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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 334. Unemployment benefit for the self-employed
17 August 2010

Act 32/2010 of the 5th August sets out a benefit system for the self-employed who stop working.

A report was prepared by a group of experts and was presented in December, 2008 by the Minister for Employment and Immigration.  This represented a starting point for the development of a pre-law study on a system of benefits specific to the self-employed who stop working.

Using as a reference the experts’ report and observations made by associations of autonomous workers and social experts, the Ministry of Employment and Immigration put together a proposal which was analyzed and reviewed by the aforementioned groups.  Final consideration was given to the report issued by the Economic Social Council.

The Law states that, in order to be able to enjoy the right to benefits due to the cessation of work, self-employed workers must pay their social security contributions continually during a minimum period of 12 months immediately prior to the date of ceasing work.  This would give them the right to 2 months of benefits.  A self-employed person who, in 2011 expects to claim unemployment benefit will have to pay extra social security contributions throughout 2010.

The system which has been designed to allow the self-employed to be able to claim unemployment benefit is based on the principles of contribution, solidarity, and sustainability.  It is a mix between being voluntary and obligatory so, to be able to claim unemployment benefit, the self-employed will have to make contributions for work-related accidents and illnesses, something which until now has been voluntary expect in specific cases such as that of Economically Dependant Self-Employed Workers (self-employed people who depend on one single client for at least 75% of their income) or, in the future, in the case of the self-employed who operate professional activities with an increased risk of occupational hazard.

The amount of benefit for ceasing work in the case of the self-employed will be a minimum of 583.38 Euros per month and a maximum of 1,389.90 Euros per month.  The exact amount throughout the entire period of entitlement will be equivalent to 70% of the base for which the worker was making contributions during the 12 months prior to the end of their period of self-employment.

The length of the period of entitlement will be between 2 and 6 months, depending on the period of contributions and in cases of self-employed workers being between 60 and 64 years of age, the length of entitlement will be a minimum of 3 and maximum of 9 months.

Specifically, the self-employed who have made contributions over 12 to 17 months will be entitled to two months of benefits, those who have made contributions over 18 to 23 months will have 3 months of benefits, those who have made contributions over 24 to 29 months will have 4 months of benefits; 30 to 35 months of contributions will guarantee 5 months of benefits and 36 months or more of contributions will give 6 months of benefits.

The period of benefits will be related to the periods of contributions made within the 36 months prior to the legal cease of work, of which at least 12 months must be continuous and immediately prior to said cease of work.

Natural Park of the Strait of Gibraltar by Roberto Pecino at Flickr.com



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Legal tip 333. Vehicle accident report form
17 August 2010


The majority of accidents in Spain are processed by the CIDE/ASCIDE agreement.  These are accidents in which a vehicle accident report form is completed.

The difference between completing an accident report form correctly and incorrectly can mean a delay of many days in the satisfactory resolution of the accident and the repair of the vehicle.

Three in every four drivers do not know how to use the accident report form for many reasons such as the stressful circumstances following a traffic accident which can reduce our response capabilities, the technical language used in the form itself and not taking sufficient time.

The most frequent mistakes made by drivers when filling in the accident report form are, amongst others;  the apportioning of blame which is not their duty, but the duty of the insurers, the drawing of the diagram of the accident or the lack of details which is generally limited to taking the details of the other party and obtaining their signature without having reflected on who is responsible for the accident.

The consequences of not correctly completing the accident report form can give rise to various issues; it becomes more difficult to prove the facts and responsibility, there are delays in the periods for claims and the resolution of the accident and, consequently, the repair to the vehicle.

Advice:

The most important issue in this situation is to avoid a further accident, so therefore you must immediately move the vehicles to the nearest safe place.  If it is not possible to move the vehicle  due to the damage caused, make the situation as visible as possible to other drivers.

If possible before moving the vehicles, take photographs of the vehicles involved showing their final position in relation to the road on which they were travelling.

Never argue with the other party concerning the blame for the accident for two fundamental reasons.  Firstly, as previously mentioned, it is the job of the insurance companies to assign responsibility and secondly, this information is not required on any part of the accident report form.

Nevertheless, there are many reasons why the presence of the police may be required, such as if the accident is serious, there are injuries, the other party attempts to or has fled the scene of the accident, if one of the drivers is found to be under the influence of alcohol or drugs, when more than two vehicles are involved and errors can be made in putting together the various reports, when the other party refuses to identify himself or when he/she refuses to sign the declaration after having completed it.

If the accident is between people of different nationalities, the Green Card or the international insurance must be requested.  The accident report form may of course be completed in a foreign language as the headings are numbered for translation purposes.

Villa Capistrano, Nerja, Málaga by Roberto Pecino at Flickr.com

 



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Legal tip 332. A new corporation Law
17 August 2010

The Corporation Law (LSC) whose adapted text was passed as the Royal Legislative Decree 1/2010 of the 2nd July, and came into effect from the 1st September of the same year, has meant more of a formal than actual change in the rights of companies, as its main aim is not the introduction of new rules but the summarizing of various existing laws in one single document.

The new modified text brings together, in over 500 articles, the mandates which until now, were spread across four regulations which are now either totally or partially abolished following the introduction of the LSC:  the Public Limited Company Law (LSA), Private Limited Company Law (LSRL), section 4ª of title I of book II of the Business Code (CCom) and title X of the Market Value Law, referring to limited partnerships and listed companies respectively.

The LSC is pressing to move forward towards a unification of all business law, culminating in an eventual codification:  “the general wish is that the entirety of general law which applies to trading companies, including that which is applicable to personal companies, is contained in a single legal entity, which will overcome the continuing legal plurality which the present text revokes but does not entirely eliminate”.

Bringing the business laws together in a single text, it is made clear that these are applicable to the three different types of capitalist companies, except in such cases where it is expressly specified that it only applies to one or more of them, or in other cases where there are nuances or different ways of dealing with the same question in one type of company than in another.  In the case of by-laws, for example, article 23.e of the LSC requires that Public Limited Companies indicate what their type of management structure will be, and allows Limited Companies to include various  options, letting them pick that which they consider most suitable.

In the next few years, this unification will lead to the creation of a new Business Code which will substitute the old text which has been in place since 1885 and bringing it more into line with the corresponding laws established in Europe.

By Jesus Castro

Typical house of Castellar castle by Roberto Pecino at Flickr.com 



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Legal tip 331. Farm houses- a business and a home IV
13 August 2010

 

Now... you want obviously to be sure that the land and the house you are watching and which is said to be the object of your sale contract is what will legally be yours in documents and, most importantly, in the Land Registry.

And are wondering what the cadastral certificate and the Nota Simple are to this extent?

-The cadastral reference is the official and binding physical identification of a property. It is a twenty character code.


-A “Nota Simple Informativa", a much more important document that the Cadastral one is the ultimate ownership legal description and title. It is a document issued by the Land Registry that shows the most authorized legal information about physical data, legal title, description, location, charges, encumbrances, easements…of a particular plot. The Land Registry is public for those who demonstrate a legitimate interest in its consultation. There is a legal motto which says" What is not in the Land registry it is not in the traffic"


You will legally acquire or transmit what is on the Land Registry.


If Land Registry, Cadastre and reality do not coincide, it is advisable for you to start the adequate procedures for all these documents to coincide for your benefit and protection. You might need the aid of a topographer to this aim. Then, some legal procedures before the Land registry will have to be followed for your property to be registered in accordance with reality.

The most common two procedures before the Land Registry to match legal data with reality are “Exceso de cabida" procedure and "Obra Nueva" procedure.

We will explain about this in next post.

Have a great summer weekend!

Maria

 

 Benalauría, Málaga by Roberto Pecino at Flickr.com

 

 



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Legal tip 330. Farm houses- a business and a home III
10 August 2010

 

You finally found that special plot with house in rural land in Ronda where you plan to build the rural little hotel. You are dreaming of the amenities you will set for the guests: horse riding, hikking, climbing, cannoing.... all under the Andalusian sun.

 

You set an appointment with the local owner to take a look to the farm house and land,  see each other in a picturesque "venta" in the outers of Ronda, have a quick "carajillo" (coffee with brandy) and make your route to the "land of promises":

- Beautiful! but... how big? you ask while you see the eyes of the owner turning left and right and his mouth starts telling you... well..... in the catastro.... but .....in the Land registry..... but .....in the private contract.......( which was made on an old napkin of that same old venta you had your carajillo half an hour ago: fully valid under legal terms). What a mess oh dear!

Yes, it is a kind of funny puzzle which better needs a legal expert to be quickly assembled.

Let´s see about borders today as it seems.... they are not too clear :(

The action of demarcation is described in Articles 384-387 of the Civil Code. It is an easy, rapid and economical procedure whose purpose is to invite the owners of neighboring properties to submit the relevant titles for an agreement on borders.

Of course you can always reach an agreement out of court, through the parties' lawyers, who then can notarize it and record it accordiongly in the Land Registry.
If no agreement is reached by the parties, you can have the Judge deciding on this through the mentioned quick procedure.

How can you prove ownership on an area under dispute?

Of course by corresponding legal ownership titles, if they are clear. If the legal titles show no clear division, this can be obtained by the result of possession. Possession is showed through any signs of the land being used by any of the owners ( materials placing, fencing, planting, pictures, painting, writings...).

Expert surveyors can also issue a report on the demarcation of lands.

Other documents that show evidence: Notary deeds, Catastro certificartions, Planning department certificatons...

More on your farm tomorrow,

Maria

 Window. Country house in Benalauría, Málaga by Roberto Pecino at Flickr.com

 



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Legal tip 329. Publicity is part of the contract and Murcia Room 5 Case Law
09 August 2010

 It is interesting that in the most recent treaty on Consumers protection, published by Dykinson and copyrighted by Proffessor Carlos Lasarte and the National Institute for Consumers of the National Deprtment or Health and Social Policies, two out of the five exmaples of case Law on this topic are from Murcia Appeal Court (Room 5).

There are of course many other examples of this legal obligation ( Publicity is part of the contract) on both regulations and Case Law: from a 1977 Supreme Court Decission to the most  recent Consumers Act, dated 2007 where  it is explicitly stablished the linking character of precontractual and publicity contents.

Provision 61.2 of Current ( 2007)  Consumers Act says:

"2. El contenido de la oferta, promoción o publicidad, las prestaciones propias de cada bien o servicio, las condiciones jurídicas o económicas y garantías ofrecidas serán exigibles por los consumidores y usuarios, aún cuando no figuren expresamente en el contrato celebrado o en el documento o comprobante recibido y deberán tenerse en cuenta en la determinación del principio de conformidad con el contrato."

[ Contents of the offer, promotion or publicity, specifications of every good or service, economic and legal conditions and guarantees offered will be requirable by consumers and users, even if they are not expressly mentioned in the contract or in the receipt and will hev to be taken into account when determining the principle of conformity with the contract".]

It is so good  Appeal Court, room 5 in Murcia is applying Law so rightfully!

Best week,

Maria

 Valdevaqueros beach, Tarifa, Costa de la Luz, Cadiz by Roberto Pecino at Flickr.com



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Legal tip 328. Farm houses- a business and a home II
06 August 2010

 

Your farm will obviously be located in non building or rural land. Under  a Planning Law point of view houses on non building land can basically be under  these two different situations:

- A house for uses allowed for the Planning regulations: related to agriculture, forestry, hunting, etc ... Constructions of buildings associated with the activity itself to be developed in the soil are allowed. This includes housing, provided such residence is also linked to the operation of the farm. Planning regulations always set a limit in order to impede that new urban settlements arise.


- The second situation our house can  be is not linked to agriculture, forest, hunting… but just linked to the use of purely residential housing.   Circumstances which may have conducted to the existence of these units are very varied, such as caducity of an administrative sanction  or allowance by the Local planning regulations for the existence of the same. These buildings are included within a special regime under which there are a number of limitations on the use of the home. These limitations revolve around the inability to work enlargement of the building and perform general restructuring of the same. Just refurbishment and restructuring works are allowed.

As a conclusion: a house in non building land does not necessarily has to be ilegal, every single one has its own planning regime applicable, therefore, an individual research on planning regulations applicable to each one of them is always necessary.

More on your farm-house in Spain tomorrow.

Best regards,

Maria

 

Tarifa Beach by Roberto Carlos Pecino at Flickr.com



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Management tip 25 . PostCrisis Values: simple proposals XIX
06 August 2010

Today´s: Self  knowledge

A quote by a great person: "A man should first direct himself in the way he should go. Only then he should instruct others" Hindu Prince Gautama Siddharta, the founder of Buddhism

Direction cannot be given if the director does not know where he  is going, why he is going there, when it is necessary to stop and rest, when to run fast..External indicators, persons of wisdom you can trust can give the necessary mirror for directors to know themselves and be able to better lead others.

The Costaluz Lawyers team 



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Legal tip 327. Farm houses- a business and a home
03 August 2010

An old spanish farm to be refurbished.... a dream: a way of living and a business.

It seems that you english, plus french, belgians and northamericans are the main buyers of these type of properties in Spain these days.

We are starting today a number of articles on the necessary legal checks for buying this type of properties.

A quick list:

- Land classification

- Ownership title of seller: charges, encumbrances, possible rights of heirs...

- Refurbishment rights on built elements

- Possibilities for new elements to be built

- Preference rights of Natural Park or adjacent owners

- Access rights

- Irrigation rights

- Well rights

- Dividing walls rights

- Easement rights and obligations

- Telecommunication access rights

- Catastral and IBI verifications

...

I am sure you are going to enjoy  this serie... and who knows?... maybe any of you finally make the decission on moving to Spain. As always, first thing to find is a good, independent lawyer of your trust different to that of the estate agent of seller.

Best wishes, Maria

HDR de los paisajes del tren Algeciras - Bobadilla por Roberto Carlos Pecino.

 A view from the train near Ronda by Roberto Pecino at Flickr.com



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Legal tip 326. August and "cerrado por vacaciones"
02 August 2010

Against what is thought and sometimes "lived" by many foreign people in Spain, August is not a whole-month-of-holiday eveywhere in Spain.

Political and Courts vacations are in August, this is official. Schools and Universities are all closed from around 15th of June to around 15th of September,

For the rest of the cases, we all just have 20-30 working days a year of vacations that every worker/company takes when it suits them. Of course many people take them in July-August due to the hot....sometimes unbearable... yes,  we know you love our unbearable hot.

I am pasting here the Work calendar of our Work Ministery. Just in case any of you have the curiosity.

Have a great August, wherever you are and whatever you are doing or not doing :)

Best  summer wishes,

Maria

Gibraltar por Roberto Carlos Pecino.

Gibraltar by Roberto Carlos Pecino at Flickr.com



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