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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 325. First Occupation license ( Edited version)
30 July 2010

The First Occupation License is a license which states that what it has been built  is adjusted to the  work Project who obtained License by the Local Planning Authorities.

The FOL verifies if the building can be assigned to its legal use, because it is located in a proper  planning zone and if  it meets the basic safety and health conditions. It also confirms that  the builder has fulfilled his commitments on urbanisation of the surrounding land.

Regarding FOL and completion, Consumers specialists state:

1.- The seller who signs the public deeds of purchase without FOL ( First Occupation License) is in breach of contract even if the house has been physically handed over, because the ownership rights that he is trasmitting are not valid for the use of the house till the FOL is granted.

 2.- The buyer can refuse to the signing of the deeds till the FOL is granted if the completion date was fixed for anytime after the end of the work, and the seller cannot cancel the contract due to this negative of the buyer until he fulfills his contractual obligations ( after obtaining the FOL).

 3.- The buyer can cancel the contract ( even after the signing of the deeds), with full devolution of amounts, interests and compensation of damages if after the completion date, either  the deeds having been signed or not, the building does not have the FOL.

4.- If the buyer decides not to cancel the contract, he must not occupy the house, even when having being formally handed over, because that would involve an administative infringement and because he can be deprived of its use by the competent Administration

Also , the Ground Act dated the 28th of May 2007 establishes in its provision 19 that the Notary deeds of " Under construction New Work " which are granted at request of developers when starting the building of a work require the existence of Work License. No Notary can sign a New Work deed without such license.

Provision 19 also establihses that the deed for the end of work will need the verification by the Notary on the existence of the First Occupation License and therefore deeds for the completion of the purchase business and transmission of ownership rights to Consumers cannot be granted without First Occupation License. In short words:  no house can be acquired without that license

 

 



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Management tip 24. PostCrisis values: simple proposals XVIII
30 July 2010

 Today´s :Love

A quote by a great person: " If you judge people, you have no time to love them" Mother Teresa of Calculta

And a paragraph from a recent management book: 

Desde la empresa, con amor

 

 

 

Argandoña Rámiz, Antonio

 

 

 Editor: IESE

 

"En cualquier caso, lo importante en un acto realizado por amor, aunque sea imperfecto, no es el resultado, sino la acción. Una acción es éticamente excelente cuando el agente busca el bien del otro, aunque no le conozca (como un cliente, por ejemplo), aunque esté equivocado sobre lo que es bueno para el otro, o incluso aunque la reacción del otro sea contraria a lo que él esperaba. Y la excelencia no debe obviarse en una empresa si quiere llevar a cabo su actividad con eficiencia"

"Anyway, the importance of an act made with love, even imperfect, is not the result, but the action. An action is excelent from the ethical point of view when the agent is looking for the good of the other person, even not knowing him/her ( as a client, for instance) even when the agent is wrong regarding what is good for the other one, and even when the reaction of the other one is against what it was expected by the agent. Excellence cannot be forgotten in a company if this is looking for efficiency"

 

 



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Legal tip 324. Community of owners and data protection, II
29 July 2010

Administrators must observe professional secrecy regarding the data they use in the performance of their duties as administrators and should also guard them. These obligations will remain even after the end of their relationship with the owner of the computer file or, where appropriate, with the operator.

In the event that the relationship between the Administrator and the President breaks, the Administrator needs to return the data to the community and block the information that has been needed for tax purposes for a period of four years, after which he needs to suppress them

If the administrator or the President would cede data for commercial purposes, we would face a case of transfer of data that requires the express consent and previous information by the person in charge of them, the purpose for which the same are transferred, the nature of data, and the name and address of the recipient.The breach of these obligations, contained in provisions 11 and 27 of the Data Protection Act implies fines from 300,000 € to 600,000 € as they are classified as very serious (Article 44 and 45 LOPD).

Regarding the file of debtors of the community, it is required that they are managed commensurately to the purpose of debt collection and the manager must always act diligently on the updating of these debt status, charges, payments...

July is finishing.... how time flies!

Jardines de los Reales Alcázares de Córdoba por Roberto Carlos Pecino.

Gardens of Cordoba Reales Alcazares by Roberto Pecino at Flickr.com

 



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Legal tip 323. Community of owners and data protection, I
28 July 2010

The responsible party regarding protection of data of owners in a Community of Owners is the Community of Owners itself, through the figure of its President or Board of Directors.

The President of the community is entitled to access these data by the very title of President that the Community has given to him, so he is not required to obtain any specific consent for accessing the same, when necessary for the performing of his obligations with the Community of owners.

However, it is recommended that, by any of the means used by the community to inform, the different co-owners are informed on  (i)the existence of a file of personal data, (ii)who is responsible for the file (President or another member of the Governing Board),(iii) where they can exercise their rights of access, rectification, cancellation and opposition, and in general, the parameters laid down in Article 5 of the Protection Data.

The Admnistrador de Fincas (a third party- individual or company-) hired by the Community to act as Secretary of the same is merely a user of these data. 

If the Administrator has been entrusted with data custody care by the Community, he is also responsible for the custody and access to the same.  The custody/access duties need to be clearly regulated in the contract relationship between Community and Administrator.

( more to follow tomorrow)

Maria

 



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Legal tip 322. Banks´arrogance and Law 57/68
27 July 2010

I just read this post in Kyero today, and was wondering if this scenario: Bank´s ultra-arrogance, will change once first strong Court decissions stating their liabilities out of provision 1.2 of Law 57/68 start coming out. I am sure it will.

So, lawyers, judges... come to the battle! : the good health of our economy needs it.

Banks,  with their  irresponsable over-credit have been the origin of all the disasters related to off plan purchases during the boom days.

Banks, with their irresponsable immobilism, are now being the cause of the current semi-stagnation of the market.

Why can they be in this position? Because we are allowing them to be.

Yes, if we start asking them for liabilities out of provision 1.2 of Law 57/68, we will see how their position change.  Now, they have all the rights and no liabilities, all the control and this is stealing life to the market.

There is no other alternative for the correction and balance of this field but to start acting 1.2.

Come and make our company on this.

Maria

De paseo por Roberto Carlos Pecino.

Paseando (Tarifa, Cádiz) by Roberto Pecino at Flickr.com

 



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Legal tip 321. Illeegal Bank Guarantees: partial coverage
26 July 2010

As per Banco de España´s opinion, Law and  Case Law , Law 57/68 guarantees , by force of Law,  beyond whatever  the contract parties have agreed,  are always , for the total amount consumer has paid  plus legal interests since payment.  Regardless of the amounts actually written in the guarantee document.

Again, this is a conseuqence of the Public Interest character of this Law and the inalienable character of the rights created by the same.

Alcaidesa por Roberto Carlos Pecino.

Alcaidesa by Roberto Pecino at Flickr.com



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Legal tip 320. Abusive clause: limiting ownership rights
23 July 2010

Supreme Court .Decission dated 17th of March 2010.

It is abusive the clause included in the purchase contract of an apartment  by which the buyers need to rent the units through the company chosen by the developer ( buyer).

The legal basis for the abusive character of the clause in an unjustified limitation of rights linked to ownership ( use and occupancy: possession) and the unbalance of contract parties.

Have a great weekend!

Maria

 

Cal y Cielo - Benalauría, Málaga por Roberto Carlos Pecino.

Cal y cielo (Lime and sky) Benalauría, Málaga by Roberto Carlos Pecino at Flickr.com



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Legal tip 319. Law 57/68, Obama and Greenpeace
22 July 2010

What a combination! Isn´t it?

Yesterday, at the Ronald Reagan Center before 400 leaders from public and private arena Obama said again that the cornerstone of the financial reform is based on consumers’ protection.

As you know, we like understanding Consumers Law as the Law field for the protections of PERSONS ( there families, there society...) before the wild forces of markets, whatever market, of course, and even principally the financial market.

Financial wildness has damaged economy, according to Obama´s speech yesterday. In Spain´s case, it has damaged economy and nature: the beauty of our coasts has been directly impacted by the voracious appetite of Wall Streeters. Ask Greenpeace and their reports on Spanish Coasts!

It seems that among the invited to yesterday´s Obama event at Reagan Center in DC were two citizens who have been damaged by the excesses of Banks who were remarked by the White House and the beneficiaries of the reform.

In Spain once Banks start to honour their liabilities attached to Law 57/68, both when existing and when non existing Bank Guarantees, a  new, person oriented status after the crazy, ultra-benefits style of  off plan businesses of the boom years will flourish finally.

Law 57/68 entrusted the balance of these off plan risks to Banks. Now, Spanish Banks, together with the stress tests need to demonstrate they carry on with their liabilities when they are asked bout them. Many citizens damaged by excesses of Banks will be given back what is theirs.  It will be very soon, we are certain about this.

By the way....how is your summer in Spain going?

Best,

Maria

A dormir por Roberto Carlos Pecino.

 Sunset in Sierra de Grazalema by Roberto Carlos Pecino at Flickr.com

 



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Legal tip 318. ejustice europe
19 July 2010

An useful european tool: https://e-justice.europa.eu  For mutual knowledge of the different legal systems in Europe

Enjoy it!

Maria

Plaza del Ayuntamiento, Tarifa por Roberto Carlos Pecino.

Local Council square in Tarifa by Roberto Carlos Pecino at Flickr.com

 

 

 

 



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Legal tip 317. More on restoring Balance: Banks responsabilities
17 July 2010

 

According to specialist economists, financial entities, which are these days the main owners of properties on sale these days, are the distorting element of the estate market: they set the prices as they act selectively in some areas in order to sell quickly and are just reducing prices for those units coming from repossessions. They are also committing again same errors as of the real estate boom years ( 100% financiación)

 

I can see why: Banks have been, by force of not honouring Bank Gurantees and also due to lack of claims against them which should be performed by consumers without Bank Guarantees,  the only unharmed actor within the off plan real estate chain.

Privileged charges on properties, privileged positions in creditor´s meetings…. but most importantly, general avoidance-- due to lack of claims-- of their responsabilities established mainly in provision 1.2 of the 57/68: all these equal to the powerful position they have right now.

Things will start changing once Judges start passing  decissions by which Banks are made liable of lack of Guarantees for off plan contracts. The correspondent claims need to be placed in Courts first, obviously.

A matter of BALANCE again, as we said yesterday.

Have a great Saturday!

Maria

Casco Antiguo de Tarifa por Roberto Carlos Pecino.

Oldtown Tarifa by Roberto Carlos Pecino at Flickr.com



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Legal tip 316: Golden days finally. The Restore Action III
16 July 2010

BALANCE: That´s the ultimate reason for our beloved fights on protection of consumers rights for those who bought off plan during the real estate boom.

There was no care for consumers rights , standards, good practices those days... not just because developers or banks ( the counterpaties, the selling forces), were not interested on that but also because buyers themselves were somehow trapped by the enchants of future  possible benefits if reselling. When buying those days, the analysis was not legal but commercial in most of the cases.

Anyway, whatever the mind of the consumer was busy about those past days,  the force of the market is always  stronger  and individual buyers are always in a position of weakness, that´s why consumers law was enforced and developed more and more during the last consuming decades.

Undefined starting and completion deadlines, no explicit reference to work license or registral plot, no communication on the progress of the building work, lack of Bank Guarantees or insurance policies, no communications of delays with the offer of an option between cancelling or extending with compensation as Law 57/68 establishes..... none of these existed. I think they were not even missed.

But it is not still too late: with proper legal actions at hand ( either for cancellation) or COMPENSATION: price reduction due to breaches by developers , conducted by a good lawyer with good knowledge of Consumers Law, it is already possible to restore the balance of the contract relationship for the benefit of all.

This is the same as saying that you could end up buying your home in the sun at a balanced price with full safety and rights at hand. Golden days are here finally. We are seeing some of our clients buying their properties at reduced prices with full legal safety in the same developments they bought many years ago at exorbitant prices and  through a contract full of abusives and illegal clauses: we are reaching our dream.

That´s why we call our most performed legal/ judicial action: the restore action.

You can read more on this action by clicking on here and here

Have a great weekend. It is Feast Day in Algeciras today.

Enjoy your simplest wonderful things!

Maria



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Legal tip 315. Banks need to honour photocopies of Bank Guarantees
15 July 2010

 As expressly stated in the year2008 Memo of the Bank of Spain´s Claims service, if the client just holds a photocopy of the Bank Guarantee but renounces to all rights attached to the original copy of same, the financial entity needs to honour the Guarantee.

A straight claim before  the Bank clients´defensor and Bank of Spain claims service will finally work for sure if your branch does not want to give value to your photocopy.

We obtained a refund from a Caja ( and a tough one!) just by using these arguments last week.

Cheers from Algeciras,

Maria

Gibraltar from Sotogrande beach by jdolan at Flickr.com



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Legal tip 314. Expenses related to property purchases
14 July 2010

- When the sale is performed by two individuals, principle of freedom of contract prevails, always provided that clauses and conditions are not against Law, Moral or Public Order.

If there is no particular agreement on Notary and Registry expenses, the rule by Law is as follows: the vendor pays the Notary deed and first copy of the same and the buyer pays other Notary costs and Registry Costs.

If the sale is agreed to be made free of loans and encumbrances, any expense related to this will have to be paid by the seller.

- Anyhow, it is always important to bear in mind that if the sale is performed between a company and an individual, using an standard contract model drafted by the Seller Company and therefore Cosumers Law applies, every non agreed clause which can involve and unbalance of parties is abusive and therefore null and void.

Campo de Golf - Sotogrande, Cádiz por Roberto Carlos Pecino.

 Sotogrande Golf course, San Roque, Cadiz  by Roberto Pecino at Flickr.com



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Management tip 23. PostCrisis Values: simple proposals XVII. Inspired by Spain Football team
14 July 2010

Today´s: Correctness

A quote by a great person: " One test of the correctness of educational procedure is the happiness of the child" Maria Montessori

Correctness when leading a team consists basically on a deep knowledge of  general human virtues and potential and a particular knowledge of every member of the team: strength and weaknesses, preferences, passions, gifts, advantages, inclinations, motivations, past, personal circumanstances...

It consists on  looking at failures as possibilities to grow and complement each other and on looking at every one´s gifts as tools for the team.

It is art... it basically comes from the heart.

The CostaLuz Lawyers team



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Management tip 22. PostCrisis Values: simple proposals XVI. Inspired by Spain Football team
12 July 2010

 

We are starting today a small serie of posts, within our PostCrisis Values inspired by the Spanish Football team.

 

Today´s : Empathy

 

A quote by a great person: 

 

"Tenderness and kindness are not signs of weakness and despair, but manifestations of strength and resolution". Kahil Gibran

 

Or as Scott Adams says: every act of kindness creates a ripple with no logical end. In our companies, the Value of Heart needs to be re-discovered, re-practised, re-fostered... in order to create well-being among workers, towards clients, even, when litigating, towards the counterparty: a negotiation is always the best outcome.

We cannot leave our human essence when we enter the office, that alteration of our nature does not bring efficiency to our proffessional activities, rather the contrary.



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Legal tip 313. Fast food for Banks
07 July 2010

They created  fast mortgages......, so: back to them. We prefer the old mediterranean cuisine.

That is the animus behind our support to clients who contact us, who cannot pay their mortgage quotas, have no life because of this. We cannot allow our clients´ lifes being absorbed by wrong financial previsions, schemes, structures...

So, we are happy to provide to them all the required information/ services on how to perform a dacion en pago, according to provisions 1175 et seq of the Civil Code.

If you want to read how our civil code regulates this, please click on here



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Legal tip 312. Banks are liable. Case Law
06 July 2010

 A Court Decission from the Higher Justice Court in Navarre, dated the 22nd of December 2008, is clear and categorical when explaining some liabilities of the finantial institutions by virtue of Law 57/68. The value of this Court Decission is equivalent to the National Supreme Court´s.

This Case Law says that the finantial entity is under the obligation of keeping a good development of the guaranteeing relationship, which is, the same as saying that Banks are the ultimate guardians of Law 57/68.

 

It is very good to have this Court Decission already in place due to the level ( first) of the Court which has issued it.  The text also mentions important things such as that the guarantee, which always need to be interpreted to the best protection of the buyer, cover all  paid amounts the buyer can prove

For cases where Guarantees never existed, it is clear that it is also the Bank who is risponsable, according to the very clear provision 1.2 in fine: “ For the opening of these accounts, Banks or Saving Banks, will request, under their responsability, the guarantees established in previous condition”

Roofs in San Roque (Cádiz) by RaMaOrLi at Flickr.com

 



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Legal tip 311. The Restore Action again II
02 July 2010

-Friday, exhausted but still working. What is your passion Maria?

-Together with the maintenance of my family ( obviously), I dream, we all at CostaLuzLawyers dream of all our clients happily buying again in Spain. It never was a better time: we are fighting and fighting and are finding better and more precise support and Case Law in order to deffend that you you have a credit ( for full deposit plus legal interests) against the Bank or Saving Bank which received your deposit and did not secure on the existence of Bank Guarantees.

We do not want to be focused in the past but in the future and... we see you all here enjoying our country.

You are a very important part of Andalucia´s future ( and present). No doubt.

Have a great weekend and join us with the Spanish soccer team!

Maria

Hacienda Olontigui. Aználcazar, Sevilla by Top Rural at Flickr.com



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Legal tip 310. The Restore action again
01 July 2010

This is and old post from September 09, as everyone during the summer season, we do some " repeats ". Classical ideas are always new! Specially now that ideas and case Law on bank liabilities when lack of  guarantees are consolidating.

Legal tip 138. The restore action
11 September 2009 @ 10:24

 If you are in the middle of an off-plan contract cancellation action or are thinking of claiming.

There are many things to be done depending on how the finantial/economic situation developer in the coming months. ( + possibilities of your action against the financial institution you paid your deposit into, for more info on this, please click on here)

First thing to bear in mind is that this is going to be a buyers market for many years ahead, and with that no-pressure by sellers and buyers running the show....


-You can buy with good price and excellent interest rates

-You can rent with an option to purchase, fixing the price in advance.

-If you are pursuing cancellation ( action that can also be called: "restore action": it puts balance in the contract after an abusive old agreement ) You have got several  finantial assets:

-A potential credit against a developer for the refund of x plus legal interests.

- Buying rights on the property in between ( the developer cannot sell to anyone else till the contract is effectively cancelled and your money refunded).

- A better position within the creditor´s meeting ( if that ever happened)

So... it is not just a matter of contract cancellation at whatever cost, it is a matter of re-establishment. Many of the clauses of many of the contracts I have seen duting the last 3 years and a half are corrosively abusive. Repugnant.

I am enlisting some of the games you can play with the above mentioned assets at hand ( but I am not a finances expert.... so please, make your contributions! ):

- You can negotiate a great price reduction with the developer along the judicial proceeding and complete on the property at a much reduced price and with much reduced interest rates

(some clients of us are using this formula now- July 2010)

- You can sell your buying rights to someone else and withdraw  the claim,  negotiate with both developer and new buyer on the payment of the judicial costs ( it seems German and Norwegian have already some money to look for some sun). ( Almost all developers are now ready for settlements of this nature- July 2010)

It is all a matter of some fluctuants, not rigid factors such as:

- Evolution of the market

- Flexibility of developer


but the possibilities are there ( together with many other ones, I am sure)


 that.... together with the awesome sensation of being back in control of the situation ( the contract agreement)  or at least of a great deal of it.

 

What do you think?


 Could we all together transform the current situation in a win-win scheme?


 Please send your ideas and have a great weekend.


 Maria


 

Related services by Costaluzlawyers

Hotel Can Lluc  Ibiza, San Antony de Portmany by Top Rural at Flickr.com



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