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Legal tip 1383.A SPANISH BANK REPOSSESSING YOUR SPANISH HOME?  DO NOT PANIC
27 April 2016

A SPANISH BANK REPOSSESSING YOUR SPANISH HOME?  DO NOT PANIC

Depending if you want to (1) keep the house, or you prefer to, (2) hand it back to the Bank as payment of your debt; there are different procedures to be followed:

 

1) If you want to keep the house: Try to negotiate the payment terms directly with same or different bank.

2) If you think it is worth trying to negotiate with the Bank so that they keep the house in payment of your debt:  do the correct calculations: the bank cannot repossess your Spanish home for less than 50%-70%-- depending if it is first residency or not—of the auction value.

The Auction value is much higher than market value. It is an amount which is composed of principal + legal interests + legal costs: a big sum which in many cases is higher than your current debt.

Do not look at market value for those calculations. No new property valuation is necessary either.

 

3) If the Bank ever (I have only seen this on very rare occasions), starts a European Enforcement Procedure, always remember that:

 

 i) It is not for all claims but just for those claims that are uncontested. The contested claims will have to follow the traditional procedures for execution of Court decisions abroad. So, it is advisable that you contest any repossession attempt in Spain.

ii) The European Regulation lays down 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.

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. 

 

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A house of Mojácar, Almería, South eastern Spain

 

 



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Legal tip 1382. Judicial costs in Spain
27 April 2016

Judicial costs are regulated in Articles 394-398 of the Civil Procedure Act.

The principle of defeating: Costs will be imposed on the party which has been rejected all claims, unless the Court appreciates, with enough legal foundation, that the alleged claim is doubtful in either  fact or law basis. Case Law needs to be included necessarily as part of the fundaments.

In the event that the admission or dismissal of the claims is partial, each party must pay the costs  it has caused and common costs will be paid by half unless the court appreciates that any of them has litigated recklessness.

There is a restriction on the payment of fees to lawyers and professionals who are not subject to tariff , so that the total  costs amount cannot exceed one-third of the amount of the process by each one of the  litigants who receives such a pronouncement, unless the Court declares the recklessness of the litigant ordered to pay costs, in which case there should be no such limitation.

Dismissal of all claims included in an  appeal will  lead necessarily and in accordance with Article 398 of the Civil Procedure Act,  to the imposition of  costs to the applicant.  If estimation is partial, costs will not be imposed to any of the litigants.  With the always applicable exception of the case presenting serious questions of fact or law.

San Felipe street, San Roque, Cádiz, South of Spain



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Legal tip 1381. FORGET ALL WORRIES WHEN RENTING IN SPAIN VI
26 April 2016

 FORGET ALL WORRIES WHEN RENTING IN SPAIN VI

 

 

 Habitability of the housing

 

When the execution in the rented housing of conservation works or works approved by a competent authority make it uninhabitable, the tenant will have the option to suspend the contract or to withdraw from it with no compensation.

 

The suspension of the contract will mean, until the end of the works, the stop of the term of the contract and the suspension of the obligation to pay rent.

 

 Breach of obligations

 

1. The breach by any of the parties of his obligations resulting from the contract will entitle the party who has fulfilled his to require the obligation or to take the necessary steps for the termination of the contract in accordance with Article 1124 of the Civil Code.

 

2. Besides, the landlord will be allowed to terminate the contract for the following reasons:

 

  1. The non-payment of the rent or, in its case, of any of the amounts which payment the tenant had accepted or belongs to him.

 

  1. The non-payment of the guarantee deposit or of its update.

 

 

  1. The sub tenancy or the transfer without the required consent.

 

  1. The execution of damages intentionally done in the property or of works without consent of the landlord when this is necessary.

 

 

  1. When annoying, unhealthy, noxious, dangerous or illegal activities take place in the housing

 

f) When the housing is no longer set aside for satisfying mainly the permanent need of housing of the tenant or of the person who was occupying it effectively according to the provisions of Article 7.

 

3. In the same way, the tenant will be allowed to terminate the contract because of the following reasons:

 

  1. The non-execution by the landlord of the repairs referred to in Article 21.

 

b) The disruption by fact or law done by the landlord in the use of the housing.

 

4. In case of renting of urban property registered in the Land Registry, if it had been stipulated in the contract that the renting will be terminated for non-payment of the rent and that in this case the property had to be returned immediately to the landlord, the termination will take place automatically once the landlord has requested the tenant by court or public notary at the address designated for that purpose in the registration, urging the payment or the fulfilment , and he had not replied to the request within ten working days, or he  replies  accepting the termination automatically , all of it by the same judge or notary who did the request.

 

The title provided to the register procedure, together with the copy of the request, from which it results the notification and which has not been answered by the request of payment or that has been answered accepting the resolution automatically, will be a sufficient title to get the cancellation of the renting in the Land Registry.

 

If there were later loads that fall on the renting, it will also be necessary for its cancellation to justify the irrefutable notification to the holders of them, in the address appearing in the Registry, and to prove the consignment in his favour before the same notary, of the guarantee deposit given by the tenant.

 

 

Termination of the renting

 

The renting will terminate, as well as by the other causes referred to in this Title, because of the following:

 

a) For the loss of the rented property for reason not attributable to the landlord.

 

b) For the firm statement of ruin agreed by the competent authority.

 

 

 

Previous chapters:

Chapter one

Chapter two

Chapter three

Chapter Four

Chapter Five

 

WHAT COSTALUZ CAN DO FOR YOU?

 

Check our SAFERENT website for the best legal tools when renting in Spain

 

Frigiliana, Málaga, South eastern Spain

 



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Legal tip 1380. Visa for investors in Spain
20 April 2016

Our guide on visas for  investors in Spain

http://www.takelegal.com/media/docs/investors_visas_spain.pdf

Cheers

María

A street in Estepona, Malaga, South eastern Spain



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Legal tip 1379. Banks condemned by recent Court decission on Floor Clauses in Mortgage interests in Spain
20 April 2016

-Arquia Caja de Arquitectos.

-Liberbank (Caja Castilla-La Mancha, Cajastur, Caja de Ahorros de Extremadura y Caja de Ahorros de Santander y Cantabria).

-Banco Popular (Banco de Galicia, Banco Popular Español, Banco Vasconia, Banco Andalucía, Banco Castilla, Banco Crédito Balear, Popular-E, Targobank, Banco Pastor y Banco Popular Hipotecario Español).

-Bankia (Caja Segovia, Caja Insular de Ahorros de Canarias y Caja Rioja).

-Kutxabank (Kutxa y Caja Sur).

-Laboral Kutxa (Ipar Kutxa Rural y Caja Laboral Popular).

-Ibercaja (Caja de Ahorros de la Inmaculada de Aragón, Monte de Piedad y Caja General de Ahorros de Badajoz y Caja de Ahorros y Monte de Piedad del Círculo Católico de Obreros de Burgos).

-Banco Sabadell (Banco Guipozcoano, Banco Gallego, Caixa Penedés, Banco Sabadell Atlántico, Banco de Asturias, Banco Herrero y Banco Urquijo).

-CaixaBank (Caixa Destalvis de Girona, Caja Sol, Caja de Ahorros de Burgos, Caja Guadalajara, La Caixa, Caja General de Ahorros de Canarias, Banco Zaragozano, Caja General de Ahorros de Granada y Barclays España).

-Credifimo.

-Caja de Ahorros y Monde de Piedad de Ontinyent.

-Unicaja Banco (Caja España - Caja Duero  y Unicaja).

-Banco Mare Nostrum (Caja Granada y Caja de Ahorros de Murcia).

-Celeris Servicios Financieros.

-Banca March.

-Banca Pueyo.

-Banco Caminos.

-Bancofar.

-Grupo Caja Rural (Caja Rural Toledo, Caja Rural Zamora y Cajaviva).

-Caja Rural Extremadura.

-Caja Rural del Mediterráneo.

-Caja Rural de Jaén.

-Caja Rural de Bexti.

-Caja Rural de Soria.

-Caja Rural Central.

-Caja Rural de Asturias.

-Caixa Rural Galega.

-Caja Rural de Tenerife-Cajasiete.

-Caja Rural del Sur (Caja Rural del Sur Sociedad Cooperativa de Crédito, Caja Rural de Córdoba y Caja Rural de Sevilla).

-Caja Rural de Teruel.

-Caja Rural San Vicente Ferrer del Vall de Uxó).

-Caixa Rural Casinos.

-Caja Rural de Granada.

-Caja Rural de Navarra.

-Caja Rural de Almendralejo.

-Caixa de Guissona.

-Caja Cantabria.

-Globalcaja (Caja Rural de Albacete, Caja Rural de Ciudad Real, Caja Rural de Cuenca).

-Bantierra (Cajalón, Caixa Advocats y Caja Rural de Huesca).

-Banco del Comercio.

-Banco Etchevarría (perteneciente al grupo Abanca).

A street in Albaicín, Granada, South eastern Spain



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Legal tip 1378. LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST BANKIA IN FORTUNA GOLF, APARTAMENTOS TURISTICOS FORTUNA GOLF RESORT AND APARTAMENTOS TURISTICOS PUEBLO LA SAL BY EUROHOUSE
19 April 2016

LEY 57/1968 WON CASE in FIRST INSTANCE COURT AGAINST BANKIA FOR A GROUP OF OUR CLIENTS WHO PURCHASED OFF-PLAN PROPERTIES FROM THE DEVELOPER PROMOCIONES EUROHOUSE S.L. AT RESIDENCIAL FORTUNA GOLF RESORT, APARTAMENTOS TURISTICOS FORTUNA GOLF RESORT & APARTAMENTOS TURISTICOS PUEBLO LA SAL

We were extremely pleased to inform our clients recently that we had won their case against BANKIA in the First Instance Court.

The clients paid their off-plan deposits to the developer’s account at BANKIA.  The clients did not receive individual Guarantees for their off-plan deposits from the developer, Promociones Eurohouse S.L. or from BANKIA, the Bank to which their off-plan deposit was paid.


Re: YOUR CASE AGAINST BANKIA S.A.
PO: 1155/2012

Please find attached Sentence number 42/2016 from the First Instance Court No.5 in Orihuela.

Your case against BANKIA S.A. has been won.

The final paragraph of the First Instance Sentence delivered on 9 March 2016 and notified on 11 March 2016 states:



“I substantially uphold the Lawsuit filed on behalf of 12 buyers against the financial institution BANKIA S.A., and must condemn the defendant to the repayment of the amount paid on account and entered in the BANKIA account of the developer, amounting to 211,857.98€ and this according to the ratio contained in the second section of the Lawsuit, plus legal interest from the date of payment to the developer’s account in BANKIA.

As for costs they are imposed on the defendant BANKIA S.A.”



So BANKIA is liable to refund the total amount of 211,857.98€ plus legal interest from the date each amount was paid to the Promociones Eurohouse account at BANKIA until full payment to the Court.

Costs of the First Instance procedure are imposed on BANKIA.

The Sentence explains the reasons for the liability of BANKIA 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 BANKIA.

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

“In its Lawsuit the plaintiffs claimed the amounts paid to the Promociones Eurohouse account at Bankia plus interest & costs.

Bankia opposed the Lawsuit claiming that at no time did it participate in the financing of the construction of the housing developments of Promociones Eurohouse, so no liability can be generated against it as a result of the breaches of the developer.  It says that it was absolutely unaware that the payments made into the account were from buyers of off-plan properties as it had no control over the housing developments that the developer was selling.  It states that it had no legal relationship with the developer derived the construction of the houses.

Furthermore Bankia states that it had no obligation to deliver guarantees according to LEY 57/1968 because this obligation is only that of the developer and never of the financial institution.

However, according to jurisprudence it must be concluded that the protection afforded by LEY 57/1968 results from the fact that income occurs in the accounts of the defendant entity regardless of whether or not it was funding the housing construction and regardless of whether the bank account details contained in the sales contract were those of the defendant bank or not”



BANKIA has 20 working days from the date of notification of the Sentence, which was 11 March 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Alicante.

If an Appeal is filed by BANKIA it will be necessary for us to file an Opposition to the Appeal on your behalf.

The beach "La Granadella", Jávea, Alicante, Eastern Spain



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Legal tip 1377. IHT TAX  IN ANDALUCIA. POSTPONEMENT AND FRANCTIONATION PROCEDURE
11 April 2016

 

ISD tax bills in Andalucia can be postponed or fractioned. There are different procedures depending on if the bill is under or over 18000€

Documentation that must accompany the request for postponement and fractionation debts of over 18,000 euros (model 270)

 

1. Joint and several Guarantee of a credit institution, reciprocal guarantee society or Insurance company.

2. If necessary, documents evidencing representation and the place designated for  notification  purposes.

3. Other documents which  justify the existence of economic and financial difficulties

4. Filled in tax form

5. Where appropriate, request of credit compensation for the duration of the rescheduling, in regards to those  credits that can be recognized by them during the same period.

6. If security is not a guarantee from a credit institution, reciprocal guarantee society or insurance company, the following document/s will be necessary:

 

a) Liability statement and documentary proof of the impossibility of obtaining such guarantees and account of managements made to  try to obtain it.

b) Valuation of property offered as collateral made by specialized companies or independent professionals. When there is a register of companies or professionals specialized in the valuation of a particular type of property, the assessment should preferably be made by a company or professional registered in the register.

c) Balance sheet and income statement for the last financial year and audit report, if any, in case of entrepreneurs or professionals who are bound by law to keep accounts.

When a total or partial waiver of the guarantee requisite is requested, this shall be adittionally furnished  with these documents:

1. Liability  statement and documentary proof demonstrating lack of goods  other than those offered as collateral.

2. Documentary evidence of the impossibility of obtaining endorsement of  credit  institution, reciprocal guarantee society or Insurance company and  proof of steps taken for obtaining mutual guarantee.

3. Balance sheet and income statement for the last three years and audit report, if any, in case of entrepreneurs or professionals bound by law to keep accounts.

4. Viability plan and any other information justifying the possibility of meeting  the postponement or fractionation plan.

 

 

FIND here WHAT COSTALUZ CAN DO FOR YOU

 

 

 

A nice view from the Hotel-House "Henrietta", Jimena de la Frontera, Cádiz, South western Spain

 

 



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