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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 646. Brussels reprimand Spain on VAT reduction
30 November 2011

Redution of VAT to 4% in force till december the 31st is against European Directive on VAT which established the reduced rate ( 5%) just for social housing. 

Tax Inspector´s association spokeman Francisco de la Torre thinks the current reduction will be banned and therefore taxes incentives for property sales will have to be worked within the ambits of Transfer Tax and Income Tax.

Zahara de la Sierra

"Zahara de la Sierra", Cadiz, Spain, by el holgazan, at flickr.com



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Legal tip 645. Husband died and no will nowhere
30 November 2011

An answer to someone asking about procedure for property transfer in Spain. Her husband died in Spain , where he had his only real estate asset, he left no will neither in Spain or UK.

Spanish rules for the abintestato procedure and for legal heirs apply. 


Dear xxxxx:

 

A declaration of heirs in Spain will be enough to obtain the title for the property to be transfered to Mr. xxxxxxx´s legal heirs.

 

 

Documents that we will need will be:

 

 

- Death certificate ( I asssume this is in Spanish as he died here)
- Certificate from Spanish last wills registry on the non existence of will in Spain.
- Birth certificate of sons
- Deatth certificate of sons if anyone has died
- Marriage certificate
- Local Council registration of dwelling of residency card to prove last residency of the deceased.

 

English documents need to be translated into Spanish with the Hague apostille. A couple of witnesses who knew personal and family cirumnstances of the deceased are also necessary to be present.

Once the Notary issues the ab intestato deed, 20 days need to pass before starting the final procedure of division and adjudiciation of the inheritance.

If there are discrepancies ampong legal heirs, a judicial procedure will be necessary.

 

Taxes to be paid depends on tax value of the property.

 

 

Please let us know if you have further questions,

 

 

Kindest regards,

 

Maria

Zahara de la Sierra

"Zahara de la Sierra", Cadiz, Spain, by oscardodo, at flickr.com



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Legal tip 644. Buying property through company: same tax
30 November 2011

Recent couple of Court decissions ( setting Case Law) by the Supreme Court stablish that when a company buy shares which are in a more than 50 per cent, real estate assets, tax will always be of 8% of value of acquisition against 1% of any company operation according to Trasnfer Tax and Stamp Duty Act.

The treasure can apply this new rate despite no fraud intention is proved.

Zahara de la Sierra

"Zahara de la Sierra", Cadiz, Spain, by oscardodo, at flickr.com



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Legal tip 643. New decree on property valuation
30 November 2011

 On November 10 came into force Royal Decree 1492/2011 for real estate valuations.

This text contains the methods and assessment techniques to apply when such assessments are intended for re-division procedures, expropriation, and liability of the government.

The spirit that inspires the legal text is to develop the concept of land valuation eliminating all types of “urban expectations” apart of those directly linked to the effort of the investing party.

One of the new aspects of the Regulation is the attempt to define the urbanized land, as the wording contained in the revised Act of Land Law has led to numerous problems of interpretation.

It is urbanized land, that one which is integrated in the effective network of services of endowments of the population center. This occurs when endowments and services of the land

1)    * Already exist

2)    *Could exist with no other works that the connection to the facilities already in operation, or

3)    *The land is included in a field that provides an action plan for internal reform and urban renewal.

As regards to valuation of properties criteria, these are linked to market information but also to the performance of  urban burdens and duties , detailing the criteria for different situations that may occur, distinguishing between urban land that is not built, built, in the process of building and ground operations subject to internal reform and renewal of the development or staffing actions.

Rural lands are valuated in accordance to its status and activity-or potential : attributable exploitation of land in accordance with the most likely uses and activities in regards to  applicable regulations, of exploitation, regardless of any urban expectations, although considering the different activities that could be developed, agricultural, forestry, mining, etc . . . .-

 The decree also contains a tool for "economic sustainability” of urban developments : a report on economic sustainability which will weigh the economic impact of the action in  Local Treasuries in order to quantify the costs affected by the implementation and maintenance of necessary infrastructure, or the implementation and delivery of public services needed to meet  the expected urban growth.

DSC00017

"DSC00017", Alcalá de los Gazules, Cádiz, Spain, by richy_trip, at flickr.com



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Legal tip 642. Brave Valladolid Judge on contract balance!
30 November 2011

In line with modernity and Consumers protection, this Case Law produced by the Provintial Appeal Court who speaks the best Spanish ( Valladolid is known as being the part of the model Spanish language speaking :)).

Dated the 28th of October 2011:

Relevant points:

1) Delay when selling properties off plan gives always cancellation rights to buyer. There is no need for the Judge to valuate the delay as important or not and every delay is cancellatory in these cases

2) Cancellation is also possible despite the existence of First Occupation License if the property is not delivered to owner for other reasons ( lack of horizontal division...)

3) Cancellation just requires a "fall of the business interest for the buyer" against old doctrines which required a persistent will or obstacle to contract fulfilment.  This is the line followed by the Supreme Court.

4) Lack of Bank Guarantee can never damage the buyer regarding his rights for effective refund

Such a brilliant understanding and exposition of Law 57/68. Good!

Maria

Acala de los Gazules

"Alcalá de los Gazules", Cádiz, Spain, by Alcalaina, at flickr.com



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Legal tip 641. Cultural tourism and apartment rentals
24 November 2011

 A fantastic website by Ministry of Culture ( click here), and a suggestion for apartments owners in Spain:

Advertise with culture. Link your apartment to these many treasures around it.

By the way, these are the rules for the renting of your apartments in different regions of Spain ( information post by clicking on each region):

Asturias, Murcia, Basque region,Balearics,Galicia,Andalucía,Valencia

Please let me know if there is any region missing.... ups.... Canarias?

Maria

Alcala de los Gazules 2

"Alcalá de los Gazules 2", Cádiz, Spain, by Alcalaina, at flickr.com



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Legal tip 640. Home employee´s legal status in Spain as of January 1st 2012
23 November 2011

 NEW HOME EMPLOYEES´ LEGAL STATUS AS OF JANUARY 1, 2012.

With effect from January 1st, 2012 household employees will have to be registered in the General Regime of Social Security. Those who were listed on the previous regime, ( special regime of home employees) have a period of six months to switch to the General one.

Social Security contributions

Social Security contributions will be of  22% of the salary by the employer and 3.70% by the employee.

Obligations of the employer ( among other ones)

1)                 Registration in the Social Security system.

2)                  Formal contract.

3)                  To pay the corresponding rates for  work accidents.

If you need further information/advise on this, you can contact us at: j.castro@costaluzlawyers.es

Sierra de Grazalema

"Sierra de Grazalema", Grazalema, Cadiz, Spain, by Senderismo Sermar, at flickr.com



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Legal tip 639. A Judge against demolitions
22 November 2011

  This interesting topic was addressed in a table of the Congress of Notaries held in Benidorm last week. Edilberto Narbon Lainez, Judge of the Supreme Court of Valencia, is headed forcefully against the doctrine of the Supreme Court (TS), in which the existence of third party purchasers in good faith is not a determining factor to prevent the demolition of homes.


"The majority of TS case Law on Urban planning violates property rights contained in Article 33 of the Constitution, interpreted according to the European Court of Human Rights (ECHR)”

Generally, the demolition order is the end result of a judicial process that the owner is not made aware of until the enforcement stage, without being able to defend their property rights in a declarative process or in an executive one.


The judge understands that with his attitude, "the TS calls into question the safety of the public faith system, as the owner not only obtained a license from the Local Administration without  being stated that  its legality is in question but also purchased the property relying on the Land Registry information,  where  there was no warning notes about this”


Narbon presents solutions: the bona fide third parties should be able to invoke in their favor the principle of legitimate expectation based on the value of the license by the administration and the so important principle of public faith of the Land Registry

Legal certainty and Land Registry’s public faith would play in the contentious- administrative preceding the role of being a cause to impede the execution of the Court decision. This solution fit for those who have obtained a ruling in their favor declaring the illegality of the license as enforcement by substitution is allowed, exceptionally, by the Constitutional Court and the European Court of Human Rights

Sierra de Grazalema

"Sierra de Grazalema", Grazalema, Cadiz, Spain, by Senderismo Sermar, at flickr.com



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Legal tip 638. Important checks when buying an old house
22 November 2011

Toegether with technical checks on structure and price, three main set of legal checks are essential:

-       -  Check on ownership, easements, charges, encumbrances in the Land Registry

-       - Check on surface ( squared meters) in the Catastro to verify capacity is coincident with that of the Land Registry.This Catastro information on surface is generally more updated than the Land Registry one. If both information are not identical you can request the Land Registry to rectify information. There are several different ways, legally, to do so.

-       - Check on licenses for interior an façade reformations and possible historical reservations on the Planning and Culture department of the Local Council

      

       Una calle en cuesta, en Grazalema

       "Una calle en cuesta, en Grazalema", Cádiz, Spain, by elarequi61, at flickr.com

 



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Legal tip 637. More protection for European Consumers Online
16 November 2011

More than one hundred fifty million European Union citizens making purchases over the Internet.

Thirty million of them are cross border.

It seems it is a market that generated 25,000 million euros a year. 


Europe ha recently issued a directive which will come into force by the end of the current year and that Member States will have to implement at their legal orders within two years. 

More important aspects:

1. Right of withdrawal up to 14 days.

The main novelty of this Directive is the introduction of a period of 14 days to return any product purchased at a distance. The 14 days begin when the consumer receives the goods. The consumer may return the product without having to state the reasons for its decision and without being penalized. The Directive also includes a further guarantee: in cases where the seller does not inform the customer about this right of withdrawal, the period is extended to a year.

2. Right to reimbursement

The merchant must return money to consumers of the product within 14 days of withdrawal, including delivery charges. To further facilitate this withdrawal, the Directive includes a model form that the consumer may use (but shall not be obliged to).  

3. Increased clarity on prices

From now on, sellers must inform clearly the total cost of the product so that the buyer will not pay those expenses which have not been reported. In addition, the commission which is applied by using a particular payment method, for example, by the use of cards, cannot exceed the cost that the seller have for using this.

4. Prohibition of "boxes marked"

When shopping online, some services are often added through a series of boxes which are usually marked in advance. From now on these boxes are prohibited trying to avoid the consumer is something that has not contracted.

Grazalema

"Grazalema", Cádiz, Spain, by elholgazan, at flickr.com



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Legal tip 636. Great for Burgos and Valencia on the defence of buyers against Banks in off plan purchases
13 November 2011

 Together with last one by Murcia, new ones coming out by Burgos and Valencia deffending the obligation of Banks to refund, in cases where individual certificates of Bank Guarantees were not handed to buyers.

In essence the protective character of this wise Law dated 1968 plays the big role in favour of buyers who advanced good amounts of money for something that initially is just an architect plan.

Law 57/68 made Banks guardians of buyers amounts, in what it is a  very correct approach with a great sense of balance of markets and limits to the strong parties.

We keep going ahead!

"Grazalema", Cádiz, Spain, by Werkmens, at flickr.com

 



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Legal tip 635. Free guide on pool safety in Spain
12 November 2011

 Again, free stuff for sharing:

http://issuu.com/mariadecastro/docs/pool_safety_spain

Que tengais buen finde!

María

Zahara de la Sierra

 "Zahara de la Sierra", Cádiz, Spain, by elholgazan, at flickr.com



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Legal tip 634. Tips on repossession
08 November 2011

Email from a client and answer by us today: 

 

Hi María,

 
Hope you are well.
 
Was wondering if you could tell me - what is involved when Spanish bank start legal prosecution re seizing apartment?  What happens?
 
Thanks,
xxxxxx 

 

 

 

 

Dear xxxxx:

They send to you a notice after three monthly defaults after which, litigation starts.

The procedure in Courts needs to be duly notified to you at the address you agreed as relevant for notifications on the mortgage deed.

This notification enables you to deffend your position that, even when limited for this type of procedures, is still possible.

I always advise clients to answer the repossession with a dation counteroffer in order to  reach an agreement with the bank to have the whole debt  settled after the auction.  Of course the difficulty of this varies depending on the equity you have on the house.

As you know the way the Bank has to obtain  liquid value out of the house is through public auction after which, if no one bids, the bank can keep it for no lower than 60% of the price it had when it was valuated for mortgage purposes.

Never leave a repossession order unattended as there is also the risk of the Bank applying for the issuing of an european enforcement order against your assets in the UK.

Please let me know if you have further questions,

Kindest regards,

María

Vista de El Bosque. Cádiz

"Vista de El Bosque.Cádiz", Cádiz, Spain, by maesejose, at flickr.com



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Legal tip 633. Free guide on Community of Owners Law in Spain
08 November 2011

If you are a President or an active member of your Community of owners, I am sure you will find this quick guide useful. Take and share:

http://issuu.com/mariadecastro/docs/community_of_owners_spain

Kindest!

Maria

Calles de Benalmádena

"Calles de Benalmadena", Malaga, Spain, by Landahlauts, at flickr.com



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Legal tip 632. Murcia Appeal Court for Banks Liability
06 November 2011

Great new Court Decission by Murcia Appeal Court, dated this last September 2011, which establishes that Banks are liable of the refund of all deposits paid in off plan purchases, when the contract is cancelled due to delay, regardless there was an individual certificate of Guarantee or not.

Just proving you make payments to a Bank account held by the developer, Banks need to refund you, with legal interests and legal costs, regardless they were into a special account or not.

So, if you were paid just the amounts corresponding to the individual certificate of Bank Guarantee which was effectively issued to you, just ask now for the refund of the rest of your deposits, which did not have certificates of Bank Guarantees.

Excellent new for many of our Murcia clients. Great understanding of Law 57/68 again.

Keith Rule..... you are getting there!

Keep them coming!

Maria

P9251500

"P9251500".Cortes de la Frontera, Málaga, Spain, by stressbone, at flickr.com



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Legal tip 631. Creative law
04 November 2011

That is the best of being a Lawyer: you can create solutions out of Law, Customs and General Principles of Law. You can change structures, systems... by argumenting their illegal nature or their illegal effects.

In Spain, we are not that linked to precedent and Case Law as Commun Law countries and therefore room for creativity, under rigurous legal reasoning is bigger.

One of the most important subjects of our Law Degree curriculum in Spain is Natural Law or Philosophy of Law , which both help to create your own legal critic spirit, your confrontational point.....

That is what counts. In that sense I learn a lot from my clients, layman people, non legal proffessionals who bring to me a continued and fresh sense of Justice beyond the limits of existing Case Law.

The power of human spirit.... oh yeah!

Cheers

Iglesia Cortes de la Frontera Desat Cutout

"Iglesia Cortes de la Frontera", Malaga, Spain, by BY-YOUR, at flickr.com



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Legal tip 630. Lawyers to reform Justice
03 November 2011

 


CGAE president, Carlos Carnicer, took the start of the Tenth Congress of Lawyers in Cadiz to say that "it is a social need that we have to deal once and for all radical reforms in the administration of justice." The president said the law "has been patched many times its structure, but the system for the administration of justice fails to take the step of the society it serves. And such vital laws to deliver justice as the Criminal Procedure Act (1882) or the Civil Code (1889), designed for nineteenth century society, remain valid in the XXI century. "


For his part, Justice Minister Francisco Caamano, highlighted the figure of the lawyer, who demanded "knowledge, analysis and ethical conviction, as well as responsibility."

On the other hand, Carnicer expressed "among all (politicians, judges, prosecutors, lawyers, court clerks and officials) we need to regenerate justice, with imagination, using and even rushing the new technologies that facilitate the efficiency, effectiveness and transparency.”


The president of the Spanish lawyers also took some self-criticism. "Ultimately, the public service of justice has not satisfied citizens and professionals. Many of us have never understood why the modernization of the public service of justice has been much more difficult than that of complex services such as health or public finance and others who are constantly adapting to technological advances, "said Carnicer. 

 

For this reason, he called for a pact of State for justice. With full participation of Law people for the creation of a new culture of Justice in Spain.

 

044 WADA - Calle albaicinera

"Calle Albaicinera", Coin, Malaga, Spain, by Miradas de Andalucia, at flickr.com



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Legal tip 629. Refunds by CostaLuz
03 November 2011

We have made an account today and there are around 100 people who have received refunds related to failed off plan investments during the last  6 years. Not a bad rate. Roughly 17 a year,  almost 1 and a half  a month. Not bad at all.

We hope to being able to keep offering to you same service and many other ones more during the years to come.

Kindest,

Maria

043 WADA - Rincón albaicinero 1

"Rincon Albaicinero", Coin, Malaga, Spain, by Miradas de Andalucia, at flickr.com



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Legal tip 628. Spanish Banks can cover losses of developers
03 November 2011

Ordonez, governor of Bank of Spain, states Banks can cover losses of developers.

The good new is that it is not just the spanish Ordoñez but also the  European Banking Authority (EBA) who  back that the Spanish financial sector has provisions for real estate risks of approximately 55,000 million of Euros, including the anti-crisis savings.

The mainstays of the system are healthy. There are problems  with some finantial entities which are identified, limited and manageable.

The report of Bank of Spain focuses again on real estate exposure.  Sovereign risk is not the enemy to fight in Spain. PP shares this vision.

It is the same vision Paul de Grauwe had bak in 1998 before the Euro was coming in ( you can read his wise, kind of prophetic announcement here)

At least, we know what the illness is and can find the right treatment, this is another good new.

See you in Spain,

Maria

053 WADA - Vista de Coín Cuesta la Reina

"Vista de Coin Cuesta La Reina", Malaga, Spain, by Miradas de Andalucía, at flickr.com



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