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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 - OCTOBER
09 October 2015 @ 11:16

 

QUESTION NUMER ONE


Comment: My father, a Spaniard, but American citizen passed away 2013.  His sister in Spain recently passed and left the family home to be divided. My mother, his widow, an American citizen was told she cannot claim the inheritance until my father has been dead for four and a half years.  Is this accurate?  . Will she then have to pay inheritance tax?  Why has she been told this is the earliest she can claim? 
If it was your grandparents family home and they were Spaniards, Spain Inheritance Law applies to this succession which reached you in the second level after passing through your dad and aunt.

All inheritances can be claimed in Spain since day after death of the causer/ deceased. The 4 years timeframe is the expiration deadline the administration has to claim for IHT tax.
The reason your mom has been advised not to claim the inheritance till the 4 years have passed is possibly an advice in order to minimize risks of Administration claiming the corresponding IHT.

 

 

QUESTION NUMER TWO

Comment: Our community has a problem resident who does not recognize the elected president or Vice President or community rules. He has been abusive to neighbors; his dog is left to bark for periods day & night. He has caused damage to community property and has 2 denouncements against him. He accuses the president & Vice President of fraud & corruption. He thinks that everything should be done the way he wants it and as it is not he causes at much disruption as possible. We have been to the Guardia who told us to take legal advice. We did this only to be told to report every one of his actions to the Guardia. Surely there is something that can be done to stop this individual making all if our lives a misery.


Dogs that cause nuisance to neighbors by barking are an issue that occurs with some frequency in communities of owners.
The dilemma is whether if the other neighbors may prohibit this. 
Almost all Court Decisions that have addressed this issue argue that barking, discomfort, odors, etc., caused by keeping dogs in a community of owners is a prohibited activity that can be stopped legally.

 
Steps to be followed are:
1.    President of the community, on its own or any of the owners or occupiers initiative, can request the owner of the dog the immediate ceasing of the prohibited acts, failing to initiate court action.
2.    If the offender persists in his conduct, the President, after approval of the general assembly, duly convened for that purpose, can enter into him a judicial action to stop the situation. Precautionary interim measures can be requested to the judge and approved by him after an initial analysis of the case.
3.    The action shall be brought against the owner and, where appropriate, against the occupant of the house or premises.
 
Some Appeal Court decisions backing this:
Valencia Appeal Court January 16th, 2013
Barcelona Appeal Court December 16, 2008
Madrid Appeal Court November 25 2003

 

 

QUESTION NUMER THREE
 

Comment: My partner and I are just about to leave UK to totally live in my house.  I want to put my partner on my mortgage - the mortgage will be paid off completely.  How much will this cost to have his name put on the Mortgage Deeds please?   Also, who do we contact to do this for us?  Kind regards   Sue

As the tendency is for ISD to be minimized more and more and as you will be becoming Spain residents living in that house, my advice, from a tax efficient point of view is to leave the house to your name and write a will by which you leave it to him at your death. It is possible you will not be paying IHT tax then if that becomes your habitual residency. 
 
In regards to the mortgage that he will be contributing to be paid off, you can sign a private acknowledgement of that payment with him.

Once the mortgage is paid off, it is advisable for you to cancel the charge at the Land Registry. 

An EOS post on this: 

http://www.eyeonspain.com/blogs/costaluz/14895/legal-tip-1301-mortgage-free-do-not-forget-to-de-register-your-mortgage-at-the-land-registry.aspx

 

 

QUESTION NUMER FOUR

Comment: I & My Partner Jointly own a property in Spain; we are currently going through a separation process. 

He is about to go off to Spain and I noticed he has taken the property deeds, a photo copy of my old out of date passport and my Birth certificate. I am concerned he may sell the property without my consent. 

Can he easily sell the Spanish property without me being in Spain to agree to the sale? Also could he remove me from the deeds without me being in Spain to agree?

Many Thanks, 

Ann

He will not be able to sell that property through public title to any diligent buyer.

For the Notary to authorize the sale in a public deed and this to be registered at the Land Registry , signatures of both of you or in its case of anyone legitimately representing you, are required to the diligent view and check of the Spanish Notary.

There is always the possibility of a fraud by him, case in which you will of course have all the corresponding civil and criminal actions.

 

 

QUESTION NUMER FIVE

Comment: I own a property in Torremolinos jointly with my brother and sister. I wish to sell my share. Can my siblings refuse to put the property up for sale? There is no mortgage on the property

According to provisions 400 et seq of the Civil Code: “No co-owner is obliged to remain in the community, each of them may at any time divide the common asset”
If the shared property to be divided is indivisible, either because of physical indivisibility or because after the division it would be useless for the purpose for which it is intended; an economic division will be the way to go. Either by (1) one of the co-owners being awarded with full ownership in exchange of payment to rest of owners or (2) the property being sold and price being apportioned among you all, according to your quotas.
Procedure
This division can be performed by you as co-owners, by mediators or arbitrators chosen by you all or through judicial action.
1) By you all, the owners: through a Notary deed for division. Unanimous consent is needed
2) By mediators/arbitrators chosen by you all.
3) Through judicial action which can end in the public auction of the property “actio communi dividundo”
What if the joint ownership being divided has a mortgage? An authorization of lender is required in these cases.

 

 


 



Like 1




3 Comments


Poedoe said:
09 October 2015 @ 11:43

Hi Maria,
Are you able to tell us if the Spanish law has been updated, since 2008 regarding the wrong doings of Builders that have ceased to trade once the buyer completed a purchase of an apartment, they have paid in full for. The Builder is still building under a new company name, and owes the community thousands of euros. for the work that has been done & paid for by the community members.


Kevillie said:
10 October 2015 @ 09:08

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 any more but wondered how we stand legally and could there be a problem for me if I don't pay it.



patalache said:
10 October 2015 @ 15:01

Hi Maria.
Ten years ago we bought a finca near Murcia. The boundaries were explained to us by the vendors, and there is no dispute. However, the escritura is very vague, with things like "bounded on the east by the land of Pablo" etc.
Is it possible to have an escritura legally updated, to include a proper plan of the land?


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