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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!

LEGAL PODCASTS WITH MARIA DE CASTRO
06 March 2015 @ 18:17

 

ONE: NEW SPANISH WILL

 

Name: Mrs Jones

Comment: My husband and I own a holiday home in Spain and we have separated. We have a Spanish will that states if either spouse passes away that the remaining spouse will inherit. If both die then our children will inherit. I want to change the Spanish will so that my share upon my death passes to my children.  Can this be done via the post as I live in the UK or can this be done in the UK via a Spanish Solicitor? 

// You can do it just by amending your UK will, your statements regarding the Spanish property there contained will have full effect in regards to your Spanish assets.

If you want to have a Spanish document for making an easier process to you heirs the process, you can do it too. But, always take into account that the Registrar will always check that this will is in full accordance to your Nationality Inheritance Law.

This Spanish will can be done in the UK at the Spanish Embassy. You can even have it made by the corresponding authority in the UK and this will be registered in our Spanish Last Wills registry.

The main point of concern is to grant your Spanish will in full respect on your corresponding Inheritance Law.

For you, UK Nationals, as you have not signed Brussels IV, your Law in nationality Law unless you have residency and only real estate asset in Spain, in which case, by virtue of International Private Law, Spain Inheritance Law will govern your inheritance. 
So, as an additional piece of advice, if this is your only estate asset, I would encourage you to add that you chose UK law as the legislation for your inheritance

 


TWO: PROPERTY BACK TO THE BANK

 

Name: Alfred 

Comment: My Wife and I live in Valencia Province and have had a repayment mortgage on an investment apartment with Solbank for 7-8 years. 
I told the bank that I could not carry on with the full repayment approx. 16 months ago when I tried selling the property without success.
Since September 2013 I have stopped paying any monies off the loan and have instructed a local Spanish solicitor to act on my behalf with Solbank in ¨handing in the Keys´. My wife and I are Spanish residents aged 72 years old and only require to settle this problem to enjoy the rest of our retirement in Spain. What is normal procedure in our circumstances?

Regards

// It is their residency home, so the negotiations with the Bank needs to be based on the law which says that the property cannot be  repossessed by the Bank for less tan 70% auction value. 

This is the main negotiation tool as this auction value was highly inflated during the financial boom years and it is a very big amount compounded by principal, interests and legal costs so, it is very likely that the remaining debt is near the margin of 70% of auction value and therefore the Bank sees the dation as a fully reasonable solution for both parties.

Want to remind that dation is a right in Spain civil code (provision 1175) and that if Bank does not accept it, it has to give a reason for this and the debtor can allocate the property before a Notary for the payment of his debt and be liberated this way.  

 


THREE: TAX VALUE OF PROPERTIES

 

Name: Ian 

Comment: We are buying a villa to renovate for Euro 220,000 in Alicante province while the notaire has showed us that the official minimum value is Euro 320,000 (which is unrealistic in the current climate) so we will certainly be presented with a demand for an extra payment. Please can you advise us whether to: a) leave things as they are and go into appeal when the bill comes, or b) should the notaire (or us) contact the tax people directly to try and reach a compromise?
Thanks in advance for your advice and best regards.

// In my opinion the best way ahead is to leave things as they are and challenge the Tax request when it arrives. With a right argumentation, these claims can be won. In many cases, values defended by the Administration are completely unrealistic, as you well said

 


FOUR: WHERE ARE EMBARGOES PUBLISHED IN SPAIN?

 

Name: Michael 

Comment: How can I find out if my apartment is to be embargoed? I have been forced to live back in the UK due to my Spanish bank accounts being embargoed due to my not paying complementary tax. Also, if the apartment is auctioned, do I receive the balance of money received from the sale after the tax people take what they are owed 


// Spain Land Registry can inform you on the existence of any possible caution note on embargo registered on your property. If you property has no other embargoes, rest of price will be paid to you.

 

 

FIVE: HOW CAN I CHECK IF PURCHASE TAX WAS PAID BY MY LAWYER?

 

Name: Colin

Comment: Got caught up with the els legal scandal and have managed to sort most things.  However,  I am still trying to determine if purchase tax was paid on my property in Spain.  It is registered with the land registry and most other departments.  As you know els disappeared and took all documents with them.

// If the property is registered in the Land Registry to your name, you can assume Transfer Tax was paid as it is a registration requisite.

 


SIX: WHERE TO PAY INHERITANCE TAX RELATED TO SPANISH PROPERTY?


Name: Beth


Comment: My parents have been residents  in Spain, for the last ten years, they have made a Spanish will and have a house in Spain and several properties in the UK. Where will the heirs have to pay inheritance tax, Spain or the UK? The heirs live in Australia.

// Heirs will have to pay IHT in Spain in regards to properties located in Spain. 

 

 

SEVEN: EXPENSES RELATED TO SALE OF A PROPERTY

 

 Name: Jojan


Comment: What expenses can you expect to incur when selling your Spanish property?

// One copy of the Notary deeds
Local PLusvalia Tax
Capital gains before the National Treasure 20% on the profit
If there is a pending mortgage: 1% of pending debt plus registry cancellation costs

 

 

EIGHT:  CAN I CHOOSE WHERE TO PAY CAPITAL GAINS?

 

Name: Bev 


Comment: I want to know about Spain's capital gains tax do you pay more in Spain than in the uk as I need to sell a property . Presently iam resident in spain but could return home if it would be financially better to sell as a English resident.

// Regardless you are Spanish or an English resident, the sale of the property in Spain is taxed by Spain Treasure. Tax rate is 20% on the gain.


From 2015 on, residents in Spain are exempt of capital gains if- as always- they sell their first residency and reinvest in first residency within two years or...) and this is NEW!

You are over 65 years old and:

a) Sell your first residency even if you do not reinvest in first residency again.
b) Sell any real estate asset and invest these funds in a life annuity as a complement of your pension, with a maximum limit of 240.000 Euros

 


NINE: BANK GUARANTEES SUPREME COURT DOCTRINE


Name: Keith 

Comment:  I am one of many caught up in the bank guarantee scandal Has anyone actually received their deposits back plus interest and costs after the Supreme court ruling and will this speed up the pending cases

// Case Law is consolidated. Supreme Court is declaring liabilities of Banks which received off plan amounts in their accounts and did not ensure guarantees for the buyers existed. It is being much remarked the public and non renounceable character of these rights. It is also being declared as a joint liability with developers.

 


TEN: REFUND ON INHERITANCE TAXES PAID BY NON RESIDENTS


Name: Alan 

Comment: I understand that Spain has had to change its inheritance tax rates recently to conform to EU standards. My wife and I inherited a 50% share in an apartment in 2012 and paid the taxes due at that time. Are we now due a tax refund and if so how do we apply for it?


// Yes, as non resident, you do have refund rights on the Inheritance Tax you made in 2012. You need to do it within 4 years time since payment.



Like 1




4 Comments


grumpy121 said:
07 March 2015 @ 10:13

Hi Maria

Regarding Ley 57/68 is it possible to find out how many appeals have been
won and money paid back.
Have banks won any appeals and were these appealed to Supreme Court .....
Is there case law in any cases.
How long does an appeal take to be heard




Tillo2 said:
08 March 2015 @ 21:47

Hi Maria,

I bought my property in 2006. I have now paid it in full.
However, I believe that the property was over valued. Can anything be done at this stage?

Thank you!


Margaret and Charlie said:
21 March 2015 @ 13:57

Hello Maria

When a case goes for Hearing after the Preliminary Hearing and the Judge rules against the Bank on a legal basis, is it the Judge's discretion to allow an appeal or is it the legal right of the Bank involved?

Regards


Margaret and Charlie said:
23 March 2015 @ 10:52

Hello again Maria

We have had our Preliminary Hearing and now go for trial next year, if we get a positive result and have our deposit returned by the Court the Bank will probably appeal this case, does the money awarded go into a Court Account or the Lawyers Account until the Appeal Hearing?

Regards


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