legal advice spain

Community of Owners and Tennants

Tue, 04 Dec 2007 16:18:47 +0100

The Community of Owners (CO) is obliged to make all the required building works for the due maintenance and conservation of the building and its services, so it will keep the required structural, tightness, habitability and safety conditions.
At the other hand, those owners who oppose or delay the execution of the Authority requirements, will be individually risponsable of the sanctions that may be imposed by the Administration. Therefore, for instance, if the building is about to fall down and the Town Hall requires the reparation, if there is a reticent neighbour and this makes the Community not obey, this neighbour will be liable, individually, of the sanction that may be imposed by the Town Hall.

The improvements in the building.

No owner can demand new inastallations, services or improvements in the building which are not necessary for the needed conservation, habitability and safety of the building (i.e.- To change the front door of the building entrance for a more fashionable one… etc.)
If community decissions for the installation of not necessary things are reached and the instalment to pay them is over 3 ordinary monthly instalments for common expenses, that neighbour who doesn´t agree with them, is not obliged to pay them, and his/her community monthly instalment cannot be increased or changed, even when it is imposible to deprive him/her of the improvement made by the Community.
If the deprivement is posible and later on the dissident neighbour wants to take advantage of the improvements, he will have to pay his instalment on the expenses ralated to the installation and maintenance, dully updated, applying the corresponding legal interest.
Innovations which turn useless any part of the building for any neighbour will always require the express consent of this specific owner.

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Consumer Protection in Spain

Mon, 22 Oct 2007 15:20:43 +0200

This article was supplied by Maria of Costa Luz Lawyers. She can be found at www.daisy-does.com For more information regarding products and services in Spain or relocating, tarvelling and general life style in Spain contact Daisy-Does®

There has been recently passed a Law , ( Law 44/2006) dated on the 29th December of 2006 , for the improvement of the protection of consumers and users. It has specific mention to what are considered abusive clauses in Real Estate purchase contracts. Therefore it is not any more a matter of Court Decisions (subsidiary source of Law in our legal system) but of Law (primary source of Law) It is in force since the 31st of December of 2006.About nullity of abusive clausesProvision 10 bis.1 of Law 44/2006 affirms:“ It will be considered as abusive clauses all those which have not been individually negotiated and all those practices which have not been expressly agreed and that, against the standards of the good faith, produce , to the detriment of the consumer, an important imbalance between rights and obligations of the contract parties (…) “The consequence for abusive clause are the same: null and void ipsoiure, and they will be omitted in the contract and considered as inexistent. The Administration can demand the offender to compensate the consumer.

Regarding abusive clauses when selling houses.A list of specific abusive clauses in the sale of houses: a) The stipulation that forces the consumer to pay the expenses related to the initial legal title of the house ( new work deed , horizontal division deed , mortgages deed for the building or its division or cancellation deed) b) The stipulation that obliges the consumer to assume (subrogate into) the mortgage of the builder/developer or which impose penalties if not assuming that mortgage.c) The stipulation that forces the consumer to pay taxes which chargeable person is the builder-developer.d) The stipulation which obliges the consumer to pay expenses related to the setting of access to general supplies of the house. Houses need to be handed in good habitability conditions. Any clause in purchase contracts containing one of those abusive terms or anything related will be considered as inexistent and therefore unforeseeable by developer/builder.

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Legal Advice Spain

Tue, 16 Oct 2007 15:40:42 +0200

On a daily basis Daisy-Does® recieves hundreds of questions regarding Spanish law specific to foreign imigrants and issues relating to residency and living in Spain. Due to many recent changes in legislation we find it extremely time consuming to answer all questions promptly so we have decided to place some of the topics here so that people can read the information.

The information was provided by Maria at Costa Luz Lawyers
RESALESBuying a resold houseThe private contract Hereby some important aspects of the sales private contract: 1) If you don’t master Spanish sufficiently, ask the owner to provide translation of the contract or look for a translator yourself and pay these services 50-50.2) Date and place of contract.3) Check who is signing on behalf of the selling party: (The most practical and useful thing is to ask the Land Registry for an updated “Nota Simple” of the property to check the current owners and any speciality involved in the ownership. There is an English version of this service at: www.registradores.org). ^* If the transaction is between two individual parties, the document must be signed by all the owners, themselves or through sufficient proxies.* If a house is part of the marital community, the document must be signed by both husband and wife; they both will have to sign too if even not being part of the marital community (being an exclusive good of one of them). So, important to have an specific mention about the civil status of buyer in the headings of the contract. * If the seller gives power of attorney to another person to sign the private contract, the authorised person will have to present the authorised notary copy, it means, the original document signed by the Notary, not just a photocopy, the power of attorney must grant enough power for the sale, so it is very important to check, by reading the power of attorney deed, that the authorised person can sign the sale (these mentions are among the faculties stated in the deed). * If the seller are the heirs of the owner, it is important to make sure that they have got all the dully Inheritance documents in order and they are the only heirs who hold rights on the property. 4) If the hosue was rebuilt or renewed make sure this was done with the required Work License from the Town Hall and that the “ Decalaracion de Obra NUeva” has been made before a Notary and duly registered in the Land Registry. Again, ask for a Nota Simple to do so. Catastro´s descriptive and graphic note is also needed here to see how the Land Registry description of the house is equivalent to Catastro´s and to reality. 5) If you are buying a country house, check on water, phone and electricity providers. If a well is part of the contract, be sure that it has been legalised. If there is a river passing by, be sure that you have irrigation rights properly registered in the proper Confederacion hidrografica. 6) Charges on the house: It is very important to verify which charges exist on the house, and check out if it is free of charges, loans and encumbrances. In order to check that out, again, the most useful instrument is a Nota Simple from the the mortgage can be fully paid before the transaction and be cancelled by the owner or the buyer will have to subrogate that mortgage, which means that he will have to accept it and become the debtor of the remaining debt against the Bank which has granted the mortgage. It is necessary then to know on interests’ rates, recovery time, and commissions and of course the amount still owed. It will be convenient to ask in the bank as the Nota simple doesn’t reflect all these details.7) Community of owners´ shares. If it is a resale house , you need to have information on the situation of the house regarding payments to the Community of Owners. Ask it to the Property Manager/ Administrator or the President of the Community, get copies of the Statutes and internal rules of the building too. 8) Price, deposit and payment method: The contract will specify the price of the house and the payment method. There is no VAT to be paid on resales. You will have to pay the Transfer Tax which is of 7% of the property price.9) There are certain kind of houses which have official value, the Treasure Department of the Autonomous Community has this information, check the Nota Simple to see that your house is not VPO.10) Public deed signing date: Very important to have a determined and clear date for signing the Public deed before a Notary, and if extensions are agreed to clearly stablish the terms of these extensions which need to be always communicated, justified and agreed between the parties. 11) Related expenses: Need to be mentioned and how-who will pay them: - Plusvalía ( a tax over the value rise of the property from one to the next transmisión)
- Notary Deed.
- Registration in Land Registry.
- Transfer taxes If nothing is specifically mentioned or if it is agreed that expenses will be paid “ according to Law” , the seller will pay Plusvalía, and the most of the Notary Deed and the buyer will pay the copies of the Notary deeds, the registration of the Property in the Land Registry and the transfer tax. Never agree, as a buyer, about paying the Plusvalía. 12) Notary choosing: The buyer has a right to free election of Notary. 13) The private contrat is sufficient to link the two parties to what is agreed in the contract clauses but it is not sufficient in order to register the property in the Land Registry or to ask for a mortage. You need a Notary public deed for these two.I will write on Notary deeds in a future article. 14) Cancellation clauses and penalties for delay ( equilibrium) http://www.daisy-does.es/details.html?id=74&search_langauge=1
The contract needs to mention equivalent penalty clauses for delays ( to both parties) which need to be agreed by the contracting parties and not imposed by any of them. It also needs to put the parties in balanced conditions in the event of cancellation of the contrat and stablish equivalent compesation for these cases of cancellation. 15) Agreement on jurisiction or submission to arbitration.

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