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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 443. Spanish Judges pro new paradigm: pro-person
31 January 2011

Last week, several Court decissions in Spain have finally expressed the heart and suffering of hundreds of thousands of consmers and their consumers organisations.
 
First one , of Navarre Appeal Court, as you all know now, which establishes that once the Bank repossess a house after a foreclosure proceeding, cannot keep the claim against any other assets of the debtor. The Court decission is highly controversial as, even being most fair, it is formally against the letter of our Civil Procedure Act, provision 579.
 
Second one , passed by number 3 Comercial Court in Barcelona, which, after losing their home, has brought the status of "free of debt" to a bankrupted couple of retired people.
 
Of course Banks are appealing and are even claiming these new Decissions are against Consumers´ interests. What a .......!
 
The number of foreclosured houses from 2007 to June 2010 was of 230.000 in Spain. 
 

President of ADICAE comments that the Navarre Court Decission is about Judges asking for the reform of Law and opening an innovative way to prestige Justice and deffrend citizen´s interests. SO BEAUTIFUL!

 

Consumers associations very wisely and groundly deffend that the decission on granting a credit is of the financial intitutions so they are who needs to face the consequences of their errors. They also argue that both the inflation and disinflation of prices of houses have been directly performed by financers.  It is unfair that families carry on with all risponsabilities while Banks keep obtaining benefits. 

Judges in Spain are adopting a more pro-person, social position than before. It is a change on paradigm!! Really good newa for us all... finally.
 
Have a great week!
 
Maria 
 
 

 



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Legal tip 442. Brussels guides.Time to listen and obey
31 January 2011

It is time to listen, obey and work: Brussels issues a guide to clarify  to municipalities how to finance public services
 
The European Commission published a guide on January 28th 2011 in order to clarify the public authorities of the Member States, especially local councils, how to finance the services of general interest respecting EU rules on public aids.The guide makes clear that the EU does not impose a particular model of organization of public services but merely  requires the funding not to exceed the needed amounts. In this sense, the guide explicits how to allocate services of general interest to private companies and how to calculate the compensation, as reported by the EU executive.

The document also states the conditions under which the provision of social services may be limited to non-profit companies. It also highlights that the implementation of the policy of liberalization of services does not prevent Member States to continue regulating social services to ensure their accessibility and quality.

Brussels has also published another guide on Friday intended to help public authorities to purchase goods and services in a socially responsible manner while respecting EU rules.
 
 
 Grazalema red roofs by Francisco Dianez Guerrero at Facebook

 



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Legal tip 441. Time share rights in Spain. Part III
31 January 2011

The timeshare scheme can only be formed on a building, property or set of them which are architecturally individual or separated.  All independent units included in it, with the exception of premises, should be subject to the scheme. The building needs to have, at least 10 units. 
 
The same building can be subject at times to a different tourist operation, provided that the rights of timeshare accommodations fall on concrete and specific periods and units. 
 
The annual use/enjoyment period can never be less than 7 continuous days. In every case, within the same scheme, shifts should all  have the same length. The units will also be reserved for repairs, cleaning or other common purposes for  a period of time which shall not be inferior to seven days for each unit subject to the regime.
 
Seasonal Leases of touristic properties , when they are of more than three of them for a period up to fifty years, and where rents are anticipated for some or the complete season,  will be subject to the provisions of this Act, without prejudice of what is established in the Urban Rentals Act ( URA) . Such contracts must necessarily refer to an annual determined season and  specific accommodation
 
Part one and two of this serie here
 
 
 Grazalema with snow

 



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Legal tip 440. Time share rights in Spain. Part II
27 January 2011

Provision 1.4 of Law 42/1998 prohibitted the denomionation of those rights as " multiownership" or any other way containing the word " ownership" or "property".

For this reason, any contract signed after this date in Spain contained the word " ownership or property" ( propiedad) is null and void and you have rights to the refund of money paid plus legal interests.

In Spain, the denomination that was finally chosen, as most appropriate, descriptive and loyal to Law is "derecho de aprovechamiento por turno", which means " right to usufruct and enjoyment in shifts"
 
Publicity or promotion of these type of developments can never either contain the word "propiedad" ( property or ownership)
 
Part one of this serie here
 
 
 Panoramic view, Grazalema by Paco Ramírez at Facebook


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Legal tip 439. The new euro-spanish employment scenario
25 January 2011

Latest government measures to create jobs:

- Reductions in the Social Security payments for part time contracts during the first year: 100% reduction for SMEs and 75% reductions for companies of more than 250 workers. The contracts will need to be indefinite or at least of 6 months duration and the workhours will have to be at least of 50% of the general one. These temporary contracts will also have aids if they are trasnformed into permanent at a later phase.


- Proffessional re-qualification programms for people without unemployment aid directed to fields of potential growth such as: tourism, social assistance and renovable energies. These formation actions will be acompanied of a financial aid of 350 euros to the lower incomers during 6 months. Applicants can be those whose unemploymenty aids will end from february 16th 2011, have incomes lower than 75% of the minimum interproffessional wages, are under 30 y/o and are long term unemployed ( at least 12 months within the 18 months previous to contract)


- These aids will de "dependant on availability" ( hum!) and will be supported by the Social European Fund

Today the distribution of resources among regions will be known.

I can see these measures as an urgent and desperate resource to somehow pretend to give a response to the current situation of unemployment in Spain and I do wish this will solve the economies of  a good number of families in my country but, the real solution to he problem necessary passes through a deeper renovation in the field of education and proffesional qualification and motivation for the years to come.

Starting with the sense of that being spaniards now necessary, unavoidable, (probably luckily) means to be european first and that in order to fit oursleves within the european market of product and services we need to know, understand and promote in a very deep and proud level what is peculiarly ours and irrepeatable spanish.

Then some actitudes before training and education such as : proactivity and collaboration,  international drive, friendly competitiveness, ethical networking, ecology of technology, ownrespect who comes from ownknowledge, marketing tools with a person oriented taste, sense of european community and belonging.....

Are you up for a brain-storm on this?

Cheers!

Maria



Inside mountains waterchannels break and water starts coming out of the mountings this way in Grazalema! Awesome

By Rosi Fernández at Facebook



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Legal tip 438. Time share rights in Spain. Part I
25 January 2011

Time share rights are those which give to the holder the faculties for usufruct and enjoyment, with exclusive character, for an specific period of time within the year, an independent dwelling. It includes the necessary furniture for this use and the complementary services. It is regulated in Spain by a Law dated 1998. 


The Spanish regulation considers time-share as a type of seasonal rental. The holder of time-share rights do not acquire ownership rights but the right to use the property for a specific period of time. The duration of these rights is not indefinite, the developers of these type of complexes needs to specify the period for the enjoyment of these rights which will always need to be between 3-50 years. Ownership remains being the developers´.

Because ownership is of developer´s, this can sell ownership rights always with the limitations derived from the existence of other person´s usufruct and enjoyment rights on the sold piece, which will remain for the contracted period.

To be continued
 
 


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Legal tip 437. Navarra Appeal Court says Banks have no rights...
24 January 2011

Navarra Appeal Court has decided that Banks that keep a house in a foreclosure proceeding, whatever the value of the debt and of the house, the Bank will have no rights to go against other assets of the debtor for any remaining amount. 

Therefore the debt which is guaranteed with a estate is limited to the value of the property itself.  Similar decissions can be found in the Provintial appeal Courts of Baleares and Cadiz.

I agree with some Consumers specialists that this understanding of mortgage debts and forecloseures is not technically correct under pure legal terms,  but this is said when talking of a scenario where prices followed a normal growing evolution.

The current scenario in Spain where value of houses and lending availability was so rapidly and artificially inflated by Financial Institutions, make this decission the most adjusted to Justice as Law needs to be applied taking into consideration the social reality of the time when they are applied.

Adjustment to reality for the protection of the most  damaged parties in this financial and real estate bubble and subsequent burst: persons, consumers

It is good!

This below is an image of the Court decission front page

 

 Toro de cuerda in Grazalema by Paco Ramírez at Facebook



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Legal tip 436. Another good pieces of Case Law by the provintial Appeal Court of Murcia.
24 January 2011

On the 6th of July of 2010.-  Change of the contract object. 180 º change in the apartment orientation is considered by the Appeal Court as an "essential" breach of the purchase contract by the developer. The Court Decission refers to Supreme Court previous Case Law by which it is clear that in "obligaciones de dar" (obligations involving the handing of a certain object) , the seller cannot impose the buyer to receive anything different. The buyer has a right to receive an iddentical object. Similar objects cannot be imposed to be received by the buyer as this would involve a clear legal insecurity to the buyer.

On the  28th of October of 2010.- Law 57/68 is special and imperative ( non waivable) so it is always applicable regardless private agreements and regulations of private order.

 Grazalema Two Towers by Paco Ramirez at Facebook



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Legal tip 435. Foreign self-employment rates growing in Spain
24 January 2011

In preparation for what  it will be the future proffessional scenario in Spain for the decades to come, foreign self-employment grew a 5,1% in Cataluña and 10% in Navarra in 2010.

Spain just needs to keep its personality, which makes us attractive abroad. Foreigns will come to work with us and make it highly profitable. Unfortunately the best spanish brains escaped to multinationals during the last 20-30 years.

Now, it is time for them to  return or stay and co-work presentially or in the distance with the lovers of our country, for the best of our economy and our people. It will be this way.... I do not have the slightest doubt.

So... british, german, danish, norweigan, swedish... come and stay: this is our Europe, your Europe.

Let´s face the week! Monday is always a difficult day :)

Maria

Ps.- If you want to remind the differences between SL and Self-employed, you can click on here

Romero in Grazalema by Paco Ramirez Menacho at Facebook



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Management tip 37. A Manifesto for better management
22 January 2011

Published at the IESE website

 

A Manifesto for Better Management

Andreu Civit, RafaelRosanas Martí, Josep Maria

 

Publisher: IESE

Original document: Manifiesto para un management mejor. Una visión racional y humanista

Year: 2010

Language: Spanish

 

 
When seeking an explanation for the current crisis, many point the finger at excessively low interest rates, the real-estate bubble or job losses. Fewer mention the poor management by those leading many of the affected institutions, despite this being a crucial factor.

In this paper for the Crèdit Andorrà Chair of Markets, Organizations and Humanism, IESE professors Rafael Andreu and Josep M. Rosanas present their manifesto for better management.

The Task of Leading
Management is about leading. This includes all of the activities that define an organization’s objectives and the actions necessary for achieving them. It also requires assigning tasks for setting it all in motion and creating a positive, effective work environment. Executives are the ones responsible for this.

Management is important because it generates economic value, not only for organizations, but for society in general. Companies produce goods and services to satisfy needs. Doing so efficiently, by taking full advantage of the technology available, depends largely on the quality of management.

In addition, management must tend to the general well-being of people at work, since that is where they spend much of their lives. A decent job that gives people a sense of dignity and self-worth is the goal. But certain actions, such as temporary contracts, fall short of this ambition. 

Moreover, companies often promote imperfect social models. By putting in more time at work, for example, people come to think of that as “normal” behavior, and subsequently adopt values – like measuring success by how much money they earn – without question. 

Management Evils
One of the most negative management trends to have taken hold, say the authors, is “economism,” which places prime or exclusive importance on short-term economic variables. 

Jobs are reduced to wages and incentives, neglecting aspects such as training, learning or development. Employees’ deeper motivations are not taken into account; rather, self-interest becomes the lone driver, resulting in personal incentive systems at odds with corporate interests. 

The most harmful management trend has been treating people as mere instruments whose sole purpose is to create value for shareholders. The consequences are twofold: employees follow orders without considering their merit, and leaders follow the crowd, enslaved, like everyone else, to the vagaries of the stock market.

A Renewed Concept
The way the authors see it, the business world needs managers who value stakeholder commitments, and whose sense of purpose goes beyond the immediate goal of producing solid financial results, as necessary as that may be. For this to happen, management theory needs to be reoriented. 

First, management needs a purpose based on an overarching set of rules that indicate which direction should be taken and why.

Next, it must be founded on a holistic understanding of people whose actions have consequences on and connections with their fellow human beings. Such an understanding transcends mere self-interest. It also offers people opportunities to learn and grow.

Finally, management theory should be built on a rational concept of the organization. Each organization has a specific purpose and requires special resources to achieve that purpose. It is important to recognize that every organizational participant may have parallel objectives, complex problems and major uncertainties to contend with. A rational organizational concept will motivate people, not only extrinsically, with compensation, but also intrinsically, through their personal interests, as well as transcendentally, by helping to satisfy other people’s needs. 

"Golf Club La Alcaidesa", by Luis López-Cortijo



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Management tip 36. The Ethical Social Network
22 January 2011

From the IESE website

 

 

The Ethical Social Network

Melé Carné, Domènec

 

Publisher: Springer

Original document: The practice of networking: An ethical approach

Year: 2010

Language: English

 

 
Who hasn’t made contacts to further a career or given out business cards at parties? Is there an ethical dimension to such behavior?

In “The Practice of Networking: An Ethical Approach,” published in the Journal of Business Ethics, IESE Prof. Domènec Melé argues that business networking can be virtuous – under certain conditions. 

Melé kicks off his discussion by reviewing existing networking theories. “Networking” refers to social structures made up of “nodes,” or actors, which can be individuals or organizations, and “dyads,” which are the links between them. 

Networks are essential for business, because the coordination of social and economic life doesn’t just happen through markets and hierarchies, but through relationships as well. These relationships are shaped by attributes, including the relative status of the actors and the strength of the tie. Actors can use these attributes responsibly, or they can take advantage of them, such as when actors of higher status abuse their position and power.

The Right Way to Work It
How actors use relationships depends a great deal on the type of networking they employ. 

Aristotle defined three ways of treating relationships: for utility, for pleasure and for genuine friendship. Melé elaborates on this idea to come up with three types of business networking motives: utilitarian, to obtain advantages, such as money or power; emotional, to get pleasure out of interactions; and virtuous, to serve the needs of others for a noble cause.

While the latter type of networking is the most ethically acceptable one, the moral motive can be compatible with the other types, provided that actors with utilitarian or emotional intentions give as much as, or even more than, they get in return. 

Since judging what makes networking “virtuous” doesn’t fall into neat categories, Melé details some essential elements.

Act in good faith. Intentions must be sincere. It’s fine if actors are joining a network merely for business advantage, provided that they deal fairly with everyone. Also, the network must have honest goals and ethically sound activities.

Share and share alike. Actors must share information, knowledge or resources, while also benefiting from those contributed by others. 

Use power for good. Some actors will always be more powerful than others, but they should only exercise this to benefit the network.

Crossing the Line

Melé also describes some typical misconduct, including:

Acting in bad faith. Sometimes people join a network solely with the intention of taking advantage of or deceiving others. Such motives are the slippery slope leading to an abuse of trust on the scale of Bernie Madoff, who was sentenced to 150 years in prison for his giant Ponzi scheme. 

Misuse and abuse of power. The more powerful actors in a network can choose to use their stronger positions in ways that harm others. Facebook, for example, caught flak over its controversial Beacon ad system, which tracks and reports on users’ online activities, even when they’re logged off the system, enabling product purchases, signing up for services, and items included on wish lists on other sites to be fed back to Facebook servers.

Cronyism. Melé uses the example of the U.S. presidential administration of Harry S. Truman to show how one actor can abuse power by showing favoritism to some at the expense of others who are outside the network.

A virtuous approach to networking is essential for building trust – a cornerstone of any harmonious business relationship, says Melé. 

Trust helps actors to acquire knowledge, information and skills from others. This proves that an actor is reliable and builds a good reputation, which, in turn, results in sustainable business relationships that stand the test of time. Taking an ethical approach to networking, therefore, truly pays off.
 
 
"Golf Club La Alcaidesa", by Luis López-Cortijo

 



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Legal tip 434. Bilingual public schools in Spain
21 January 2011

Region Nursery and Primary Secondary school TOTAL
Andalucía
190
199
389
Madrid
147
 
147
Cantabria
10
23
33
Extremadura
7
18
25
Castilla y León
118
18
136
Castilla la Mancha
26
26
52
Aragón
12
23
35
Canarias
33
28
62
Murcia
2
34
36
Asturias
19
40
59
Total Comunidades
564
409
974

You can see names of the centers by clicking on Regions´ names above.

Data of Trilingual schools are not included  (Baleares, Cataluña, Comunidad Valenciana, Galicia y País Vasco), neither of  La Rioja y Navarra  as there are no official data.

Data obtained from the e-newsletter of  Eroski Consumer

Grazalema by Ana María Ramírez Fernández at Facebook

 



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Legal tip 433. NEW! Good again for Murcia Appeals Court on contract diligence.
20 January 2011

Good again, good.

On the 13rd of May of 2010, the provintial appeal Court in Murcia passed another great decission: linking to every Court in the Murcia jurisdiction by which an off-plan contract is cancelled and a developer is obligued to repay the buyer all paid amounts plus legal interests plus compensation of damages.

The Tribunal considers that the fact that the developer sold off-plan properties prior to the approval of the Planning regulations  is a lack of diligence which allows the contract to be cancelled, amounts and interests refunded and damages compensated.

Awesome how Murcia is gaining balance and turning pro-consumers!

Congatulations to the winner of the case, his lawyer and Murcia appeal Court.

Best,

Maria

Calle San José, Grazalema, Cádiz by Ana Mari Ramírez Fernández at Facebook.com



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Legal tip 432. New service for Justice Administration starting today
19 January 2011

New service starting tomorow for the online obtention within three days of:

- Criminal records

- Last will acts ( National record of wills)

- Insurance Policies with death coberture.

Nice!

Maria

Grazalema by Rosi Fernández at Facebook



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Legal tip 431. Wills and Inheritance in Spain: Executor and partitioner
19 January 2011


 

The Executor is the person designated by the testator to ensure compliance with the wishes expressed in the will.

 

 

The powers of the executor are those expressed by the testator in the will and if not expressed, they will be as follows:

 

 

To Arrange and pay for expenses related to the funeral of the testator.
To pay the pecuniary legacies.
To ensure compliance with the rest of testamentary dispositions and defend the validity of the will.
To take measures and precautions necessary for the conservation of heritage.
The testator can name one or several executors and in case of several they can be empowered to act just jointly or jointly and severally.


 

 

The Partitioner is a different figure.  It s the person named by the testator in the will to carry out the distribution of the estate among the heirs.

Although these two are different figures, it is quite common for the testator to name same person for the exercise of  both charges: executor and partitioner. In this case, the appointed person needs to enforce the will and carry on the division of the inheritance.

Balcony in Grazalema by Francisco Dianez Guerrero at Facebook

 



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Legal tip 430. Wills and Inheritance in Spain:Smoothie International probate
18 January 2011

 

As a foreign national having assets in Spain, you can find yourself in a broad variety of situations depending on what type of assets do you have in your country and in Spain.

The most advisable thing in practical terms is to have a Spanish Lawyer with good acquaintance of the foreign  system or viceversa.

This way any of the two will keep both your wills and will be in charge of having the two of them in harmony and updated. This will result in a quick and easy probate procedure at your death.

You can also name in your will in Spain an albacea or contador-partidor ( executor or partitioner), to help with the execution and partition of your will.

We will explain the functions of both executor and partitioner in Spain tomorrow.

Best regards for this commun winter Tuesday,

Maria

Grazalema, Cádiz, Spain by Rocio Santiago Piedra at Facebook

 

 



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legal tip 429. Proposals for the President of Lawyers in Spain
17 January 2011

Carlos Carnicer has been reelected as President of the General Council of Lawyers

Carnicer is thankful to electors and reiterated his commitment for dedication to ongoing Laws which will be affecting the profession in a very deep way.  He is endeavoring to appoint new members for the Council within one month in order to develop and intensive and careful work on, among other ones:


-    Access to Lawyer profession
-    General regulations for Lawyers
-    Professional services law

Carnices stated that the Council needs to be of everyone´s taste and therefore he will be incorporating some proposals which were at his opponent´s campaign.  

Carnicer  also pointed out that Lawyers need to make good efforst to the service of citizenship as they have same interests. Carnicer says “ If we are not useful to citizens, we are not useful at all”.


Grazalema callejón del cura by Rocio Santiago at facebook



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Legal tip 428. Property Re-sales: the importance of the private contract
17 January 2011

An old article relaunched today. Have a great week!

These are some important aspects of the private sales contract:

1) If you don’t master Spanish sufficiently, ask the owner to provide translation of the contract or look for a translator yourself and pay these services 50-50.

2) Date and place of contract.

3) Check who is signing on behalf of the selling party: (The most practical and useful thing is to ask the Land Registry for an updated “Nota Simple” of the property to check the current owners and any speciality involved in the ownership. There is an English version of this service at: www.registradores.org).

  • If the transaction is between two individual parties, the document must be signed by all the owners, themselves or through sufficient proxies.
  • If a house is part of the marital community, the document must be signed by both husband and wife; they both will have to sign too if even not being part of the marital community (being an exclusive good of one of them). So, important to have an specific mention about the civil status of buyer in the headings of the contract.
  • If the seller gives power of attorney to another person to sign the private contract, the authorised person will have to present the authorised notary copy, it means, the original document signed by the Notary, not just a photocopy, the power of attorney must grant enough power for the sale, so it is very important to check, by reading the power of attorney deed, that the authorised person can sign the sale (these mentions are among the faculties stated in the deed).
  • If the seller are the heirs of the owner, it is important to make sure that they have got all the Inheritance documents in order and they are the only heirs who hold rights on the property.

4) If the hosue was rebuilt or renewed make sure this was done with the required Work License from the Town Hall and that the “ Declaracion de Obra Nueva” has been made before a Notary and duly registered in the Land Registry. Again, ask for a Nota Simple to do so. Catastro´s descriptive and graphic note is also needed here to see how the Land Registry description of the house is equivalent to Catastro´s and to reality.

5) If you are buying a country house, check on water, phone and electricity providers. If a well is part of the contract, be sure that it has been legalised. If there is a river passing by, be sure that you have irrigation rights properly registered in the proper Confederacion hidrografica.

6) Charges on the house:  It is very important to verify which charges exist on the house, and check out if it is free of charges, loans and encumbrances.  In order to check that out, again, the most useful instrument is a Nota Simple. The mortgage can be fully paid before the transaction and be cancelled by the owner or  the buyer will have to subrogate that mortgage, which means that he will have to accept it and become the debtor of the remaining debt against the Bank which has granted the mortgage.  It is necessary then to know on interests’ rates, recovery time, and commissions and of course the amount still owed. It will be convenient to ask in the bank about remaining amounts to be paid back as the Nota simple doesn’t reflect all these details.

7)  Community of owners´ shares. If it is a resale house, you need to have information on the situation of the house regarding payments to the Community of Owners. Ask it to the Property Manager/ Administrator or the President of the Community, get copies of the Statutes  and  internal rules of the building too.

8) Price, deposit and payment method:  The contract will specify the price of the house and the payment method. There is no VAT to be paid on resales. You will have to pay the Transfer Tax which is of 7% of the property price.

9)  There are certain kinds of houses which have official value, the Treasurey Department of the Autonomous Community has this information, check the Nota Simple to see that your house is not VPO.

10) Public deed signing date: Very important to have a determined and clear date for signing the Public deed before a Notary,  and if extensions are agreed to clearly establish the terms of these extensions which need to be always communicated,  justified and agreed between the parties.

11)  Related expenses:  Need to be mentioned  and how-who will pay them:  

  • Plusvalía (a tax over the value rise of the property from one to the next transmisión)
  • Notary Deed.
  • Registration in Land Registry.
  • Transfer taxes

If nothing is specifically mentioned or if it is agreed that expenses will be paid “according to Law” , the seller will pay Plusvalía, and most of the Notary Deed and the buyer will pay the copies of the Notary deeds, the registration of the Property in the Land Registry and the transfer tax. 

12)  Choosing a Notary: The buyer has a right to free election of Notary.

13)  The private contrat is sufficient to link the two parties  to what is agreed in the contract clauses but it is not sufficient in order to register the property in the Land Registry or to ask for a mortgage. You need a  Notary public deed for these two.

14)  Cancellation clauses and penalties for delay (equilibrium) http://www.costaluzlawyers.es/eng/?p=25. The contract needs to mention equivalent penalty clauses for delays (to both parties) which need to be agreed by the contracting parties and not imposed by any of them. It also needs to put the parties in balanced conditions in the event of cancellation of the contract and establish equivalent compensation for these cases of cancellation.

15) Agreement on juristiction  or  submission to arbitration. 

Written by: Maria de Castro

About the author:

Maria de Castro is a Spanish Lawyer and the Director of the Law Firm 

www.costaluzlawyers.es.

Costa Luz Lawyers are contract and consumer real estate law specialists covering all parts of Spain. You can contact Maria at mldecastro@costaluzlawyers.es 

 

 

Grazalema by Rocio Santiago piedra at facebook

 



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Legal tip 427. Where are Consumers representatives?
13 January 2011

Spain´s Housing Secretary is meeting with developers and Banks in an effort to bring energy to the sector.The immediate objective of these meetings is to create a commission for permanent work.

First meeting to be held on 18th of January with Financial Entities, owners of estate and debt. This aims to reach agreements with Financial Entities in order to avoid more developers to enter into receivership. 

On the 19th, the dialogue will be with main developers of the country and the G-14 group which gathers the most important companies of the sector.  Goal is to ease the access to finances.

These meetings come together with the tour visit to foreign countries which are potential buyers of Spanish estate.

All the agreements coming out of these meetings will be brought to the commission for permanent work which will start its work on next February the 2nd. This commission will concentrate on measures to speed up the real estate cycle. It is expected first effective measure to come out of this first day of work on the 2nd of February. 

Financial Institutions and Estate Companies will propose changes to the Land Act passed in 2007. This Act still has not been developed through proper regulations. The most critic part of this Act allows Local Councils to expropriate Urban Land at Rural Land price if the development has not been timely done. This has provoked an important fall on value of assets of companies.

I am wondering, specially when meeting with Financial Institutions:

Where are people here? Where are the representatives of Consumers associations?

Where is the voice of the main sufferers out of this mess?

-Those who bought through easy-to-get mortgages at prices inflated by the financial institutions and who are seeing their lives destroyed by this excess of financiation.

-Those who were not duly protected by financial institutions with the legally required Guarantees.

-Those whose guarantees are not being honored or at least are being driven through costful and stressful judicial ordeals.

Again: people oriented, person-alist philosophers, quickly, to be hired by our governemnts!

Pampaneira by Dlakme at Flickr.com



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Legal tip 426. Are Lawyers liable?
11 January 2011

An answer to a member of the forum who asked today if Lawyers can made accountable if the wording of off plan contracts does not meet the legal requirements for protection of buyers.

Our answer:
 
Yes, if you hired a lawyer to represent you for conveyancing, your representation had to be covered by Contract Law principles, Law 57/68, Consumers regulations, advised text for off plan purchases of the Consumers National Institute... That is why you hired your legal representative.

According to provision 2 of Law 57/68 ( you can see full text in English by clicking on here)  both name of Bank or saving Bank receiving the advanced amounts by buyers in off plan purchases and account number need to be contained in the contract.
 
The expression of these data on the sales contract is actually part of the guarantees that Law 57/68 brings. It is part of the tuition that the necessary existence of a Bank/Saving Bank among the operators of these businesses was supposed to bring to this market.

In my opinion, the full meaning of the presence of Banks here has been very poorly understood, or better said, well understood by just few. It maybe is because the legal role assigned to Banks by the legislator in Law 57/68 is not comfortable to a ultragreedy market or because what the social role of a  Bank was in 1968 is very different  to what  it ended up being in the late 90`s and the 00´s

Nothing extraordinary: a revision on the nature of money, financial institutions and persons within the understanding of economy and society is needed. This unfocused events just happen once in a while :) Again: personalist philosophers come! Quickly!

Best to you all and........ please ;) rise your hopes!

Maria 

"Golf Club La Alcaidesa", by Luis López-Cortijo



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Legal tip 425. On how united they are when forgetting about consumers
10 January 2011

Ibex Banks and Saving Banks have around 60.000 houses on sale, according to Expansión.
 
Some of the offered units by Banks are actually developers´properties. Banks are interested on these sales so developers can pay up their debts with them. As interested as if the units were their own....which actually are.
 
No surprise if Banks are making offices, websites and financiation ( sometimes of the100% ) available to developers so they can sell their stock. A clear sign of how them two were together in the market: these products are actually commun products of the two. In a too high grade and number, the two made their businesses without the necessary respect towards buyers´ interests, money and savings: an insane market driven by compullsive financers.
 
According to Consultors  Acuña y Asociados there is still a 20% price fall to come in 2011.  More than this is needed if they want to sell. The price reduction process is quite simple, much more simple than what banks and developers portray: they just need to forget about the old standards of ego-gains they have been miss-enjoying  to the cost of ordinary people´s savings and dreams. They need to turn to PEOPLE. That simple.
 
Good personalist philosophers for Banks please... urgently! One per branch.
 
In the legal aspect: no wonder, consumers need to be strong and active in these scenario, both as prospective buyers and also as owners of  buying rights on these units.
 
As owners of buying rights on these units, if you have a contract which has not been cancelled, I would advise you to make clear what your position is, with the help of a lawyer, in order to prevent your money is just swallowed by them and the house of your contract is sold to someone else without due respect to your existing rights.

As a possible buyer, do not rush in to purchase attracted by the incredibly low price and have your lawyer checking on the legals and a surveyor taking a look on the building conditions. 

Balcon in Guadix, Granada. By Manuel M. Ramos at Flickr.com



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Legal tip 424. The president of lawyers for collaboration to improve Justice
05 January 2011

Quite "ad hoc", specially becuase of the discussions in our forums of recent days regarding how lawyers can contribute to improve the status of the Justice administration in Spain, I received yesterday the newsletter of the General Council of Lawyers and read with special interest an article by his current president Carlos Carnicer .

There are ellections for the renewal of the presidency next Friday, the 14th of January, so it must be a good time for the initiative that you are aksing us to promote to start working.

The article is on a lecture that Mr. Carnicer delivered in Club Siglo XXI and he says, among other statements:

-After 32 years of Constitution in Spain, the desires of citizenship for a serene, balanced, pro-guaranatee and efficient judicial system for the achievement of Justice, fully committed with the defense of fundamental rights and public liberties, which can generate trust among citizenships has not been completely met.

- The Administration of Justice has the lower level of steem among administrations by citizens

- The Administration of Justice is not producing adequate responses to the attempts for modernization that are being promoted. Justice is still slow, which means it is bad or unefficient.

- Politicians have generally shown low interest for the improvement of this Administration, probably because it does not make them gain votes.

- There is a clear lack of coordination among the Ministry of Justice, the General Council of Judicial Power and eleven regions ( Comunidades Autónomas) with transfered competencies.

- The best budgets for the Justice Administration are  the current ones, in this crisis times.

The most interesting statement in my opinion is that of the overcoming of the crisis of the Judicial administration to need not just an adequate budget but also agility for the legislative initiative and developments and the collaboration of Public Administrations, proffessionals and users of the services of Justice, being General Councils among these.

It is serious we are starting to work on gathering lawyers for a call to the General Council of Lawyers so we can influence them for them to influence changes on the effectiveness of the judicial system. We are creating a small website with Forums, an open and simple one just for open proposals and availability by Lawyers in Spain.

Does it sound good?

Tonight is Three Kings night in Spain, oh yeah!

Maria

Valencia Balcony by Brett Bullborg at Flickr.com

 



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Legal tip 423. Effectiveness for european debts at last
04 January 2011

The European Commission intends for a foreign judicial decision to be enforced to be as easy as at home. This is the aim of the continental order for freezing and seizure of bank accounts to ensure the recovery of debts between companies and consumers. This order will be useful to combat delinquency, and will simplify, accelerate and ensure the recovery of debts between companies and consumers in different states of the European bloc.

The proposal, which is expected to be effective by June 2011 have the support of the European Parliament since 23 November 2010.

Currently, just  37% of transborder debts are recovered. The system is studied to be consistent with the national systems of enforcement.  This order tries to bring easiness to citizens and SMEs as these economic actors are the most vulnerable to defaults due to financial constraints and lack of means to enforce rights before the law. As a result, ordinary consumers and SMEs are very reluctant to engage in transactions with customers, partners or suppliers in other EU countries, which prevents them from exploiting the enormous potential market that Europe has.

The procedure will be applicable to any claim for payment under a commercial transaction and will be mainly governed by the principle of effectiveness. So to keep the surprise effect, the order should be implemented without prior notification to the debtor and be delivered to the bank as quickly as possible.

The rights of the debtor will be safeguarded by ensuring the right of a fair procedure and allegations.In order to prevent abuses, the court deciding on the case could force the creditor to offer guarantees that will serve to cover his liability and compensation to the debtor if the order is eventually not justified and cause damage.

Gaudi Balcony by Gorgeoux at Flickr.com



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Legal tip 422. Completed but still not happy
03 January 2011

If you completed on your property, not being fully happy with the final product compared to what was offered in publicity, you still have fifteen years to ask for due compensation.

Potes, Cantabria, Spain



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Legal tip 421. On the value of Case Law in Spain
03 January 2011

In relation to post 420 ( The Cantabria Court decission) and answering to Ads and Keith in the Forums: 

 There is no need of unsolvency for the action against the Bank to be used. Just the delay, proof of money being paid into a Bank account and the lack of Bank Guarantee is needed.

 

 As an addition, I would like to point out that even this Court decission is the most courageous of all, the essential statements on Bank liabilities were already made by the Navarre Court back in 2008 so....Case Law is not beginning but increasing. That Court in Navarre, in a Decission with same value as Supreme Court ones, established that it is the Bank that receives deposits that is obligued to request the developer, under the Bank´s liability, to obtain the Guarantees for the buyers/depositers.

 

 This was also included in a couple of more Court decissions after the Navarre one and before the Cantabria one.

 

 It is also very important to note the big difference on the importance of Case Law between your system ( Commun Law or Case Law based) and our system ( Civil Law or Code based), where Court Decsissions are not even a source of Law but, according to provision 1.6 of our Civil code , «complementará el ordenamiento jurídico con la doctrina que, de modo reiterado, establezca el Tribunal Supremo al interpretar y aplicar la ley, la costumbre y los principios generales del derecho», complement of the Legal order made out of the reiterated doctrine of the Supreme Court when interpreting and applying Law, uses and General Principles of Law. 

 In our case, the rights for buyers and obligations by Banks are clear since 1968 when this " Public Order protection" Law was passed and which has been expressly made enforceable in 1999 by the Building Act. 

 

 

 The above couple of paragraphs are to say that the fight does not need express Court decissions in place if it is correctly and well foundamented in Law and General Principles of Law. If some lawyers have attacked us because of lack fo express case Law I need to say that those statements have not same relevance in our legal order as they have in the Commun Law one. If they are Spanish lawyers, they should well know!  Of course, it is very important, for easying a decission by the Judge, to furnish your lawsuits with relevant precedents and Jurisprudencia, but, in pure terms and legal technique, they are not necessary for a case to be brought to Courts and be won.  

 Yes, Keith, the tide is changing ang again I want to express my most sincere acknowledgement and respect to your sense of Justice and your fight for the rights of all in your group and anyone without Bank Guarantee. This, your energy, together with the clear sense of a wrongly oriented financial world were the main engines of my passion for this topic. Thanks again as always.

 Let´s keep fighting an working as there is much to do and say! 2011 is going to be VERY interesting!

 Best regards,

Maria

 

 

Blue Balcony in Lanzarote ( Spain), by Palestrina55 at Flickr.com



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