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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 1295. NEW! WON CASE against Caja Rural Central for PROMOCIONES EUROHOUSE buyer on Residencial Los Balcones del Valle
30 April 2015

WON CASE AGAINST CAJA RURAL CENTRAL FOR PROMOCIONES EUROHOUSE BUYER ON RESIDENCIAL LOS BALCONES DEL VALLE

We were pleased to notify one of our clients today that we had won their case against Caja Rural Central.  The client did not receive an individual Guarantee from the developer, Promociones Eurohouse or from the Bank to which his off-plan deposit was paid, Caja Rural Central.

Re: YOUR CASE AGAINST CAJA RURAL CENTRAL, SOCIEDAD COOPERATIVA DE CREDITO 

Please find attached Sentence number XX/2015 from the First Instance Court No.3 in Orihuela.

Your case against CAJA RURAL CENTRAL has been won.

The final paragraph of the First Instance Sentence delivered on 23 April 2015 and notified on 28 April 2015 states: 

“I estimate the Lawsuit filed on behalf of MR xxxxx xxxxxxx xxxxxxx against the bank CAJA RURAL CENTRAL SOCIEDAD COOPERATIVA DE CREDITO, and must condemn the defendant to pay the plaintiff the amount of 26,567.34€ plus legal interest from the date of payment of the amounts to the Bank until the date of this resolution, after that will accrue penalty interest according to Art. 576 of the LEC, without an express order of costs”

So CAJA RURAL is liable to refund the amount of 26,567.34€ plus legal interest from the date the payment was made to the Promociones Eurohouse account at CAJA RURAL until the date of the Sentence.  Penalty interest will accrue from the date of the Court Sentence until full payment to the Court.  

The Judge states that due to serious doubts of concurrent law, given the existence of contradictory jurisprudence from the Supreme Court dated 5 February 2013 and 20 January 2015 relating to the interpretation of LEY 57/1968, costs were not imposed on any one party.  Therefore each party will bear its own legal costs and any common costs will be halved.

The Sentence explains the liability of CAJA RURAL according to its obligations under LEY 57/1968 for the off-plan deposits paid to accounts opened by the developer, PROMOCIONES EUROHOUSE 2010 S.L. in CAJA RURAL.

Particular points of interest stated by the Judge in the Sentence are: 

“The payments were made through the agent Ole Mediterraneo S.L, however it should be noted that the fact that a payment is made by a third party does not deprive it of effectiveness.  So payments made on behalf of the buyer by the agent Ole Mediterraneo S.L. are fully valid.

The non-delivery of individual Guarantees to the buyer does not prevent the right of the buyer to have its funds legally guaranteed as established by LEY 57/1968.

Such Guarantees are fixed by a mandatory legal requirement which cannot be waived in accordance with Art. 7 of LEY 57/1968 which has a clear protective purpose for the buyer (Supreme Court 15 November 1999).

Therefore we must uphold the claim made by the plaintiff, because there being a credit contract between the Bank, CAJA RURAL CENTRAL and the Developer, the buyer acquires the right to recover the amounts paid to the Bank on account of the purchase price of the housing under the legislation cited and any defaults between the 



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Legal tip 1294. NEW! WON CASE against BBVA for PROMOCIONES EUROHOUSE Buyers on Residencial Fortuna Golf & Apartamentos Turísticos Pueblo La Sal
30 April 2015

WON CASE AGAINST BBVA FOR PROMOCIONES EUROHOUSE BUYERS ON RESIDENCIAL FORTUNA GOLF RESORT & APARTMENTOS TURISTICOS PUEBLO LA SAL

We were pleased to notify our clients today that we had won their case against BBVA.  The clients did not receive individual Guarantees from the developer, Promociones Eurohouse or from the Bank to which their off-plan deposit was paid, BBVA.

Re: YOUR CASE AGAINST BANCO BILBAO VIZCAYA ARGENTARIA S.A.

Please find attached Sentence number xx/2015 from the First Instance Court No.5 in Orihuela.

Your case against BBVA has been partially won.

The final paragraph of the First Instance Sentence delivered on 22 April 2015 and notified on 28 April 2015 states: 

“That partially upholding the Lawsuit filed on behalf of Mr XXXXXX XXXX XXXXX  & Mr XXXXXX XXXX XXXXX against BANCO BILBAO VIZCAYA ARGENTARIA S.A. I must condemn the defendant to pay the plaintiff the amount of 23,964.66€ plus legal interest from the date of payment of the amounts to the Bank until the date of full payment.

The costs are not imposed on any party”

So BBVA is liable to refund the amount of 23,964.66€ plus legal interest from the date the payment was made to the Promociones Eurohouse account at BBVA until the date of full payment to the Court.  

Due to doubts regarding the liability of Banks for when accepting advance payments for the sale of off-plan housing costs were not imposed on any one party.  Therefore each party will bear its own legal costs and any common costs will be halved.

The Bank will must pay the total amount of 23,964.66€ which is allocated as follows:

20,964.66€ plus legal interest to Messrs XXXXX
3,000€ plus legal interest to Messrs XXXXXXX

The Sentence explains the liability of BBVA according to its obligations under LEY 57/1968 for the off-plan deposits paid to accounts opened by the developer, PROMOCIONES EUROHOUSE 2010 S.L. in BBVA.

Particular points of interest stated by the Judge in the Sentence are: 

“Account extracts showed 3 specific quantities being paid to the current account opened by Promociones Eurohouse 2010 S.L. in BBVA, so regardless of whether the account was a ‘Special Account’, the bank knew the nature of the business of the account holder and knew that income in that account was from advance payments from buyers of off-plan housing.

The evidence infers that the defendant bank had knowledge that the amounts paid stemmed from advances for off-plan housing purchases and therefore it must apply a monitoring role over the account an has a duty to ensure that the developer constitutes the Guarantees required by Article 1.2 of LEY 57/1968 for the money received through its accounts from purchasers”

Sierra of Orihuela, Alicante, Eastern Spain



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Legal tip 1293. First Occupation License is NECESSARY in Valencia Region
28 April 2015

First Occupation License is necessary for the registration of Finished New Work Notary Deed and registration and therefore for  posterior first transmissions  ( from developers to buyers).

Whatever regional regulations establishes, as Notaries and Registrars and Constitutional Court in Spain have already set: competency for the determining of the necessary requisites for public documentation ( Notary deeds) and registration ( at the Land Registry) of authorisations and licenses established by regional regulations, is always National.

And National Ground Act clearly establishes the obligatory vertification of existence of First Occupation Licenses before granting of  Finshed New Work deeds and its registration

So, no Notary should authorise Finished New Work Deeds and no Land Registrar should register it before veryfing on the existence on these.

An example of why a good independent lawyer--- better if  locally independent too-- , with good knowledge of Real Estate, Land Registry, Urban and Horizontal Property Law is essential for a safe property purchase in Spain.

Recent history teaches us!

See related post here: http://www.eyeonspain.com/blogs/costaluz/11873/Legal-tip-1075-Registrars-Notaries-and-Planning-regulations.aspx

The Beach "La Malvarrosa", Valencia, East of Spain



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Legal tip 1292. What if I am included in a Debt Registry in Spain?
27 April 2015

There are many ways of defense, those abuses are well controlled and stopped by Courts at present:

Read:

For a creditor to be allowed to communicate a debt to a Debtor Registry, the following requirements must be met:

Debt is certain, overdue and enforceable. No minimum amount is required.

Debt is not older than six years. After this period, the data must be removed from the file, even if the debt has not been satisfied.

Debt has been claimed for payment to the debtor.

During the following 30 days after the inclusion of the debt in the Registry, the creditor must notify you of the registered data and inform you of the opportunity to exercise your rights of access, rectification, cancellation and opposition. Moreover, if you requested it, the Registry must inform you on existing data, evaluations and assessments reported during the last six months, indicating the name and address of the person or entity to which the data have been revealed.

The entry in the Registry should always reflect the real and exact situation of the debt, so that if the debt is being partially paid, must contain only the remaining amount. In any case, it is forbidden to keep registered a debt already paid, even as former debtor or 0 balance.

 What if I have been illegally included?

You need to start by checking if the debt has been included fulfilling all requirements explained above.  Failure o f said requirements allow you to ask for the cancellation of data until the deficiencies are remedied.

If the debt has been included in the file complying with legal requirements, there are other ways to cancellation:

 Pay off debt to the creditor.

 Demonstrate that the debt does not exist.

 Wait for six years to pass since debt birth

Once you justify any of these circumstances to the creditor, this has a period of one week to communicate this to the Debt Registry for your records to be deleted.

If, after this period, data is not cancelled, you need to contact the Debtors Registry and show to them that the debt has been paid or is nonexistent.  After ten days, if you do not receive a proper answer, you can file a complaint with the Spanish Data Protection Agency (AEPD), attaching:

(1) a copy of your ID,

 (2) a copy of the letter by which you requested your removal from the Registry and 

(3)  documentation evidencing the payment or non-existence of the debt.

 

After the appropriate administrative procedure if registration is improper, the AEPD will order the data to be canceled. It is also possible that disciplinary proceedings against the entity in breach of its obligations will open, which is an important element of coercion for companies to comply with Law.

Can I be compensated? Of course you can!

The inclusion of a debt in a Debt Registry without fulfilling all the requirements or the failure to cancel the records once debt is paid is sufficient cause to seek compensation for the damages that the failure may have caused.

Way ahead is a civil action against both entities: creditor and debt registry based on basically two Law bases:

-Lesion of the right to honor

-Tort liability, if they had caused damages of patrimonial nature

Can I also claim moral damages?

Yes, you can. Spain Case Law is positively oriented to cover the compensation of moral damages since improper inclusion of a person in these registries implies a “mental pain or suffering" (SSTS May 22, 1995, October 19, 1996 and September 24 1999).

A landscape in Malaga, South eastern Spain, at facebook.com



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Legal tip 1291. NEW! Appeal Case won against PROMAGA and UNICAJA
24 April 2015

 
 
Re: YOUR CASE AGAINST PROMAGA S.A.U. & UNICAJA
PO-xxx/xxxx
 
Please find attached Sentence number 50/2015 from the Provincial Appeal Court Section of Algeciras in Cádiz.
 
I am pleased to advise you that the Provincial Appeal Court has dismissed the Appeal filed by UNICAJA S.A.U. and upheld the First Instance Sentence dated 20 May 2013 issued by the First Instance Court No.3 in La Linea de La Conception, in full.
 
The final paragraph of the First Instance Sentence delivered on 20 May 2013 stated:
 
“I estimate the Lawsuit filed against the company, Promaga S.A.U. declaring the termination of the Purchase Contract between MR XXXXXXX XXXXXXXX & Mrs XXXXXX XXXXXX XXXXXXX  with the commercial company Promaga S.A.U dated 30 December 2004; and condemn in solidarity the co-defendants Promaga S.A.U. & Unicaja to pay in solidarity to the plaintiffs the amount of 22,579.66 Euro (VAT included), together with accrued interest in accordance with Art.576 of the LEC from the date of this present resolution plus the following default interest accrued on that sum: interest according to Art. 3 of LEY 57/1968 from the date of the extrajudicial claim, 9 October 2008, document No. 8 of the Lawsuit for Promaga; interest of Art. 1.101 & 1.108 of CC from the extrajudicial claim dated 29 April 2009, document No. 9 of the Lawsuit for Unicaja; and condemned for half to Promaga S.A.U and to Unicaja the payment of legal costs”
 
 
The final paragraph of the Provincial Appeal Court Sentence delivered on 6 April and notified on 21 April 2015 states: 
 
 
“That dismissing the Appeal filed by UNICAJA S.A.U., against the Sentence of the First Instance Court, we must ratify and fully confirm that Sentence and impose the costs of this Appeal on the Appellant Bank”.
 
 
So the Provincial Appeal Court has dismissed the Unicaja S.A.U. Appeal and upheld the First Instance Sentence in full.  Costs of the Appeal are imposed on Unicaja S.A.U.
 
Unicaja S.A.U. has 20 working days from the date of notification of the Sentence, which was 21 April 2015, to comply with the Sentence or to file a Cassation Appeal to the Supreme Court.
 
If a Cassation Appeal is filed by the defendant it will be necessary for us to file an Opposition to the Appeal on your behalf.
 
CONGRATULATIONS TO CLIENT , ALGECIRAS COURT and COSTALUZ-DECASTRO teams
   


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Legal post 1290. Deutsche Bank condemned to pay for LIBOR manipulating
24 April 2015

Deutsche Bank will pay a $2.5 billion penalty to United States and British authorities to settle accusations  on London Based LIBOR  rate manipulation.  

This index is a reference to set interest rates for trillions of dollars in mortgages, student loans, credit cards.....

 

 Several big financial institutions in various countries were involved in manipulating the rate for their own profit.

Here's  Times story.

Did it have an effect on us? What do you think?

Have a wonderful Bank-free weekend!

María

Defile of the Gaitanes, El Chorro, Ardales, Málaga, South eastern Spain, at facebook.com

 



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Legal tip 1289. REFUND! of your Inheritance Tax
24 April 2015

 

 Inheritance tax in Spain is paid by the heirs

If the beneficiary is a Spanish resident:

According to provision 6 of Act 29/1987 on Inheritance and Donation tax, you will be liable in Spain for the acquisition of all the inherited assets regardless the country they are located. Taxes paid in a foreign country by similar concept will be deducted according to a rule established in provision 23 of the Spanish Inheritance Tax Act.

If the beneficiary is not a Spanish resident:

According to provision 7 same Act, he will be under Spanish Inheritance tax obligation by real obligation (location of goods), and will have to pay Inheritance tax for those goods and rights located in Spain.

From date of death of the deceased, there is 6 months to pay the inheritance tax return. 

There is no agreement for the avoidance of double Inheritance taxation between Spain and the United Kingdom.

European Court recently declared that Spain tax on inheritance and gift is, in part, contrary to Community legislation as it forces foreign residents to pay higher taxes than Spanish residents.

Why is this?

Becuause this tribute is regulated by Regions (Communidades autónomas) and these regional inheritance tax regulations offer 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 as they tribute under the national scale, which does not have those reductions.

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 and believes that this involved a “restriction” on free movement of capital, one of the pillars of the European Union.

The judgment 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.

Discriminatory payments made during the lñast 4 years in Spain can be claimed back from Treasure administration. 

Please, fill and submit the form below now if you think you can claim. We will send further info and free appraisal to you.


If you have any question or problem related to the above articles or to any other legal matter in Spain, please contact us:
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Legal tip 1288. DEADLINE: END OF JUNE:Tax Amnesty for Foreign Retirees
22 April 2015

DEADLINE: END OF JUNE

If pension related taxes were paid prior to the entry into force of the Act in which this measure is contained, all surcharges (including those of the enforcement period), interests and penalties arising from such regularization will be waived, providing the enforcement is still not firm.

If the enforcement is firm, devolution can be requested from the Treasury until the end of June 2015. Amounts paid shall be refunded, without payment of delay interest, within six months from the filing of the claim.

After that time, if no refund has been made the corresponding delay interest shall be paid

We are happy to help you and your friends on it.

Write to us on this  and  please feel free to share it to friends and relatives using EyeonSpain social buttons below         

         

Casares, Málaga, South eastern Spain, at facebook.com

 



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Legal tip 1287. Illegal charges by Tax Administration
21 April 2015

The Administration can check the value of your home based on the following criteria: cadastral value multiplied by a corrector coefficient, market comparison method, market studies conducted by the same administration and impact ground coefficients in cases of Land.

The most common index administration used is the cadastral value multiplied by a coefficient that is sometimes almost 10 years old.  These cases can be challenged and are easy to win if the arguments are well chosen and directed.

The procedure generally entails one claim before the Administration and a case before the Regional Economic Administrative Court. These claims have no Court fees attached.

The procedures take approximately one year.

Finally, if your claim does not come to fruition you can always exercise Contradictory Valuation by an Expert and if your score is 10% or lower than the valuation performed by the Administration, your value will have to be taken as the correct one by the Administration.

Just let us know if you have questions regarding this: we are happy to answer. You contribute this way to our duty of constant study and updating ;)

In the background, Zahara de la Sierra, Cádiz, South of Spain, at facebook.com

 


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