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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 Podcast October - Maria de Castro
05 October 2018 @ 19:42

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.

 



Like 1




1 Comments


alant said:
06 October 2018 @ 10:34

No 1. The questioner does not state what system he/she has at the present. If he/she has a pozo filtrante, I understand that that is now not accepted. If he/she has the two tank biological system that is accepted in most cases and it is only in close proximity to water courses that cesspits are required.
I will stand corrected if I am wrong.

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