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El blog de Maria

Your daily Spanish Law reporter. Have it with a cafe con leche.
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Legal tip 1210.- General Guarantees for Corvera Phases 3 and 4 located
30 September 2014

Just in case any of you have still not received your refunds for phases 3 and 4

Cheers,

Maria

Corvera Golf, Murcia, East of Spain



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Legal post 1209. Questions and answers on Law 57/68
24 September 2014

From today´s forum ( Questions and ansers between Ads and Maria)

Ads: Questions below in bold green:

Maria,

I have more questions relating to a far wider perspective of the problems encountered due to lack of LFO provision, which I would be extremely grateful if you could clarify on each point please.

 

Q-Is it mandatory for the LFO to be provided by the date of completion according to the date mutually agreed in the purchase contract? 

A-According to Law 57/68 it is. According to so far Supreme Court interpretations ( Supreme Court is not using Law 57/68, incorrectly, according to my legal point of view), not always

 

Q-If not, how are purchasers' rights protected under Ley 57/68 if a purchaser refuses to proceed to completion due to non provision of LFO? 

A-I wonder the same. I undertsand that social sensitive, history sensitive, good faith sensitive interpretation of law is needed ( it is established in provision 3 of our Civil Code:

 

Article 3.
1. Rules shall be construed according to the proper meaning of their wording and in connection with the
context, with their historical and legislative background and with the social reality of the time in which they are
to be applied, mainly attending to their spirit and purpose.
2. Equity must be taken into account in applying rules, but the resolutions of the Courts may only be based
exclusively on equity when the law expressly allows this

 

But every case needs to be treated much in detail by Judges as Law 57/68 has a tuitive ( protective), imnperative character in its definition and contents, which has been reiteratedly made clear by Judges at Appeal and Supreme Court level

 

Q-Do these rights remain until provision of LFO? 

 

A-According to Law 57/68, they do. And even more, according to Law 57/68,  they remain till effective hand over of the property to buyers.  Think for instance of a buyer who  can oppose completion at at Notary if he clearly finds FOL has been  unduly granted. 

 

Q-Due to recent SC (Supreme Court) ruling, i.e. time constraints on legal action to recognise cancellation rights and return of monies, have the SC effectively overruled purchasers' inalienable rights, and is this in contravention of the rule of law and principal of legal certainty? See http://europa.eu/rapid/press-release_IP-14-237_en.htm Viviane Redings recent framework to safeguard the rule of law, which states

“(b) legal certainty, which requires amongst other things that rules are clear and predictable and cannot be changed retrospectively; “

A-Take always into account that what SC is doing is an interpretation accordiong to provision 3 of the Civil Code ( as above). It is true that there are different type of cases and situations and together with buyers who bought a second home and acted for cancellation right after the default was clear, there are other ones who did not care about the delays, abandonned their investments and are now trying to regain a benefit which can be considered out of the legitimate protection that Law 57/68 is providing to home buyers. But again, every case is different and general answers very rarely are useful in practical Law.

 

Q-Does any failure to make mandatory the provision of LFO by the completion date as per purchase contract also demonstrate unequal favour towards developers/Banks thereby contravening another rule of law which in Viviane Reding’s recent framework to safeguard the rule of law it was stated

A-Those off plan contracts where completion deadline were not clearly expressed have always been, in our opinion, null and void, according to LAw 57/68 and Consumers Act. It has not always been easy to deffend that in Courts. Most buyers in the real estate boom were not well informed, other ones, it is true, were not caring too much for completion deadlines as they were possibly buying an investment product to be resold. Again, every case is different.

(f) equality before the law. The Court has emphasised the role of equal treatment as a general principle of EU law by stating that "it must be recalled that the principle of equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union".

 

Many thanks as ever.

THANK YOU AND ALL ON EOS!

Mudejar Pavilion, in the "Mª Luisa Park", Seville, South of Spain

 

 

 



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Legal tip 1208. Refreshing the clear ideas on European Enforcement Orders EEO
23 September 2014

RIGHTS TO DEFENCE

The Spanish Bank trying to enforce a mortgage debt using an  EEO for the seizure of UK assets, need of course to follow the procedural rules in Spain first as if not, there will  be no debt to be established as Internationally enforceable by the said order.

If a Bank obtained an EEO without serving legal notice of repossession to the debtor and/or without giving to the debtor the legally required possiblities for contest and defence, you, the debtor, in the UK, who would see your UK goods "at risk" will have rights to contest the issuing and the enforcing of the EEO as null and void as well as lack of due procedure after mortagge default.

Rights to defence is one of the most important rights of our Constitution and every State of Law and it has of course been fully covered when the EU created the EEO.

It is important to remark here that  opposition rights for Spanish mortgages´debtors have been clrearly strengthened by the ECJ ( European Court of Justice) recently.

THREE KEY IDEAS TO TAKE INTO GOOD ACCOUNT

1) The claim needs to be uncontested

2) The European Regulation stablishes minimum standards with regard to the service of documents (the document instituting proceedings and, where applicable, the  summons to a court hearing) to ensure that the rights of the defence are respected. Only the document service methods listed in the Regulation are allowed if the judgment is to be certified as a European enforcement order.

3) The competent court in the enforcing Member State may, subject to certain conditions,refuse to enforce a judgment if it is irreconcilable with an earlier judgment given in any Member State or in a third country. In certain cases, it can also stay or limit enforcement.

Sevilla, South western Spain, at facebook.com

 

 



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Legal tip 1207. UK hearing on European Enforcement Order
19 September 2014

Next October 13rd, we are assisting, possibly as witnesses, a client in a UK Court hearing where a Bank was, in our opinion, using an illegal European Enforcement Order for threatening him and having him paying a mortgage debt he just cannot pay. 

We will keep you updated on results...

Very interesting. Do not get intimidated by Debt Collectors/Solicitors using the EEO as, they are sometimes doing an illegal use of this. Have an expertise lawyer verifying this for you.

Beach of "Gulpiyuri" (the smallest beach in the world), among Llanes and Ribadesella (Asturias), North western Spain, at facebook.com



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Legal tip 1206. My meetings with Gotardo at Palmera Properties
19 September 2014

Back in 2008-2010....at those years I always had faith Gotardo would voluntarily provide them to us. I remarked to him how that would have helped many of Palmera Properties victims and and thought he was wise enough to understand the relevancy of this. It did not happen. He did not have the time, he argued.

Now, as Case Law ( both by Supreme Court and Appeal Court) insists on describing the control of the  account where deposits were paid as a guarantee for the buyer ....

SSTS: 11April2013, 10December2012,25October2011, 19 July2004, 8March2001, 1 December 1998, 22 September1997, 22October1985, 7June1983)

SSAP: Murcia April2014, Burgos April 2014,Burgos Marzo2014, Burgos Enero2014, Leon December2013, Granada November2013, Gomera October2013, Burgos September2013, Albacete April2013, Madrid February2013, Pamplona February2013, Burgos January2013, Madrid January2013, Burgos October2012, Lleida October2012, Albacete September2012, Burgos June2012, Hellín June2012, Burgos July2011, Vélez-Málaga September 2010, Santander March2010, Leon July2009, Soria November2006) 

.....now, Judges are very open to provide them to lawyers at preliminary diligences. So, there we go!

Have a great weekend!

Maria

Bolonia, Tarifa, Cádiz, Costa de la Luz, South western Spain, at facebook.com

 

 

 



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Legal tip 1205. Buying property in Spain: Do not sign before checking:
12 September 2014

PROPERTY buying IN SPAIN.  TO KNOW BEFORE SIGNING ANYTHING...

 

Property Deposit contract (PDC)  in Spain is not just about giving some money out  for the reservation of the property out of the market.

In many occassions,  PDC contains very important agreements of the sale, specially of you are not signing any private purchase contract before Notary deeds.

 

Tell me more...

 


Initially, a deposit contract  is an agreement by which the buyer commits to pay  the seller an amount of money as a guarantee for the fulfillment of a property purchase. The seller, in its turn, commits to the sale of  the house to that person within a determined deadline and according to the conditions agreed thereby. This is where all importance of Deposit contract comes in.


Penalties: Deposits contracts generally follow the rule of provision 1454 of the Civil Code which establishes:

 

Article 1454 of Spanish Civil Code:

 

“If earnest money or a deposit should have been provided in a contract of sale and purchase, the contract may be rescinded by the purchaser by agreeing to forfeit the earnest money or deposit, or the seller to return it in duplicate”.

 

Other penalties can be agreed by free will of parties, always provided they are not against the laws, the morals or public policy.

 

Contents of the  deposit contract depends on if you are signing a Private Purchase Contract (PPC) or not.


 A) If you ARE SIGNING a PPC

 

It just needs to contain main aspects of the agreement that has been reached in previous negotiations such as:

 

1. - Personal data of seller and buyer

 

2. - Full Property data

 

3. -  Main aspects to sale:  agreed price, method of payment with clear expression of the nature of money which is being paid ( guarantee, part of price, refundable, non refundable, under which circusntances....)

 

4. - Penalties attached to breaching of this contract

 

5.- Expenses and taxes involved

 

6. - Date for signing of deed.

 
 B) If you ARE NOT SIGNING  a PPC

 

Almost every detail of the purchase needs to be identified there as Deposit contract will actually be then, your PPC.

Our tips:

 

1) If you don’t speak or understand Spanish sufficiently, ask the owner to provide translation of the contract or look for a translator. Ask the seller to oay half of this cost.

 

 2) Revise  date and place of deposit contract.

 

3) Check on parties legitimation for the transaction::

 

- If sale is between two individual parties, the document must be signed by all the registry owners, themselves or through sufficient representatives.

 

-If  the property is  part of the marital community, the document must be signed by both husband and wife. The character of the good (either marital or privative 50/50) is mentioned in the Nota Simple.

 

-If  it is signed by a proxy, the authorized person will have to present the authorized  orginal notary copy and the power of attorney (POA) document must contain all necessary faculties for the sale

 

-If  sellers are heirs of the Land Registry owner, it is necessary to check on the probate documents together with the sales one themselves.  They will have to adjudicate the Inheritance before you signing the final Notary deed for the transmission of ownership. 

 

4) If the house has a recent  refurbishment baeing made, make sure this was done with the required Work License from the Town Hall and that the “ Declaracion de Obra Nueva” has been made and registered. Check on coincidence between Catastro, Reality and Land Registry. There are many discrepancies among these three that should be covered before signing Notary deed. 

 

5) If  buying a country house, check on water, phone and electricity utilities.  Check on legals of the well, river rights....

 

6) Charges on the house: All of them contained on Land Registry info. It is easy to check them out.

 

7)  Community of owners’ fees.  House backs unpaid community fees for a period of previous 3 years plus year of purchase.  Get copies of the Statutes and internal rules of the building too.

 

8) Price, deposit and payment method:   There is no VAT to be paid on resales. You will have to pay the Transfer Tax. Transfer tax rates vary by autonomous communities in Spain.

 

9)  Official protection Houses: they have got  official value,  check the Nota Simple to see that your house is not VPO. (Official protection housing)

 

10) Public deed signing date: determined and clear date for signing the Public deed before a Notary, extension conditions and penalties involved.

 

11)  Related expenses. What are them and who pays them?  Plusvalia tax, Notary deeds and Registry Fees. 



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Legal tip 1204. Is Spain updated in terms of Consumers rights?
10 September 2014

An answer for a comment of yesterdsay´s post on how European Directives on Consumers Law apply in Spain:

Ads:
Of course Spanish lawyer can bring EU directives to the attention of the Spanish judiciary, but Judges are bound by these just if these have been incorporated to Spanish Legislation.

Most recent EU Directive on Consumers rights ( 2011/83/EU) has recently been "transposed" ( inmplemented) by Spanish Legislative Power through:

"Ley 3/2014, de 27 de marzo, por la que se modifica el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias, aprobado por el Real Decreto Legislativo 1/2007, de 16 de noviembre".

Carrión de los Condes, Palencia, West of Galice and South of Cantabria, Northern Spain, at facebook.com

 

 

 



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Legal tip 1203. Timeshare out in Spain
10 September 2014

Spanish Law on Timeshare . Getting out?

All contracts trading rights to use one or more real estate in Spain during a specific or specifiable period along the year are under this law whatever place and date of contracting.

Time share rights are those which give to the holder the faculties for use and enjoyment of an independent dwelling, with exclusive character, for a specific period of time within the year.. It includes the necessary furniture for this use and the complementary services. It is regulated in Spain by a Law dated 1998 and have been extended by a 2012 Law.

The Spanish regulation considers time-share as a type of seasonal rental. The holder of time-share rights does 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 use and enjoyment rights on the sold unit, which will remain for the contracted period.

Provision 1.4 of Law 42/1998 prohibited the denomination of those rights as “multiownership" or any other way containing the word “ownership"  “ owner” or "property".

For this reason, any contract signed 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 use and enjoyment  in shifts"

Publicity or promotion of these type of developments can never either contain the word "propiedad"(property or ownership)

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.

Cooling off period is of 14 days. No advanced payment, constitution of guarantee, reservation of money in account or debt acknowledgement in favor of the trader or third party can be made before the end of the withdrawal period

All the pre-contractual info and advertising needs to be provided in advance and through an standard form as per regulations.

Contract needs to be in written and in both consumer and trader language if this last operates in Spain.

Main legal characteristics of time share rights in Spain are:

- It is a limited ownership right (enjoyment): two or more different people hold rights on same property: the owner and the holder/s of enjoyment rights. 

- It is immediate, as, in shifts, it gives to its holder a direct enjoyment of the property.

-It has entrance in the Land Registry which gives to its holder a complete legal safety within the Spanish legal system. Obviously time share rights need to be transmitted by Notary deeds for its entrance into the Land Registry.

-It can be transmitted to others either in life or by death. They are part of the property trade.

 
 

Together with desisting from or cancelling the time share contract, possibilities that are subject to a shorter deadline, there is the possibility, initially sine die (without deadline) to apply for the nullity of the contract.

In what cases?

- When timeshare rights are transmitted disregarding the imperative Law which regulates them.

- When the transmission of time share rights are made before the scheme is actually constituted

- When there is a lack of veracity on information provided to the buyer. 

The action for the refund of amounts linked to the nullity has a 15 years deadline.

There is numerous precedents in Spanish Courts for the nullity and refund of money if you were sold under the term " propiedad"(property)

The important issue of adaptation

From January 1999 any preexisting timeshare regime needs to adapt to this Law. If this has not happened, any holder of timeshare rights will be able to request a Judge to compel the developer to do so.

Adaptation will always require a Notary deed and proper registration in the Land Registry.

Adaptation will respect the nature of rights which were transmitted by virtue of the old private contract. If ownership was transmitted, this is what it will have to be registered after approval of simple majority of Community of owners.

All old contracts will have a time limit of 50 years unless parties have agreed otherwise or parties mutually or freely agree in the adaptation deed on a different definitive or non-definitive period.

If the owner of the development does not comply with the obligation of adapting the regime to this new regulation, the holder of timeshare rights will have rights to cancel the contract with effective devolution of amounts and compensation of damages.

2 recent Court decisions on Timeshare and associated bank loans

Asturias Appeal Court, January 2014

A recent Court Decision by Asturias Appeal Court establishes the nullity of the timeshare contract, applying provision 1261 of the Spanish Civil Code and request not just the Timeshare company but the related Bank ( jointly and severally) to refund the consumer all amounts paid plus legal interests plus legal costs. Under the theory of linked contracts.

Asturias Appeal Court estimates that the Bank acted as exclusive entity for the financing of the product and therefore both contracts are linked and both affected by the nullity vice.

Madrid Appeal Court, February 2014

Madrid Appeal Court estimates the appeal filed by the purchasers of timeshare rights and cancel both the  contract and the associated personal loan under the theory on linking contracts. 

There is a very relevant breach of contract by the seller as the buyer was never informed on his rights of  withdrawal and unilateral cancellation of the contract.

Simancas, Valladolid, North western Madrid, Spain, at facebook.com

 

 

 

 

 

 

 

 


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Legal tip 1202. Being repossessed? Check on abusive clauses
09 September 2014

A decree approved last Friday, 2014 September 5th by the Executive provides that the mortgagor being repossessed, may file an appeal against the order to dismiss their opposition to the execution in the event that opposition denounced an unfair contract term.

This possibility is included in the amendment of the Civil Procedure Act in order to comply with the judgment of the Court of Justice of the European Union of 17th July 2014.

This new provision will apply to foreclosure proceedings in which there had been no entry into possession of the property by the auction acquiring person.

One month´s deadline (till 8th of October 2014) is provided for an appeal to be exercised in  those procedures where opposition was rejected in the past and allegations on abusive clauses were contained in it.  

Benissa, Alicante, Eastern Spain, at facebook.com



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Legal tip 1201. EU Court states discrimination of Spain IHT
04 September 2014

European Court declared yesterday that  Spain tax on inheritance and gift is, in part, contrary to Community legislation.

Luxembourg has just ruled that the tax is contrary to Community law as it forces foreign residents to pay higher taxes than Spanish residents.

This tribute is regulated by Regions (Communidades autónomas) and these offers tax deductions of which can only benefit the residents in that region. Thus, residents in another EU country or holders of property located outside the country are forced to pay higher taxes.

The Court of Justice of the European Union (ECJ) considers that there is "no objective difference that could justify this difference in treatment" between the situation of a resident and a non-resident or from a property located in Spain or in another country.

European justice agrees with the EU executive, who brought the case to court in 2012, and believes that this involved a "restriction" on free movement of capital, one of the pillars of the European Union.

The judgment, unappealable, is now mandatory for Spain.  Spain will have to modify Law 22/2009 on cession of IHT tax to regions so non residents receiving an inheritance in Spain can benefit from regional allowances.

 IMPORTANT NOTICE: If you are a non resident and you paid IHT tax in Spain during the last four years, a refund claim is possible now

Plaza Arco Magdalena, Baza, Granada, South eastern Spain, at facebook.com



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Legal tip 1200. Question on avoiding forced heirs in Spain
04 September 2014

On the forum today:

QUESTION:

Maria, what if a person has a UK will for their assets in the UK and a Spanish will for their assets in .

Spain?

Surely , as UK had not yet signed up to this rule, British law will still apply to their UK will, and they would only have to amend it   If the UK signed up?

ANSWER:

Uk Law will apply to that person in all cases but IF he/she does not have estate assets in the Uk and  he has Spanish residency.  Why? Because in this case , UK Law forwards his inheritance to Spain Law.

In that case, if this person wants to avoid the application of Spanish Inheritance Law ( legal heirs), as it would be due to his spanish residency,  he needs to make a new will by which he states he chooses UK Inheritance Law.

 

When does he need to grant it? Prior to August 2015, just in prevention he died with a current will that could be contested by his "legal heirs" according to Spanish Law.

Of course wills can also be made after August 2015. As said above, doing it before August 2015,  is just a matter of prevention for if someone dies before that date and leave things into the Spanish Inheritance rules because of being resident in Spain.

Granada from the Veredillas de San Cristóbal, South eastern Spain, at facebook.com

 

 



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Legal tip 1199. NEW! Today´s case won: against BANCO MARE NOSTRUM (INROAL development)
03 September 2014

New Case Law won today in Roquetas de Mar against Caja Granada in a development by Inroal:

Financial entity needs to refund buyers by application of provision 1 of Law 57/68 as " UNDER ITS LIABILITY", it opened  a special account for the developer and received off plan deposits without controlling the existence of individual Bank Guarantees. 

Roquetas de Mar, Almeria, South eastern Spain



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Legal tip 1198. Brussels IV or on how to avoid my forced heirs
03 September 2014

Brussels IV or on how to avoid my forced heirs

 We already posted several times on this.  A new EU Regulation passed in 2012 (650/2012, also knows as Brussels IV) brings easiness to international inheritances.

These regulation has three basic pillars:

  1. It makes sure that every succession is treated under a single Law and by one authority.
  2. It also enables citizens to choose between law of residency and law of nationality for their inheritance affairs.
  3.  Creation of the European Certificate of Sucession

Brussels IV applies to inheritances with or without testament. It does not imply, in any sense, the alteration of  the substantive National inheritance Law of every European Country. Matters such as who are inheritors, or how taxes apply are not impacted in any way by this new European regulation.

This regulation also creates the European Certificate of Succession, which will facilitate the proving of status and rights as heir/ administrator of the estate/ executor of will. This certificate will be issued by the country where the deceased had habitual residency and will provide proof of entitlement in the estate to all signatory countries.

After this regulation, if you are a UK National but live permanently in Spain and have no estate assets in the UK make sure that you choose law of Nationality in your will as on the contrary, your inheritance will be governed by Spanish rules and its obligatory heirs at your death

 

These rules will apply to all persons dying after 17th of August 2015 so it is important that you make the necessary preventive changes in your will before that date.  You can use this new regulation and choose Nationality Law now, always provided you perform the change according to rules set up in the regulation/ applicable private International Law.

Residency status is determined by facts: duration and regularity of the deceased´s presence in the country. Residency requires close and stable connection with the specific country.

UK, Denmark and Ireland did not sign the regulation but any UK, Denmark or Irish national having habitual residency in Spain are under the force of this regulation and if they want their national succession Law to be applied they need to grant a new will in Spain . If they had assets in the UK, Ireland or Denmark a grant of probate will be necessary to administer the Uk, Ireland or Denmark assets.

The Regulation is not applicable to persons residing in the UK who just own Spanish assets. Private international law rules of English law would apply Spanish law to any property situated in Spain and therefore Spanish law will always apply to Spanish property owned by UK residents.

Cazorla (Jaén), South eastern Spain, at facebook.com



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