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Legal Questions Podcast With Maria de Castro

Every month, in association with Maria de Castro of Costa Luz Lawyers, we're going to be bringing you a recorded podcast where Maria will be answering your questions relating to Spanish law. Be informed!

New Legal Podcast - Send Us Your Questions!
30 April 2019

Submit your legal questions for our podcast post

CLICK HERE TO SUBMIT QUESTION

 

Do you have any questions regarding Spanish law that you would like to know the answers to?

If you do, please don't hesitate to submit your questions here for Maria de Castro of Costa Luz Lawyers to answer in her next legal questions podcast.

 



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New Legal Podcast - Send Us Your Questions!
02 November 2018

Submit your legal questions for our podcast post

CLICK HERE TO SUBMIT QUESTION

 

Do you have any questions regarding Spanish law that you would like to know the answers to?

If you do, please don't hesitate to submit your questions here for Maria de Castro of Costa Luz Lawyers to answer in her next legal questions podcast.

 



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Legal Podcast October - Maria de Castro
05 October 2018

SEPTEMBER 2018- PODCAST WITH MARIA DE CASTRO

 

This month's podcast will cover 10 legal questions from EOS members. You can listen to the questions and answers here or read them below:

 

 

 

 

ONE: 

Question 

Comment: 10 years ago, we paid 5000€ to our lawyer to complete paperwork for law of Antiquity. Property was passed, surveys completed and new registration done. Now I am told I need an AFO to sell house and the cost will be 20,000€ to include new cesspit. The system with have has worked perfectly for 18 years and is biologically very friendly.


Answer

If the cesspit has been added after the initial legalization of the house 10 years ago and you are now selling it with this new feature, both the buyer and the bank, if a mortgage loan is being granted, need the Land Registry description to match with reality.
For entering the Land Registry, you need a Notary deed called “ Declaracion de Obra Nueva” which is the public title that make that improvement to be legally a part of the sale object
Notary will check on a number of legalities; licenses, authorizations and law requirements, which can be summarized as follows:  

1. - Town Hall License that authorizes the construction or improvement based on a project submitted by the owner and written by an architect or other competent professional.
2. - A technician report
3. - Certificate of habitability or License of 1st occupation: The legislation of certain Autonomous Communities requires a certificate of occupancy to declare the new work and some regions require a Second Occupation License when it is being sold.
 4. - Certificate of energy efficiency of a building: It is a requisite since 2013 and is an official document written by a competent technician that includes objective information on the energy characteristics of a property. It has a maximum validity of 10 years.
5. - Technical inspection of the building: The legislation of some autonomous communities requires that every building that touches the public road and that has certain years of age must pass a technical safety inspection
 
TWO :

Question

Comment: I have been parking my golf buggy for the past 15 years in an unused area in the underground community car park, unchallenged. The area was never marked out as it was deemed to be too small to park a car in. I have just arrived on my visit and the area has been marked out with a bay number on it (all other recognized bays have had numbers associated with owners for the last 15 years.) I have also just received an E mail from the Administrator requesting that I remove the buggy and cease the use of the area. They have said that it is required for the owner of an apartment.
A car could not be parked in the area and does the fact that I have used the area unchallenged for 15 years have any bearing?

Answer

A garage is a legal entity that needs to be created in a legal way. The most common one is that is part of the Horizontal Division of the building when this is built and sold to owners and of course it needs to meet size requirements. Creating a new one requires a full legal process if possible.
I would need to see the title by which that owner has acquired that garage and see if the garage itself exists in the division of the building and how this has been transferred.
Regarding acquiring ownership by not challenged use, this would be possible if that was a legal garage, which seems it is not.
I think that you need to ask the administrator for the title by which the owner has acquired that space and then see if the matter requires voting at an owner´s meeting  
 
THREE :

Question

Comment: Can a Spanish court of law auction off a property without the title deeds to that property?

Answer

Absolutely not, auction is the final step of the mortgage debt enforcement procedure in Spain, which requires, for being started that the bank or the lender brings to Court an authorized copy of the Notary Mortgage deeds accompanied by a registration certificate proving the validity of the mortgage.
 
FOUR :

Question

Comment: My "floor clause" case went to Court in October 2017.I have Heard nothing since. Do you know roughly how long it takes Bank (Popular) to make refunds? What would happen if I did not pay my mortgage repayments, as they are now a lot less than the Bank owes me? Thank you. (I am still paying 5% int)


Answer

Two interesting questions:

Average timeframe for the First Instance Court to decide on a Floor Clause case is of 16 months
Default in mortgage payments: Almost all mortgage loan enforcement procedures are currently frozen in Spain at waiting for the European Court to decide on what a Court needs to do if an executive procedure (which is a fast, short one with few defense possibilities for the debtor) is brought in a case where the anticipated maturity clause is contained in the deeds.
The early expiry clause is a clause that abusively allows the Bank to enforce the whole debt after a small breach by the debtor.
It is very likely that a declarative—long and detailed one with very good possibilities of defense by the debtor--- will be required in these cases, once the European Court issues its decision.
This would imply that Banks will be much open to settle these debts out of Courts. A good analysis of your deeds by an expert lawyer can gain for you a good advantage before the bank in these negotiations whatever is the goal you have in mind.
Yes, mortgage world being reversed in favor of consumers... It is real!
 
FIVE :

Question: 

Comment: My mum passed away just over a year ago and in her Spanish will has left some money to me and 5 other beneficiaries in an investment account Banco Popular.
The Taxes have all been sorted out by a solicitor and now the money is to be distributed. The solicitor is saying that the bank is requiring that each beneficiary MUST open a similar Investment account with them so that the money can be placed into each account. (Even though several of us are resident in the UK and they are asking for each of to provide proof of income and P60's). Surely if all beneficiaries sign to say they are happy for the money to be paid into one specific account this should suffice? Do they have the right to force us to provide private our information  and require us to become customers when we don't wish to?


Answer

When inheriting an investment fund, the only thing that happens is that the fund's shares change ownership and become being registered to the name of the heirs.  From there as an heir you can do whatever you want with your fund: sell it, transfer it or keep it. It's up to you. In my opinion, they are asking for too much information.
 
SIX: 

Question:

Comment: Community question. Can we make a community rule that allows owners to build a room on a terrace at the rear(roadside) and also have another rule that does not allow rooms to be built on a terrace on the inside of the community facing the pool and garden area. We have been told by our admin. Company that we have to take all of them to court, not just the one that built a room poolside.

Answer:

That changes you are proposing requires that the community agrees by unanimous consent that those rooms can just be built at the rear, and they obtain the minor work license from the Town Hall.
 
SEVEN: 

Question

Comment: Our townhouse property has NO 1st License and was built in 2002.  The urbanization is fully completed for some years and just 2k form Puerto Banus.  It already has all the services; lighting, water, electric, roads & rubbish.  My question is what is the status of granting Licenses to these properties in view of the new revised area plan to be submitted at the end of this year?

Answer

I would need to check at the corresponding Local Council before giving to you an accurate appraisal. Since 2012, illegal houses can be legalized in Andalucía if they were finished more than 6 years ago and there are no open ongoing administrative disciplinary or criminal proceedings.
 
EIGHT: 

Question.

My mortgage has a clause by which the bank can repossess the property just after one default in payment of mortgage installment. Is this legal? I have heard there have been recent decisions by Europe on this?

Answer

Despite, there is no still decision by the European Court of Justice, General Attorney Szpunar has recently issue his report on the abusive character of the clause and has stated that any Court deciding on repossession through a fast/ executive procedure where this clause is included, needs to file it. Banks need to start a declarative procedure. Good time for negotiations with the bank.
 
NINE: 

Question

Do I have a right to purchase my credit if this has been sold to a vulture fund?

Answer:

Europe has recently “washed his hands” in this matter as it has answered a question by a Barcelona Court where they asked if it was in accordance with European Union Law and, the commercial practice by which the creditor could sell or assign the credit to a third party without demanding the prior consent of the consumer and without granting him a right of preferential acquisition that would allow him to extinguish the debt for the price of the sale to a vulture fund.
The European Court has put an end to the matter by just saying that the Directive cannot decide on commercial practices but just on abusive clauses. So things, given that the art. 1535 CC only grants a right of withdrawal in respect of litigious claims, that is, those in relation to which the claim has been answered in declaratory proceedings; there is no obligation of the creditor to grant such right to the debtor in the proceedings of execution or of extrajudicial debt transfers.
A declarative procedure is a way to go in these cases. Europe is taking this as a constant rule: to direct matters to declarative procedures where consumer rights can be calmly decided.
 
TEN:

Question:

I have been named heir in my uncle´s inheritance, he is British but died in Spain while having residency there. He had a property in Spain. I am American. What do I need to do?

Answer:

At present, UK is still member of the European Union, so European legislation applies here and specifically Brussels IV in European wills and inheritances.
You need to check if your uncle decided to have Spain (place of his residency) as Law governing his succession or if, on the contrary, he decided nothing and therefore UK law applies.
If UK legislation applies, you will have to follow UK rules to accept that heir ship and be named heir. That declaration is valid in Spain and Spanish assets can be transmitted to you using those UK titles.
If Spain Law applies, you need to follow a probate procedure in Spain which likewise, will be valid in the UK.

 



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Monthly legal podcast - Send us your questions!
21 September 2018

Submit your legal questions for our podcast post

CLICK HERE TO SUBMIT QUESTION

 

Do you have any questions regarding Spanish law that you would like to know the answers to?

If you do, please don't hesitate to submit your questions here for Maria de Castro of Costa Luz Lawyers to answer in her next legal questions podcast.

 



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Legal Podcast - Send in your questions!
02 February 2018

Submit your legal questions for our podcast post

CLICK HERE TO SUBMIT QUESTION

 

Do you have any questions regarding Spanish law that you would like to know the answers to?

If you do, please don't hesitate to submit your questions here for Maria de Castro of Costa Luz Lawyers to answer in her next legal questions podcast.

 



Like 0        Published at 08:28   Comments (4)


Legal Podcast with Maria de Castro - Ask a question
20 January 2017

Submit your legal questions for our podcast post

CLICK HERE TO SUBMIT QUESTION

 

Do you have any questions regarding Spanish law that you would like to know the answers to?

If you do, please don't hesitate to submit your questions here for Maria de Castro of Costa Luz Lawyers to answer in her next legal questions podcast.

 



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Legal podcast with Maria de Castro - Ask a Question
04 March 2016

Submit your legal questions for our podcast post

CLICK HERE TO SUBMIT QUESTION

 

Do you have any questions regarding Spanish law that you would like to know the answers to?

If you do, please don't hesitate to submit your questions here for Maria de Castro of Costa Luz Lawyers to answer in her next legal questions podcast.

 



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Legal Podcast with Maria de Castro - February
17 February 2016

QUESTION NUMBER ONE

Name: Fergus

Comment: Hi maria

We bought an apartment in Elvira Medina in Spain in 2010. We received license of occupation and furnished the apartment. Just after this the developer went bankrupt and the block was left idle. Only 4 apartments had been purchased at this stage. The bank took over control of the rest of the apartments. The apartments were then burgled and nearly everything is the apartments was removed doors windows etc. we then found out that the license of occupation should never have been granted and the council and mayor are due in court on corruption and planning law offences. We are still paying a mortgage for a shell of an apartment with not one item in it. 
What are our options? 

Other blocks are taking the council to the courts but our situation is that with only 4 apartments purchased and the rest owned by the banks we seem to be in a bad situation.


ANSWER:

If the license has been revoked, you can: 

(1) Claim against the Bank for the refund of amounts paid prior to completion

(2) Act against developer and bank for nullity and refund of all amounts paid after completion. There is Case Law for defending this.


Of course these actions course with the refund of interests and legal costs.

Another possibility is to give the property back to the Bank


QUESTION NUMBER TWO

Name: Margaret 

Comment: Hello Maria We have our First Instance Hearing coming up in Almeria January 2016.  If we have a successful outcome and are awarded interest will the interest be calculated from the date we put down our deposit or from the time we filed the lawsuit against the Bank?  Is there any official ruling on this as we have noticed that some Courts (or judges) differ on this point?  Some award interest on the day the deposit was accepted by the Bank and some are only giving interest on the day the lawsuit was filed. Is it just a lottery who you get?

ANSWER:

It is not a lottery; it’s clearly covered in Law when treating cancellation of contracts. Interests are always attached and there is no legal reason for interpreting the refund of interests has to be from filling of lawsuit.

If the Court declares the contract cancelled, interests need to be paid from the date you made your payments. It is true some Courts are passing decisions where interests are awarded just from date of lawsuit but this can be challenged at appeal.

There is still not Supreme Court pronouncement on this. Hopefully soon.

 

QUESTION NUMBER THREE

Name: Maryelaine 

Comment: Hello Maria. My son has a house he cannot sell the mortgage balance is too high. Can I take it over from him by adding my name to the escritura as he can no longer pay the mortgage or buy from him without paying the normal taxes as I am his mother?

ANSWER:

Of course you can buy the property from your son but that will always be considered an acquisition, not a gift as you are assuming the mortgage.

1) For the ownership and mortgage novation (change of holder) you need acceptance by the Bank. 
2) If bank accepted, this would be taxed as any transmission; regardless you are a family member.
A good remedy if he cannot keep those mortgage payments is to act rights of dation (property back to the bank).

 


QUESTION NUMBER FOUR

Name: Paul 
Comment: My wife and I have just purchased a house in Duquesa, Manilva which we will use for holidays and extended stays of less than 180 days so the UK will always be our main residence.  Do we need a separate Spanish Will? 
We are 60yrs old and have a UK Will which leaves everything to the surviving Spouse or in the event of us both dying at the same time then everything evenly divided between our Son and Daughter.

ANSWER:

You do not need it. It is useful for an easier process for your heirs.
That will apply in Spain. Again, just for making things easier to heirs, the Spanish will is necessary.


QUESTION NUMBER FIVE

Name: Sharon Martin
Comment: Hello Maria. I have found that your articles on living in Spain and tax very helpful, but I have a question regarding property tax.  I own an apartment in Fuerteventura and have been told I need to pay property tax.  I have owned the property since Feb 2011. The property cost was 117,000 euros it seems from documents I have that the Cadastral Value is 21, 420, 59 would you have any idea what tax I need to pay and where I would pay this?

Thank you in advance


ANSWER:

Dear Sharon: Thanks for the compliment. Yes if you are non-resident property owner you need to pay: Non resident Income Tax (I.R.P.F.) This tax is around 0.15% of the value of the property, and is paid annually, corresponding to the former natural calendar year. So if your property has a cadastral value of 100,000 Euros, then the payable amount would be about 150 Euros each year. Local tax on real estate (I.B.I.) This is a direct tax based on the value of the house. It is known as LOCAL RATES, COUNCIL TAX or IBI. Each Town Council determines the percentage to be applied to the cadaster value of the property. Every year the value of the tax is increased by applying the percentage given by the Government in the Nation Budget act. There is the possibility of setting up a direct debit.

 

QUESTION NUMBER SIX

Name: Gail
Comment: Hello, we are UK residents who have a holiday home in Spain on which the mortgage is now paid up. We have the certificate from the Bank to show this but I have been told two very different things. One is that we can either leave it until we sell the property in a year or two and this will be dealt with at the same time for hardly any extra cost or we MUST get the charge taken off the deed immediately? Which is the correct advice? I don't really want to pay out all this money to de-register if it's not necessary and can be done at the same time when we sell it?

Thanks in advance for any help with this.....


ANSWER:

Dear Gail: If you do not need the house to be officially showed as free-debt till it is sold in a while, there is no need to do managements to deregister the mortgage charge now.


QUESTION NUMBER SEVEN

Name: John Evans
Comment: Dear Maria,
As we are non-residents living in Spain do we have to have a new will made to add a codicil to our wills? This is regarding the legal side that we wish our wills to be covered by UK laws. Law in Spain now! Our local Lawyer here on the Costa del Sol says it cannot be done you have to pay for a completely new will to be made. I have read somewhere that we can go to a Notary and pay a fraction to have a Codicil added to our wills.


ANSWER:

Dear John: Validity of those codicils in Spanish Civil Law is controversial and will very probably bring problems to your future heirs, so my advice is to grant a new will.


QUESTION NUMBER EIGHT

Name: Ivan R.
Comment: We have our property on the market to sell and we have applied for our first occupancy license. But I am informed that I may not need this as we already have Electric and water contracts the Villa is now 11 years old could you please tell me is it necessary  

ANSWER:
Notary will need to check on First Occupation license before the transmission is made. You do need it.

 

QUESTION NUMBER NINE

Name: Nico
Comment: How does a finca owner gain control of who is allowed to hunt on his land when his finca is part of a  larger Coto De Caza Privado?
And who is the Jefe De Coto?
Is it possible to stop all hunting on such a   finca?


ANSWER:

As a full owner of the plot, you have full rights to decide the use to be given to the same. You need to start with a formal communication to rest of owners of properties forming the COTO and if an amicable solution is not achieved; you can start a judicial action.


QUESTION NUMBER TEN

Name: Miller  D.

Comment: How can I find out if a Spanish lawyer is properly registered?

ANSWER
Checking on the Bar association corresponding to the province where he/she is located.

 

QUESTION NUMBER ELEVEN

Name: Kelly

Comment: In our AGM meeting it was agreed a security hut would be built costing around 8000 euro. We have just had a bill asking for more money as the build is now up to 20000 euros do I have to pay. The work has already been done and no one was informed.

ANSWER:

You are just obliged to pay on basis of what it was agreed in the Community of Owners. It is necessary to know why the work has been more expensive, whom, if anyone authorized the building company for this and agree on a solution ahead. You need to convoke an Extraordinary General Meeting for this.



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Legal podcast with Maria de Castro - Ask a Question
20 November 2015

Submit your legal questions for our podcast post

CLICK HERE TO SUBMIT QUESTION

 

Do you have any questions regarding Spanish law that you would like to know the answers to?

If you do, please don't hesitate to submit your questions here for Maria de Castro of Costa Luz Lawyers to answer in her next legal questions podcast.

 



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Legal Podcast with Maria de Castro
06 November 2015

QUESTION NUMBER ONE

Comment: Hi Maria

When we bought our house in Spain we had to have a life insurance policy to cover our mortgage. We did not have a choice in this so we took it out with Mapfre. 

We just sold the house so I cancelled the insurance premium as we no longer have a mortgage and it is 157 euros per month so quite a substantial amount. 

I have been informed by the agent from Mapfre that I cannot cancel the policy until June 2016 which is the anniversary of when we took it out and we have to give 3 months’ notice! Surely this is not fair - I wrote to them to inform them I was cancelling the insurance last week and to cancel the direct debit (which has now been refunded by the bank). 

I am tempted not to pay this anymore but wondered how we stand legally and could there be a problem for me if I don't pay it.

ANSWER:

I would communicate to Mapfre your right on stopping the monthly payment of the life insurance in written and would stop paying right after that.

You right to cancel the Insurance before the end of the annual period is because there I no risk to be covered anymore. This situation is allowed by the Insurance Contract Act.

The fact that you have now sold the house makes the risk inexistent.

 

QUESTION NUMBER TWO


Comment: If there are 2 wills which would be recognized under Spanish law?  The older one in Spain leaves Spanish property to the daughter.  The newer one in the UK States "whatsoever and where so ever " leaves to the wife.

ANSWER:
Last one in the UK applies if it was granted respecting the applicable Inheritance Law. Applicable inheritance law is that of the Nationality of the deceased unless if residing in Spain, the deceased granted a will choosing Spain Law as the applicable Law. Hope this clarifies Kindest, María

 


QUESTION NUMBER THREE


Comment: My two adult sons are on the deeds for my Spanish Apartment. Because the apartment is mortgaged what happens if one of my son's dies? Does his wife have the responsibility of paying that share of the mortgage? 

ANSWER
I assume that when you say they are on the deeds, you mean they are owners and also mortgage debtors.
From the marriage legal regime perspective
It depends on when they bought the apartment (if before or after marriage), and what legal regime they have.
Just it apartment was bought after marriage and they have common goods regime, the widow will be liable of keeping payments of mortgage up
From inheritance law perspective 
If your son name her as her heir she will have, by title of inheritance the obligation of paying the mortgage.


 

QUESTION NUMBER FOUR

Comment: What are the laws relating to siblings inheriting property on death please? If my only daughter and my partners´ three sons were to inherit our jointly owned house at our deaths how that would be divided please? 
50 % and three thirds of the remaining 50 %?


ANSWER

I take you are talking about a Spanish house and that you are UK nationals. If you both grant a will according to your National Law, portions established there will apply. 
If Spanish law applies--- because you chose them under Brussels IV or UK law forward your inheritance to Spain---- you need to respect rules of forced heirs each of you. Yours will be your sons and hers her own ones.
Rules of distribution among forced heirs are as follows:
Spouse – The usufruct of 1/3 of the late spouse’s assets.

Children – Will automatically receive 2/3 of the deceased parent’s estate in Spain. This legacy will be divided into equal shares among all the siblings. If any of the deceased’s children died before him/her, then inheritor’s share will be granted to the deceased’s grandchildren. 
Should there not be grandchildren of the deceased son or daughter, his/her siblings’ inheritance will be incremented proportionally.  They will share with spouse ownership rights on the 1/3 left, which usufruct, as said, is for the widow/er.

Parents – Will be the heirs of the entire estate in Spain if there were no children or grandchildren.

 

QUESTION NUMBER FIVE

Comment: Hi there, my mother and father own an apartment in Tenerife, and sadly my dad was diagnosed with dementia in January 2015. His illness has progressed very rapidly and my mother who is also in her seventies can no longer cope alone. They are relocating urgently to be near me in England but as my Dad will undoubtedly need full nursing care, can the UK authorities make my mum and dad sell their property to fund dads care?    This is their only home and my mother would hope to return to Tenerife at some point in the future.

ANSWER
In Spain, your worldwide assets back your debts. There are rules for household protection as the individual bankruptcy one. I guess it is the same in the UK.
Depending on how strong the lender is against enforcement against worldwide assets in the UK, level of debt… the risk exists or not obviously.
 If the Spanish property has a mortgage on it, no posterior debtor can repossess the property before the Bank.


 

QUESTION NUMBER SIX

Comment: I bought my Spanish apartment 3 years ago ,i have just come over on holiday and in my post box i have a suma bill for 1600 euros ,my solicitor says he will sort it ,we have found out that our seller has not paid the taxes on sale of property, and now the bill has  been put in my name as owner of property ,can that be as bill to be paid by end of October .

ANSWER:

This type of problem originates at the signing of the Notary Public Deed so it is important the advice that we received at that time. 
Spanish law, in order to protect the incomes of Town Councils, includes a guarantee that entitles municipalities to collect this tax from previous years from the new owner with the consequent economic damage to it. This warranty is called "afección real" (charge of the real estate)
Because of this Law, Notaries must obtain information on the IBI debt status of the property and also warn the new owner at the time of the sale that any outstanding IBI debt is attached to the property he is buying.
The buyer on his part needs to request this info when buying his house. If this information was not provided to the buyer or he declares that he knows and acknowledges the situation for not to delay the sale, then we might face a problem

This obligation has of course a limit:
 The City is entitled to collect the unpaid bills of the calendar year in which house purchase happens and the one immediate before. 
A request by the Town Council beyond that can be challenged 
Some points of defense below:
1. 4 years prescription
2. Follow of the correct recovery procedure, both in voluntary as in enforcement periods up to the declaration of fail of the principal debtor.
3. Challenge a possible wrong liquidation

 



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