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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 917. Spanish Notaries pro consumers
25 March 2013

 In a great show of what is part of their mission ( Consumers protection),  Spanish Notaries have decided they will stop any Notary repossession procedure is they realise on the existence of abusive clauses. This has been advised to Notaries by their General Council.

Notaries will have faculties to suspend repossession procedures if  the debtor credits admission into procedure of a lawsuit or precautionary measure  for existence of abusive clauses.

Notaries are comitted to also advise creditors so they can take this judicial measure to stop repossession.

So good for Notaries!

El Portil (Huelva)

"El Portil (Huelva)", Huelva, South-west of Spain, by sky_hlv, at flickr.com



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Legal tip 916. Spain changing Mortgage Law
25 March 2013

According to Ministry of Economy, Luis de Guindos, Spanish government is changing Mortgage Law so judges can paralise repossession and eviction procedures so that they have time to search if there are abusive clauses on mortgage deeds. 


Luis de Guindos has informed that, taking chance of the current Law Draft on evictions and the Popular legislative iniciative, the Government will implement the Court Decission of European Justice Court on consumers protection and repossession procedures.

Mezquita-Ermita Almonaster la Real (Huelva)

"Mezquita-Ermita Almonaster Real (Huelva)", Huelva, South-west of Spain, by Trix: Esta vez con mejores noticias! y mucho animo, at flickr.com



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Legal tip 915. Spain Supreme Court punishing Banks on lack of transparency
22 March 2013

New coming a bit late as I have been out of the office for several days! 

 That is the core of the recent Court Decission of our Spanish Supreme Court which declares null and void all interest clauses os mortgage contracts where client was not sufficiently informed.

 

This does not involve the devolution of already paid amounts

Average null cluse is of 3,12% which is contained in 30-40% of existing mortgage contracts in Spain. Euribor is currently at 0,55%.

Order EHA/2899/2011  on Transparency  and protection for Banks clients state that financial entities  must prove that they have informed clients on the existence of these limits before the signing of the mortgage deeds being the contrary against good financial practises and uses.  

Banks will have to prove that the information effort was performed through the binding offer,  clients´file in Bank,or any other document previous to the signing or mortgage contract before the Notary.

What about those mortgages on properties without licenses? Could these contract be considered null and void due to lack of valid guarantee, specially when same Bank funding the development is also offering mortgage to the final buyer?

k Logroño , La Rioja (18)

"K  Logroño, La Rioja (18)", Logroño, La Rioja, Nort-east of Spain, by calafellvalo, at flickr.com



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Legal tip 914.European Court rules Spanish mortgage law is abusive
14 March 2013


Source: El PAIS
 

European Court rules Spanish mortgage law is abusive

Luxembourg tribunal says that national legislation breaches consumer protection directive

 

The European Court of Justice on Thursday ruled that Spain’s mortgage law is incompatible with a European directive on abusive practices in consumer contracts, opening the door to more legal protection for households facing eviction from their family home.

The ruling comes in response to a question posed by a Barcelona court in connection with the eviction of Moroccan immigrant Mohammed Aziz from his home in January 2011, after he failed to meet mortgage payments on a 138,000-euro loan granted to him by savings bank CatalunyaCaixa in July 2007.

The court wanted to know if the eviction breached Aziz’s rights. The European Court ruled Thursday that the process of ousting him from his home infringed the European Union’s 1993 Unfair Terms in Consumer Contracts (93/13EEC) directive on consumer protection.

The ruling will apply to all eviction cases currently being processed across Europe but will not apply retroactively, as pressure groups have been calling for. Amendments to the mortgage law, which is more than a century old, are currently going through parliament, and it appeared as if the government was waiting for the Luxembourg-based court’s judgment before proceeding with the passage of the draft law.

One of the anomalies of the current law in Spain is that if a homeowner fails to meet a single monthly mortgage payment, the bank can initiate accelerated proceedings to evict the borrower and take possession of the property. Even if the borrower alleges the contract he has signed is abusive and a court agrees with him, if the eviction has already been carried out the homeowner has the right to compensation but not the right to recover the property. The bank can also ask for full repayment of the loan even after obtaining possession of the property in question.

“The Court […] holds that the Spanish legislation does not comply with the principle of effectiveness, in so far as it makes it impossible, or excessively difficult, in mortgage enforcement proceedings initiated by sellers or suppliers against consumer defendants, to apply the protection that the (93/13EEC) directive confers on those consumers,” the court’s ruling said.

The court also questioned whether Aziz would have willingly signed on equal terms with the bank a contract that included a penalty clause for back payments with an annual default rate of 18.75 percent. “The national court must in particular compare that rate with the statutory interest rate and determine whether it is appropriate for securing the attainment of the objectives pursued in Spain and does not go beyond what is necessary to achieve them,” the court determined.

Plataforma de Afectados por la Hipoteca - Valencia

"Plataforma de Afectados por la Hipoteca - Valencia", Valencia, East of Spain, by Antonio Marin Segovia, at flickr.com



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Legal tip 913. Rental prices down in Spain
13 March 2013

 677 € per month.

5,2% cheaper than a year ago.

 

 

 
Todas las viviendas utilizadas han sido publicadas en Enalquiler.com
 
 
 

Villa Onieva

"Villa Onieva", Málaga, South-east of Spain, by Landahlauts, at flickr.com



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Legal tip 912. NEW! Law 57/68 and Huma: New Case Won by Costaluz
12 March 2013

 In Madrid, against Banco Popular.

Court Decission establishes that none of the following:

- Lack of mention of the word GUARANTEE in the purchase contract

- Lack of mention of special Bank account in purchase contract

- Lack of individual certificate of Bank Guarantee to the particular buyer

exempt Banco Popular ( who issued a Guarantee to Huma for off plan deposits according to Law 57/68) from refunding our client.

Court decission refers to inalienable rights of Law 57/68.

Client had to prove just payment into Bank account and existence of General Bank Guarantee by Banco Popular.

The right understansding is becoming commun. Success of Keith Rule action is spreading across the country.

Colores!!!

"Colores!!!", Burgos, Castilla-León, North of Spain, by Lumiago, at flickr.com



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Legal tip 911. Efforts for employment in Spain
12 March 2013

 President Rajoy is, at this very precise moment,  meeting with main social actors of employment arena in Palacio de La Moncloa to set the strategy for  young enterpreneurship and employment.   

The main of the meeting is to set the best implementation of recently passed Royal Decree on Employment fostering and measures ( which are mostly on the chapter of  aids to Social Security constributions) will be maintained till unemployment rates lower to 15%.

In my opinion, an intensive and attractive campaign, possibly through TV spots, on language learning , Business Administration and culture of innovation, cooperation, and creation of welfare would also be essential to transform many menatalities in the country.

"Fiesta de Graduación 2010", Burgos, North of Spain, by Lumiago, at flickr.com



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Legal tip 910. European Court on Spanish repossessions
11 March 2013

 Next thursday, the 13rd of March, the Justice Court of the European Union will decide if the spanish legal system for repossessions is compatible with European Directive 93/13/EEC.

This will enable individual debtors to stop repossessions and to be able to oppose abusive delay interests so debt after repossession is fully eliminated.

 

Spanish Civil Procedure for opposition to procedures of repossession is very limited against the individual debtor/consumer. The European Justice Court has been called to interpret  "proportion" of:

- Anticipated breach of full contract, just due to lack of payment os several mortgage quotas

- Excessive delay interests, compared to other contracts where consumers are involved.

- Unilateral fixing of interests and pending debts

If on Thursday, Europe declares the unproportioned character of these matters, Judges will have an instrument to stop repossesions and analyse on abusive character of these clauses

Spanish Judge Fernandez Seijo stated that this would allow evicted debtors to return to their repossessed homes if these are not occupied yet with proper compensation of damages.

IMG_2775

"IMG_2775", Tarifa, Cadiz, South of Spain, by Chodaboy, at flickr.com



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Legal tip 909. European Human Rights Court stops Spanish Authorities Decission
07 March 2013

 

According to the Universal Declaration of Human Rights: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including...housing (Article25).

Following this international principle, the ERHC has preventively suspended the demolition order of a house in La Cañada Real (Madrid), which had been ratified by the Higher Justice Court in Madrid. where a family is living illegally until the government of  La Comunidad de Madrid can guarantee an adequate housing.

This measure by the European Court could express that standards to protect right to housing are not being fulfilled by the Spanish Legal and Judicial system. Which is a very important hypothesis.

This family has been offered by these authorities an emergency unit but the ERHC has decided this is not an adequate housing, paying attention to the fact that previously they had asked for an official protection or a special necessity house and they haven´t received any of them (not even a social rent).

Spanish authorities will have to now, determine what an “adequate housing is” and proceed to communication to the European Court which, will issue its verdict on adequateness of the housing. The European Court is also requesting to Spanish Authorities to provide the family with adequate social services

The Spanish Constitution doesn´t recognize the right to a house as a universal right but as a principle to guide social and economic policy

All Spaniards have the right to enjoy decent and adequate housing. The public authorities shall promote the necessary conditions and establish appropriate standards in order to make this right effective…”  “The public authorities shall guarantee the protection of consumers and users and shall, by means of effective measures, safeguard their safety, health and legitimate economic interests” (Articles 47, 51).                                   

What would it happen if this house were a legal construction? Would the EHRC act in the same way?

3-8-Por la Cañada Real (6)

"3-8 Por la Cañada Real (6)", Madrid, Central Spain, by Ela R que R fotos, at flickr.com

 



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Legal tip 908. Keith Rule joins the team at CostaLuz Lawyers
07 March 2013

I have been a witness of the faculties and determination of this UK person since September 2008 when he first emailed us wanting a case against the Bank which received his deposit and those of other members of the Finca Parcs Action Group (then 8, today more than 70).  Not being a law professional but being indeed a man with a remarkable sense of justice he saw clearly from the beginning that the main responsible people were those of the financial institution involved in the development.

From then, he encouraged us to go and study the case at a deeper level and we started our job which has consisted in continuous study of legal doctrine and Case Law also with the help of Law Professors.  Keith has been studying and researching the issue of Banks liabilities according to LEY 57/1968 since 2008 and his efforts to highlight this issue on behalf of all people affected on off-plan developments have included among other things his voluntary work with the Finca Parcs Action Group, Bank Guarantees in Spain Petition & Website, Meetings with the Spanish Government and a meeting with the UK Government.

Today there are more than 30 Court decisions from various Spanish Provincial Courts which make clear the liabilities of Banks in respect of amounts advanced in off plan projects.

Keith has been during the last years for us all at Costa Luz and De Castro Law Firms an incredible example of truth, honesty, leadership and determination. I do think that the First Instance Judge in the Finca Parcs case and even the Banks lawyer was able to see the clear claim for justice he was fighting, just as we saw it in 2008.


The Costa Luz and De Castro Law Firms have been filing cases against developers since 2006 and are now specialists in actions against Banks according to their liabilities established by LEY 57/1968.

We have been asking Keith for sometime to come and work for us and to put his knowledge and experience of fighting against the banks directly to use in helping others in a similar situation.

We are pleased to announce that after much persuasion Keith has now agreed to join our team on a part-time basis.  Keith will be based in the
UK and will be assisting us with client care and helping to construct cases for our other clients against banks on other developments.

As a result Costa Luz Lawyers will now have a
small
UK office to which clients can, by prior appointment, arrange meetings with Keith to discuss their case.  There will also be a UK
client care telephone number and email address.

Further details will be announced to our clients in due course.

Kind regards
María Luisa de Castro and the Costa Luz/ De Castro Team

"Ceuta, Africa, from a viewpoint near Tarifa (Cádiz, South of Spain)".This is a tribute to Keith Rule, by Luis López-Cortijo



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Legal tip 907. Obligation of Information of Goods and Rights Located Abroad
06 March 2013

Royal Decree 1558/2012, of the 15 November, Obligation of Information about Goods and Rights Located Abroad.

This will introduce an obligation to report certain assets located abroad and whose value exceeds € 50,000 on December 31st each year, to all natural and legal individuals resident in Spanish territory, to permanent establishments, heritages and civil communities or partnerships.

While in the future this statement shall be filed between January 1st to March 31st, the 2012 statement must be submitted between the 1st February to the 30th April 2013, in accordance with the Sole Additional Provision of Royal Decree 1715 / 2012, of the 28th December.

You are subject to this obligation if:

- You are a Spanish resident (this includes any citizen or foreign national residing in Spain, Business entities, Inheritances , Partnerships, etc.), or have a permanent establishment in Spain.

- Value of your assets abroad exceed a value of 50,000 € (individually)

-  3 different groups of assets  subject to this obligation:

1. Accounts and deposits with financial institutions located abroad 

Information to be provided:

- Bank name and address

- Swift code, Iban code and account number

- Name of account holders and third parties with access to the account

- Date account was opened or closed

- Date in which any third parties were given access or had their access cancelled

- Balance of the account dated 31st December of the previous year

- Average account balance of the last quarter of the previous year

2. Values, rights, insurances and annuities deposited, managed or obtained abroad.

This group has to be subdivided again into another 5 subgroups:

a. Values located abroad: Information to be provided:

- Company name or full name of the legal entity

- Confirmation of registry details of the company or entity

- Value of the shares dated 31st December of the previous year

- Vale of the share capital or equity capital dated 31st December of the previous year

- Number and class of shares you hold

b. Rights located abroad: Information to be provided:

- Company name or full name of the legal entity

- Confirmation of registry details of the company or entity

- Value at 31 December of the securities transferred to third parties for capital or securities contributed to the legal instrum ent

- Value, number and class of securities or the securities provided by such shareholder.

c. Shares in the share capital or endowment of collective investment institutions located abroad:

Information to be provided:

- Company name or full name of the legal entity

- Confirmation of registry details of the company or entity - Value at December 31 shares held, number and type

d. Life and disability insurance when the insurer is located abroad: Inform action to be provided:

- Company name or full name of the legal entity

- Confirmation of registry details of the company or entity - .Surrender value at 31 December.

- The policyholders personal details

e. On temporary or lifetime income obtained as a result of the delivery of a capital in money, or economic rights of real or personal property:

Information to be provided:

- Company name or full name and address of the insurance company - Value of income capitalization at 31 December

- Identification of the beneficiary

3. Immoovable property or rights in immovable property situated abroad: Information to be provided:

- Country or territory in which you are located. - Address

- Acquisition date

- Acquisition value

* Note: The obligation extends to any taxpayer who had been the holder or beneficial owner of securities or rights during 2012 but no longer is on December 31st, and must provide the information on the date on which such term ination occurred.

Last day for filing the information (Form 720) for 2012 will be on the 30th April 2012.

 Penalties? 

The penalty consists of a 5,000 Euros fine per item or set of data on the same account, asset or Real Estate property, which should have been included in the statement or had been provided incomplete, inaccurate or false, with a minimum of 10,000 Euros.

The penalty shall be 100 EUR per item or set of data on the same account, asset or liability or property with a minimum of 1,500 Euros, when the declaration was filed after the deadline without prior notification from the Tax Office. Likewise, if the filing of the annual statement is not done electronically via the internet or via written communication it would also be sanctionable.

The Observer

"The Observer", Sacromonte, Granada, South-east of Spain, by Landahlauts, at flickr.com



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Legal tip 906. MIF praises Spain Bank system
01 March 2013

 Yesterday,  in a press round, William Murray ( vice-spokesman of MIF ) , stated that the Spanish Bank System is among the strongest in Europe. 

MIF experts visiting Spain this past month of January  remarked the " great progress" made by Spain on Banks reform, despite some persisten risks for Banks and Spanish economy.

Reform centered on Real Estate and speculative activities should be addresses centrally with the reform of Law 57/68. Many EOS readers would have much to say in this respect.

Keith: did you already address the IMF? Let´s go for it!

María and the CLL team

Banco de españa

"Banco de España", Madrid, Central Spain, by Vic Lic, at flickr.com



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Legal tip 905. Is it Free?
01 March 2013

 

 Is it that free and freely given things is part of our Spanish culture the reason why you are attracted to our country and our lifestyle?

Gratuity is necessary for human beings and society as the air for feeling the dignity of being BIG just becuase being HUMAN.

That´s why we need to progress on creating a social, legal, professional, commercial and financial order which has human being and its dignity as the center of the matter!! So much more fun and enriching!

Anyone willing to help CostaLuz/De Castro to enhance this proffessional culture, please email us to: web@costaluzlawyers.es. We are aiming to the creation of a group of companies/ enterpreneurs living and enjoying this sense of working and this way  of making business and living  proffession. It will give for paying the bills too, I assure you.

Cheers,

Maria and the Costa Luz Lawyers team

Spain pilgrimage

"Spain pilgrimage", Segovia, Center of Spain, by Jobriga at flickr.com



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