judgement on validity and fullness is the mission of the Land Registrar.
 
5. - Principle of publicity: Nobody can allegate ignorance of what is recorded in the Land Registry
 
6. - Principle of legitimacy: All the Land registry records make every necessary legal effect and are fully valid unless they are expressly declared inexact or invalid.
 
(more principles in tomorrow’s article… hopefully written from London!)
 
Maria
 
 


Fountain and orange trees by Kenneth Iriarte at Flickr.com


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Seven habits and four keys for crisis: Stephen R. Covey
30 March 2009

I have read part of Covey´s 7 habits and Steven Schaffer, a member of the Costaluz team is very much inspired by it and its author, Stephen R. Covey who delivered a lecture in IESE last autumn where he  gave four keys to move to the new organizational paradigm:

  1.- Leaders must inspire confidence, which always requires humility, asking forgiveness after the errors, listen a lot, until you really understand the other.
 
2.- Besides trust,  it is required to clarify the goal or goals, "few and well known by evetryone  in the organization”.
 
3.- To align systems to these objectives, the systems can be set either by the measurement of outcomes or responses (feedback). There is nothing that most quickly convert a cynic or an skeptic than  results.
 
4.-  And finally, give free rein to the talent: to empower each person because each one is important for the company, giving voice and enhancing everyone´s  own opportunities to find a better alternative to doing things his way  and  achieve the objectives, endorsing the company and the targets.
 
There is no need to have a big organization for putting these tips into practice, you can even start in your marriage and your family and keep growing from there to your office and your employees: you are the same at home, at social life and at work. Same principles need to guide our behaviour and conduct  regardless the role we are playing in every case.
 
I am leaving for London tomorrow, I will tell you more on it once I am back.
 
Maria
 
 
 


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Friday breakfast at Costaluz
27 March 2009

 We had a 1and1/2 h team breakfast today in Costaluzlawyers under the sun of a small plaza ( Plaza Neda) in Algeciras, it is Friday and springtime is here, so we had to celebrate life´s simplicity and greatness with a good under-the-sun team breakfast. It was not planned, that is how most of the social events happen in South Spain:  what  it actually  really happens is that almost everything, everyday is a social event in Andalucia.

We chatted a while about Cadiz idiosyncracy in contrast with other more eastern parts of Andalucia. Mar Durio, who is originally from Cadiz  town told us how in the last economic crisis ( the 90´s one), bars and social places in Cadiz were still crowded and alive and people wondered why crisis was not affecting those businesses.

We concluded that we are happy just with a " caña" ( small beer:1 €) but  just being outside talking to people ( there is a lot of outside and a lot of people always around, waiting for friendly and funny conversation...... so, what else?

We were also commenting on the need of small business stores and shops to keep their own  essence and personality in order to survive against big commercial malls in the outskirts of cities and towns and  against online-shopping.

Free markets are always a source of  available  good price creation and recreation.... . not too much quality always but still a good deal of it  if you learn to look and find and... moreover: who wants to wear the same trousers for more than 2-3 years?

Commercial centers: too much for the body and... the soul. We do not need that much: please do not bother, we are looking for some week-end rest.

I love these Friday breakfasts... I really do and need to touch the just-personal side of the team... it is very refreshing.

Have a peaceful and personal weekend,

Maria

www.costaluzlawyers.es

 

Conversing by Perico Terrades at flickr.com

 

 

 

 

Andalusian whitewashed facade



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Where Maria´s hopes are
27 March 2009

Even in recession, we still have the sun and the lifestyle... and are naturally hospitable.

This is where my hopes are... Spain will always have sun and spanish essence can always be reminded.

* 2nd tourist destination in the world

Exceptional quality of life

European cities classified according to the Quality of Life of Employees
Barcelona 1
Paris 2
Stockholm 3
Madrid 5
Dublin 9
Lisbon 11
London 13
Prague 25
Athens 27

 

 

Source: Cushman Wakefield Healey & Baker, European Cities Monitor 2005

* The Economist ranks the quality of life in Spain 10th in the world in terms of a set of social, political, cultural and economic parameters.

* Outstanding and modern health system.

*   With the largest number of international schools in Europe according to the European Council of International Schools.

International Schools
Spain 34
Italy 33
France 26
Czech Republic 5
Hungary 2

  • 8,000 km (4,970 miles) of coast & beautiful beaches combined with one of the best all year round climates in Europe.
  • The Spanish coastline has been awarded, for the second time in a row, with 562 Blue Flags, the highest number of this eco-label all over the world. The Blue Flag is an exclusive eco-label awarded to over 3,200 beaches and marinas in 36 countries across Europe, South Africa, Morocco, New Zealand, Canada and the Caribbean in 2006 (www.blueflag.com) www.blueflag.com).
  • Green areas & national parks, excellent sport facilities 313 golf courses and a rich cultural and social life. Spain is "the European golf leader".
  Quality of life GDP per person Diference
  Score Rank $(at PPP) Rank in ranks
Ireland 8.333 1 36,790 4 3
Switzerland 8.068 2 33,580 7 5
Norway 8.051 3 39,590 3 0
Luxembourg 8.015 4 54,690 1 3
Sweden 7.937 5 30,590 19 14
Australia 7.925 6 31,010 14 8
Iceland 7.911 7 33,560 8 1
Italy 7.810 8 27,960 23 15
Denmark 7.796 9 32,490 10 1
Spain 7.727 10 25,370 24 14
Singapore 7.719 11 32,530 9 -2
Finland 7.618 12 29,650 20 8
USA 7.615 13 41,529 2 -11
Canada 7.599 14 34,150 5 -9
New Zealand 7.436 15 25,110 25 10
Netherlands 7.433 16 30,920 15 -1
Japan 7.392 17 30,750 16 -1
Hong Kong 7.347 18 31,660 11 -7
Portugal 7.307 19 19,530 31 12
Austria 7.268 20 31,420 12 -8
Taiwan 7.259 21 28,070 22 1
Greece 7.163 22 22,340 27 5
Cyprus 7.097 23 20,500 30 7
Belgium 7.095 24 30,660 17 -7
France 7.084 25 30,640 18 -7
Germany 7.048 26 28,250 21 -5
Slovenia 6.986 27 21,892 28 1
Malta 6.934 28 18,710 32 4
United Kingdom 6.917 29 31,150 13 -16
Korea, South 6.877 30 23,360 26  -4
 

*PPP "purchasing power parity"
Source: EIU "Worldwide Quality-of-life Index 2005" (Score on a scale from 1 to 10)

 

By Maria L. de Castro

web@costaluzlawyers.es

www.costaluzlawyers.es

 

 

Beach gates by Chodaboy at flickr.com


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Legal tip 60: Tax on property in Spain: IBI
25 March 2009

 

The IBI tax is local tax levied on property, both urban and rural, which is accrued yearly. The collector of this Tax is the Local Council where the property is located.
 
The tax amount is calculated on the cadastral value of the property and determined by such other factors such as surface, specific location...
 
IBI rates vary from town to town, mainy depending on size of the town.
 
Non payment of IBI tax is attached to the property which generates it. So, if you are buying a property, it is very important you verify if all the yearly IBI taxes have been paid.
 
 
Castellar de la Frontera ( Cádiz) by Quinocho at flickr.com
 


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Employment programs for women in Spain
24 March 2009

 

 

Information obtained from the UN´s International Labour Organisation 

Government Programmes in Spain - Women’s Institute

The Women’s Institute offers the following employment programs for women:

Vocational Training and Education for Women:

a. “NOVA” – Innovative Training Courses for Women

i) Management and Planning of Human Resources
ii) Management of the Environment
iii) New Communication Technologies
iv) Administrative Information Technology
v) Graphic design and Layout
vi) Facilitating training for the elderly
vii) Family mediation
viii) Agent for Equal Opportunity
ix) Nurse’s helper with training in Alzheimer’s

b. “CLARA” – Programs for Women in the process of social or labour integration
c. Courses for Professional Occupational Training
d. Seminars for Orientation on Job Searches

Support Programs to Encourage Business

a. Program for Support for Business and Women – financed by the Fundo Social Europeo and the National Institute for Labour

b. Program for Help in Work “Female Entrepreneurs”- co-financed by the Fondo Social Europea across the Marcos Comunitarios de Apoyo.

c. Program for Management Directed by Businesswomen and Female Entrepreneurs – a collaboration between the Fundación INCYDE (Instituto Cameral para la Creación y Desarrollo de la Empresa) and cofinanced by the Fondo Social Europeo.

d. Program of Business Management Training- a collaboration between the Instituto de la Mujer con la Fundación Escuela de Organización Industrial (EOI)

e. Programs for Financing and Protecting Businesses
 

f. OPTIMA Program – Profitability of human capital in businesses.Considered Best Practice by EU Its objective is to introduce equal opportunities for men and women in the business world given the Action Plans

Programmes aimed at Labour Officials and technical personnel

Sensitisation and Dissemination Programmes

Other

a. PROMOCIONA project for local systems of equality of opportunity – created by the Institute for Women – executed jointly until 12/04 by the Servicio Galego de Igualdade, la Dirección General de Formación del Principado de Asturias, la Fundación Asturiana de Atención a Personas con Discapacidad (FASAD), el IMSERSO, la Organización de Mujeres Empresarias y Gerencia Activa (OMEGA) y la Federación de Empresarias de Galicia (FEGA), la Universidad de Oviedo y la Fundación para la formación, la Cualificación y el Empleo en el Sector del Metal de Asturias.

b. OMEGA : Courses in training for women
Conciliation of private and personal life, managing work teams, effective presentations, Social manner and communication

c. Since 1990 there has been an agreement that the Institute for Women's Issues in the
Ministry of Social Affairs will cooperate with the Ministry of Education in holding an annual course to encourage the involvement of women teachers in the new technologies, a field in which women are under-represented.

d. In addition, the regional Catalan Institute for Women promotes the pilot programme called Don@euromediterrània project, which has the goal of providing an opportunity for the visualisation and diffusion of significant experiences of good practice in equal opportunities, while at the same time generate and promote a greater interchange of ideas and information in this field. The website presents a collection of gender equality projects undertaken during the period 1996-2000 within the partner countries of Spain, France and Italy, based around five thematic areas:

i) Mainstreaming integration;
ii) Equal opportunities in education, professional training and the job market;
iii) The harmonization of professional and family life;
iv) The entrepreneurialism of women;
v) Decision making at all levels.

e. Institut Català de la Dona.


 



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Legal tip 59. Motor vehicle tax in Spain
23 March 2009



Tax on motor vehicles is a direct tax, established in Spain, municipally owned, mandatory and which management is fully carried out by Local Councils.

It is a tax levied on ownership of motor vehicles, which are suitable for circulating in public roadways

The regulation of this tax is in the
Local Treasures Act.
(Real Decreto Legislativo 2 / 2004 of March 5).


The classification of a vehicle as being suitable for roadways circulation is dependant on being registered in the corresponding registry. Collection or antique units are not levied by this tax.


Tax payers are those individuals or entities appearing as holders in the log book. 
 

The tax amount is calculated under a tariff table. The table assigns every type of vehicle a minimum amount to pay. This minimum amount depends on: the output tax of the vehicle, the number of seats, cargo capacity and engine capacity.
 
Every type of vehicle has a different criterion for the calculation of the minimum:

Cars                                                       (output-power)
Bus                                                        (seats available)
Trucks                                                    (usable load)
Tractors                                                  (power tax)
Trailers and semi trailers                           (usable load)
Mopeds and motorcycles                            (cubic capacity)

Local Councils can increase the quotas established  in the table above with a coefficient, whose limit is set by law depending on the population of the municipality.

There are some subsidies to the taxpayer depending on the type of fuel consumed by the vehicle and the characteristics of the engines, all in relation to their impact on the environment.

The tax period coincides with the calendar year, accrued on January the 1st.

Management of the tax corresponds to the Local Council which corresponds to the address mentioned in the circulation permit.
 
 
 
 

Coches de caballo in Seville



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Legal tip 58. Contract revision: an alternative to judicial affair.
19 March 2009

 

Contract Re-signing: an alternative to judicial affair.
 
If you are cancelling your contract, based on effective and legal reasoning with the aim of using that money in the future to buy again in Spain, it may be a good idea for you to try to renegotiate with the developer the terms of the contract…. specially the price and the completion deadline. 
 
As there is a previous breach by the developer, which could drive the case to cancellation, you can take the chance to put some pressure on develope and get same property at a much more reduced price.  It actually is a win-win deal so I cannot see a developer refusing it and if so, I am sure the Judge will agree with you and will revise the contract on your favour.
 
This new contract can be drafted now with full respect and coverage of all your rights as a consumer… those that your current contract lacks. Of course with a proper Bank Guarantee in place.
 
In terms of price reduction: I know a developer who is offering its properties at a price reduced by the money the interested person is trying to recoup from the developer in Courts (that 20-30% of the price paid as a deposit). I think it is a good example of common sense and keeness to put some balance and life back to the market.
 
If you cannot get finances now, as there is also a possibility of cancelling the contract because of this, you can try to agree to have completion postponed and a good discount on price.
 
Crisis brings opportunities.
 

By Maria L. de Castro

web@costaluzlawyers.es

www.costaluzlawyers.es

 

 

 

Sunset in Barrosa beach ( Chiclana). By Josep.Abad at  Flickr.com. These setting suns were inspiration for our Costaluz logo.



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Singled out
18 March 2009

Has any of you read this book? Male? Female?

                                        Have a great Tues-day!

                                        Maria

 

By Maria L. de Castro

web@costaluzlawyers.es

www.costaluzlawyers.es



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Legal tip 57. New, unexpected circumnstances... can I cancel my contract?
17 March 2009

 

Relatively often, once a contract is signed, there are events beyond the control of the contracting parties which substantially alter the contractual circumstances; the inevitable result is that certain effects violate the due contractual balance.
 
These cases of unexpected change of contractual circumstances produce numerous problems that need to be solved by the Legal System, regardless of the silence of the Law or the foresight or anticipation of the signatories of the contract.
 
A clear example of this are, in my opinion, off plan contract purchases, where external financing was part of the contract assumptions in relation to the current situation derived from the credit crunch.
 
Supreme Court Case Law in Spain resort to the legal principle "rebus sic stantibus" as an instrument to try to mitigate the consequences of the imbalance produced by the alteration of the contractual circumstances. This High Court understands that all contracts with deferred completion have this implicit clause by which alteration of circumstances legally demands the adaptation of contract clauses to new reality and therefore, obligatory enforceability of original contract obligations is somehow questioned or modified. (The Latin statement for that is: contractus qui habent tractum succesivum vel dependentiam de futuro rebus sic stantibus intelligitur).
 
Anyhow, the application of the clause by the Supreme Court is restrictive and conditioned to the following facts:
 
1.     Extraordinary event happening between circumstances existing at the moment of the signing and those existing at the moment of fulfilment or completion.
 
2.     Exorbitant disproportion of reciprocal obligations arising out of the extraordinary event.
 
3.     No other compensation legal mechanism being practicable.
 
4.     New circumstances being entirely unforeseeable by the parties when the contract was signed.
 
5.     Good faith and no responsibility by the claimer.
 
Virtuality of the clause "rebus sic stantibus," understood as adaptation of  the content of the  contract ( revision) or a declaration of their ineffectiveness ( cancellation) in the future, is not the result of any contractual agreement, nor a presumed clause, but one of the rules of contractual mandatory integration under Article 1258 of the Civil Code, which is applicable to contracts with deferred completions:  

"Contracts are perfected by mere consent, and since then require not only compliance with what has been expressly agreed, but also with all the consequences that according to their nature, are consistent with good faith use and Law
 
 
 
 Sunset at " El Chozo" ( Tarifa-Cadiz)
 
 


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Legal tip 56. Maternity/paternity leave in Spain
10 March 2009

The Spanish Congress passed on March 2007, the Effective Equality of Women and Men Act. This Law, among other measures, allows for the extension of paternity leave to 13 days, in addition to the two that were granted, which can be extended to a month in a six years period.

Beneficiaries of this new Act are self-employees, employees, training employees and part time workers in order to enjoy paternity, adoption and foster care (either temporary or permanent) time.  

The employee can enjoy these 15 days, or can reduce it, as a woman can also reduce her maternity leave. These “out of work renounced days” cannot be changed for vacations or any other birth’s maternity leaves. The decision to have total or middle leave should be in line with the company.
 
The starting day for woman can be before the delivery date (due to obvious reasons of gravity…); men cannot choose: they need to start when the child is already crying outside the womb in this wonder…-full world. In cases of adoption or foster care, the starting day will be the day the judicial decision or the administrative approval is in place.  

Among general procedures to be performed, the General Practitioner of the Public Health services should be sought in order to produce a maternity report, one copy needs to be kept by the user/ applier to this benefit, and another copy will be kept by Public Health Services. The applier also needs to be prepared with personal identity documents (identity card or residence card), family book and the documentation relating to the registration within the Social Security system.

The right to enjoy these benefits will prescribe five years after the birth/adoption/foster care.
 

By Maria L. de Castro

web@costaluzlawyers.es

www.costaluzlawyers.es

 

 

 
 
 Sunset in La Caleta ( Cadiz)


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Legal tip 55. Claims against Insurance Company
09 March 2009

 

One of the most common problems within Insurances is when the insured has “non conformance” with the report on the accident made by the Insurer´s surveyor.

In many occasions, the compensation valued by the Insurer’s surveyor is not enough and in other occasions, the Insurer considers the incident not being covered by the Insurance.

Legal and judicial proceedings might be needed then:

The procedure begins with the appointment of an expert by each party. Those experts might reach an agreement which will be exposed in a joint report which shall state the grounds of the incident, the assessment of damages, other circumstances that affect the determination of compensation, depending on the insurance in question and the liquid amount of compensation.

If there is no agreement among experts, both parties shall appoint a third expert or it will be named by the corresponding Judge of First Instance

How to act in case of an insured incident:

The holder, insured or beneficiary of the Insurance policy must report the accident to the insurance company within five working days
, stating the circumstances and consequences of the accident.

Once the accident is reported to the insurer, the Company will send an expert for the analysis and evaluation of the incident. After the valuation by the expert, the insurer must pay the agreed compensation, repair or replace the insured object.

The Insurance Company is required to pay at least the minimum amount within forty days of being notified of the incident and to complete the payment within three months from that date.

If the insurer fa
ils to pay the compensation within a period of three months, the possibility for judicial request of the amount is open: this claim will comprise the assessed amount, plus legal interests plus compensation for the damages that this delay may cause.

 

By Maria L. de Castro

web@costaluzlawyers.es

www.costaluzlawyers.es

 

 

Zahara de los Atunes beach by Iman Dryke




 



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Banks who made the mess...need to restore now
08 March 2009

Ask your Spanish bank if they have got a good deal for a house in Spain.

 As if they were real estate agencies, financial institutions in Spain are showing the poster "House for sale”. Banks and savings banks have increased their real estate assets in 2008- up to 7806 million euros- due to mortgage executions and developers´ loan of difficult recovery.
 
 Now it is needed to put these properties in the market to do business, but the damaged area of construction and real estate does not make it easy. Therefore, banks have decided to create real estate societies that have launched attractive offers to employees and customers.
 
As one of the majors causers of the current financial unbalance and as excessive earners as they were during the real estate boom, it is time for them to offer a social help in order to bring normality back to the real estate arena and the financial status of the world. Time to reduce those obscene benefits in favour or restoration of financial order. I think this is where most of the needed oxygen needs to come from. But I am not an economist and have no expert knowledge. It is just a common sense thought related to balance and equilibrium.   

Banco Santander, has real estate valued 2.634 million euros which were purchased to repay failed loans. The Estate Company of the Bank is named “Altamira Santander Real State” and its aim is to market its residential developments. The entity chaired by Emilio Botin analysed and came to the conclusion that acquiring the financed assets, after the failure of repayments, was the best way to recover the huge debt.
 
Last January, the 12th, they started to offer those properties to the Bank’s employees, with discounts of up to 25% of the market price. They have recently extended the offer to 300 properties for sale, rent or rent to buy, as the initial campaign was very successful.  

Santander says it is planned to gradually extend the offer to workers in other countries like the United Kingdom, Portugal or Germany and, ultimately, the general public through its offices, brochures and Web www.altamiraSantander.com.
 
Santander should not look to market benefits here but to restoration and social function of Financial Institutions.
Some other banks with Real Estate divisions are:

Banesto: Promodorus wants to locate his real estate portfolio valued at 1.134 million euros. Has launched the website Banesto Vivienda.

Banco Sabadell: Solvia Gestión. 80% of assets are concentrated in Catalonia and Madrid and the remaining 20% is shared by other communities. The group released between employees and family members a first development of 65 houses at a price 25% below the market two years ago.

Banco Popular: Aliseda includes its properties in its website www.bancopopular.es

Caja de Ahorros del Mediterráneo through its real estate division CAM sell Real Estate Opportunities.  Around 475 flats with discounts of 20%. It also offers 100% financing, which is very advantageous in a time when many institutions are hesitant to fund only 80% or less.

Caixa Catalunya
was the first to make available to the public 3,000 housing units located throughout Spain. The name of its web is
www.procam.net, and contains flats with discounts reaching 30%.   They offer special mortgage solutions for the acquisition of a house and also the option of renting. They also have external agents for marketing their houses and its network of 1,200 branches.
 
Unicaja is currently studying various ways to market its real estate.

Price reductions over 20% are considered necessary by the experts in order to sell these units.
 
What do you think?
 

By Maria L. de Castro

web@costaluzlawyers.es

www.costaluzlawyers.es

 

 

 
 
 Plaza del Duque´s free market, Seville.
 


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Legal Tip 54. Cancellation of Home Insurance contract
06 March 2009

The contract can be cancelled by either party.

*The insurer may proceed with the cancellation in the following cases:

1. If the insured has lied or concealed regarding the necessary data provided for the hiring of the policy. In these cases, the insurer has a month since that circumstance is known to cancel the insurance.   The insured will not be entitled to reimbursement of any premium for the time remaining to fulfil the term of the contract unless it is proved that he did not act in bad faith.

2. If during the contract, the risk covered by the policy is increased (for instance: less security of premises, more objects than initially).

In these cases, the insurer can either cancel the contract or propose a change in the conditions of it,which, if not accepted, will entitle the company to terminate the contract, in both cases he will be obliged to pay back the proportionate part of the premium.

If, in bad faith, the insured person conceals to the company a situation that exacerbates the risk covered by the policy and this is materialized, i.e., the incident is covered by the insurance (theft, fire, flood, etc.). , the insurer may be free to pay compensation.

In cases where there is no bad faith, the insurer is only obliged to pay the difference between the contracted premium and that which would have derived from the increased risk.

3. The insurer can cancel the insurance if the object is sold. He will repay the outstanding premium.

*The insured may also proceed to the cancellation of the insurance contract on the following cases:

1. When there are circumstances that have made the risk decreased, so the premium should be reduced and the insurance company does not agree on the reductions.

In these cases, the policyholder is entitled to receive the difference between the premium he has paid and that other which would have corresponded due to the decrease of the risk.

2. When the consumer buys an insured object and he is not interested on the Insurance hired for the said object.
 
 
 
 Bolonia Beach by Aroma de Limón af Flickr.com
 




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Legal tip 53. Homeowner Insurance (Part I).
04 March 2009

Homeowner's insurance (Part I)

Homeowner's insurance (seguro del hogar) covers:
 
-         The house itself
-         Everything inside
 
…against a huge number of different risks at your choice. Of course there are more or less complete policies and insurance contracts. Just to mention some of the risks that may be covered by a homeowner insurance: firesexplosions, rays, fumes, electricity shortcuts, super voltage, escapes, inundations, leaks, thunderstorms, icing, robs, vandalism, salvation measures… expenses for fireman work, salvage, provisional accommodation, documents reposition, cleaning, surveys, placement of glasses…
 
The premium of the policy will depend on the value of the house itself, the valuation of covered objects and the risks you are guaranteed against.
 
There is no law obligation for homeowner insurance in Spain. Many banks, as a condition to borrow you money for the purchase, requires you to insure the mortgaged house at least with the minimum level of guarantee in order to protect the object till the loan is returned.
 
This type of Insurance is the one which causes more claims, according to the reports of the General Government Office of Insurance and Pension Funds.
 
By the time of contracting the home insurance is extremely important to tune the most regarding the continent and the content, because otherwise the contract would be ill-suited to reality, causing possible problems in the future.

The market offers many varieties of home Insurances; even the same Company usually offers several options for potential claims that may arise in the home. It is necessary to do a reasonable study of the different products and see which one is most appropriate to the needs of the user.
 
The insurance contract needs to be written in a document (policy) and need to cover a number of details:

- Full name or names of the contracting parties and their home, as well as the designation of the insured and beneficiary, if any.

-The insured concept.

-Nature of risk covered.

-Insured objects and location of same.

-Sum insured or scope of coverage.

-Amount of premiums, surcharges and taxes.

-Maturity of the premiums, place and method of payment.

-Duration of the contract, indicating the date and time you begin and end their effects.

- If an agent is involved in the contract, the name and type of agent needs to be mentioned too.
 
The documentation of the policy consists of two documents of great importance and should be reviewed before the actual signing of the contract. These should identify clearly the exceptions and situations where the insurer will indemnify the beneficiary of the insurance (these are the general and special conditions of the contract).
 
The vast majority of insurance claims tend to be motivated precisely because consumers assume that certain risks are covered when they are not. As you may know… the clue is in the exceptions of the General Conditions.

It is most advisable to do a “proposition of Insurance” this proposition has no binding character for the consumer and once the offer is made by the Insurance Company, it will be active for fifteen days.

The Insured contract period will be determined by the policy, which may fix a time not exceeding ten years. However, the period may be extended one or more times for a period not exceeding one year each time. The parties can oppose the extension of the contract by written notification to the other party. This needs to be made within a period of two months prior to the completion of the current period of insurance.
 
 
 
 Caños de Meca ( Cadiz) beach by cabezadeturco at Flickr.com





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Legal tip 52. Bank of Spain. Complaints service
03 March 2009

For your information,from Bank of Spain´s website ( www.bde.es)

Complaints Service. Purpose and functions

How it works

The function of the Complaints Service is to receive and process customer complaints about specific transactions of credit institutions subject to the Banco de España's authority. Claims against currency-exchange bureaux which, in addition to buying foreign banknotes or traveller's cheques, are also authorised to sell or transfer them abroad, are likewise addressed. The Complaints Service acts whenever the foregoing activities involve the possible infringement of norms of discipline or good banking practices and conduct. Complaints are processed free of charge.

The organisation and functioning of the Complaints Service are regulated under the Ministerial Order dated December 12th 1989 (Official State Gazette of December 19th) implemented by the Banco de España Circular 8/1990 of September 7th (Official State Gazette of September 20th).

Who can lodge a complaint?

Any individual or company that is a customer of a credit institution can lodge a complaint concerning concrete transactions that affect them.

Prior procedures

Before the Service can receive or process a complaint, the interested party must present evidence that the complaint has already been lodged in writing with the customer complaints department, or its equivalent, of the credit institution in question. This department must provide written evidence of receipt of the complaint presented.

If the customer complaints department refuses to handle the complaint (on grounds that must be justifiable), if the customer does not consider the solution given to be satisfactory, or if the complaint is not resolved within two months of its presentation, the interested party can then file a complaint with the Service.

For this purpose, an institution or group of institutions is considered to have established (or to be formally committed to) an institution or department created for the purpose of safeguarding the rights and interests of its customers, having notified the Banco de España to this effect.

Causes of Complaints

Infringement of the norms of discipline or good banking practices and customs.

Disciplining regulations: These are laws and administrative provisions of a general nature that contain precepts specifically relating to credit institutions, which are obliged to observe them. Among these provisions are both those approved by State bodies or, where appropriate, by the Regional Governments with responsibility for this area, and the Circulars approved by the Banco de España, under the terms envisaged in the Law dated 29th July 1988 on the Discipline and Intervention of Credit Institutions.

Banking customs: These refer to commonly accepted trade and banking customs.

Good banking practices: These refer to practices that do not figure in disciplinary norms or constitute banking customs but which can be reasonably required for the responsible, diligent and respectful running of banking business.

The Complaints Service does not handle complaints relating to matters of business policy (the denial of a loan, for example) or those falling within the jurisdiction of the system of justice. Nor does the Service evaluate any possible damages or order the payment of any pertinent amounts.

Likewise, the Service does not accept complaints that are subject to legal proceedings or court litigation. Nor does it accept complaints lodged by the customers of credit institutions that refer to transactions or events dating back more than five years.

How to lodge a complaint

It should be submitted in writing and include the following information:

  • Name, surname and address of the interested party and, if applicable, the same data of the person representing the party and authorisation to this effect. National identity card number (DNI) in the case of individuals, and public registry data in the case of companies.
  • Corporate name of the firm referred to in the written complaint, and the office or offices where the events that gave rise to the complaint occurred.
  • Description of the events, reasons and request, specifying clearly the matters for which a resolution by the Service is sought, expressly stating that these matters are not the object of any legal litigation.
  • Documentary evidence of the complaint's prior presentation to the customer complaints department (if such exists) of the institution in question and, if applicable, the refusal to accept the complaint or the solution given.
  • Place, date and signature.

The interested party should also present documentary evidence in support of the complaint lodged.

Processing the complaint

On receipt of the complaint, the proceedings begin. If the identity of the interested party or the institution affected is not sufficiently clear, the events that caused the complaint are unclear, or no evidence is presented that the complaint has already been lodged with the customer complaints department, the party signing the request will be asked to furnish this information within a period of ten days.

Before the proceedings are concluded, the institution in question must be heard. The institution has 15 days to respond to any questions, after which, if these questions are left unanswered, the proceedings can continue.

As a general rule, the proceedings conclude with a reasoned report. It must contain clear conclusions, stating whether the events in question indicate an infringement of the norms of discipline and whether the institution has acted in keeping with good banking practices and customs. The report has no executive attributions.

Effects of the complaint

If the credit institution acts on the report and rectifies its situation with the party who lodged the complaint, as indicated in the conclusions, it should notify the Banco de España within one month of receiving the report, and the case is then closed. If no such notification is received in this period, the proceedings will be included in the records for any legal effects that may be in order.

If it is deduced that the institution's conduct represents an infringement of the norms of discipline or indicates criminal conduct, a tax offence, violation of regulations on foreign exchange, consumption or fair trade, among others, the Legal Services will notify the Executive Commission of the Banco de España to this effect.

Moreover, in the event the parties settle or abandon the action, irrespective of the responsibilities of a disciplinary or other nature that may be appropriate, the Complaints Service is authorised to present to the institution any recommendations it considers pertinent.

As stated, the reports of the Complaints Service are not binding for institutions, and nor may appeals be made against them.

Address of the Complaints Service

Banco de España
Servicio de Reclamaciones
Alcalá, 48, 28014 Madrid

Telephones: 913 385 068 and 913 385 851

Annual Report

Every year the complaints service publishes a report including a statistical summary of the cases processed; the description of the complaints the processing of which has concluded in favour of the claimant, expressing the criteria justifying the rulings, the institutions concerned and the infringements or improper practices in question; a summary of the criteria applied in rulings favourable to credit institutions, when they are of general interest to the public; and a summary of the complaints where, owing to acceptance of the claim by the defending institution or abandonment of action, no report has been delivered.

An electronic edition of the latest Annual reports is available on this site ( www.bde.es).

 

By Maria L. de Castro

web@costaluzlawyers.es

www.costaluzlawyers.es

 

 Cadiz by night. Cabezadeturco at Flickr.com



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Legal tip 51. The Hague Apostille
02 March 2009

One commun question by my clients when they are granting to me power of attorney in the UK is : What is that of the Hague Apostille? It was time for me to introduce you to a good explanation of this.

The Hague Convention abolished the requirement of legalisation for foreign public documents on the 5th in October of 1961 and this convention entered into force on the 24th in January of 1965.

Which documents need to be apostilled?

 

 

 

Public documents emanating from an authority or official, such as:

 

 

 

- Documents from a court or tribunal of the State (including documents issued by an administrative, constitutional or ecclesiastical court or tribunal, a public prosecutor, a clerk or a process-server);

- Administrative documents;

- Notarial acts;

- Official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.

Which documents are apostilled in practice?

 

 

 

Birth, marriage and death certificates; extracts from commercial registers and other registers; patents; court rulings; notarial acts and notarial attestations of signatures; academic diplomas issued by public institutions.

The provisions of the Convention do not specify whether Apostilles should only be issued for original public documents or whether they may also be affixed to certified copies of public documents. However, in light of its practical importance, this question was expressly addressed by the 2003 Special Commission (SC). The Conclusion / Recommendation N° 11 of the meeting reads as follows: "Regarding the application of an Apostille to a certified copy of a public document, the SC concluded that Article 1 of the Convention applies. Individual States, however, may decline to issue an Apostille to the certified copy of a document on the grounds of public policy".

 

 

More information can be found at the official website of the Hague Convention, including the full text of the Hague Convention on Apostille.

 

By Maria L. de Castro

web@costaluzlawyers.es

www.costaluzlawyers.es

 

 

 Caños de Meca ( Cadiz). By cabezadeturco at Flickr.com

 

 

 

 

 

 



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