El blog de Maria

Philosophy, human resources and  balanced management are the matters which capture the most inner of my personal and proffessional heart.

Life requires from me right now to practise Real Estate Consumers Law for english speaking clients in Spain, and I adore the human, social-renovation, pro-person, avant-garde characters of the fight which you discover as you go more and more genuinely into ordinary people´s need and expectations..... but again... what I really like is philosophy.

I was reading today this article post on Legal Today by Dominguez and Guiu, I am extracting the sentences which brought food to my heart and my mind today. I do hope you will enjoy them too:

"To have internalized proffessional values and to live a proffessional life with integrity is more important that the formalism of swearing or promising them the day of the oath of allegiance".

"This is just achieved if partners ( meaning partners of a Law Firm) are humble, conscious of their obligation for improvement, have the adequate proffesionals and count with the determination and convicction to achieve the improvements "

"When a Law Firm has a solid brand id because it has been able to gain the trust of the market and attract the type of clients it once decided it wanted to attract . Brand is a proffesional life insurance"

It is true that when a proffessional has solid internal values to give expression to, the concerns about how to manage, how to delegate, how to deal with clients, how to strength the team, how to distribute benefits, how to schedule... decreases in a great sense and everything gather an inner coherency which gives an unstoppable strength to proffessional life. This is then forwarded to the life of the company.

In my opinion, this is the only real solution to company crisis and .... financial crisis too.

So the real battle needs to be in the area of proffessional values, commitment and coherence.

Anyhow, I go back to the legal matters! Hope you all have a good day!

Maria

"Atlanterra and Barbate at the end and Vejer de la Frontera on the top of the mountain", by Luis Lopez-cortijo.

The presence of a foreign testator trying to grant a will for the sorting of his or her estate according to his personal law, it is increasingly common within Lawyers offices in Spain. At least regarding the real estate owned in this country.

In the absence of will, the heirs notarized statement regarding  a foreign deceasor also has a growing importance for the current, ever growing, presence of foreign property owners in Spain, where they have, in many cases, their second home. Therefore there is a growing increase of international succession which involves the Spanish legislation.

The lex fori, which determines, by virtue of provision 9.8 of the Spanish Civil Code, the applicable law is the personal law of the deceased., that corresponding to  his/her nationality. The phenomenon of inheritance or succession is always subject to the law of the nationality of the deceased, unless the rules of conflict of the personal Law of the deceased forwarded the case to be solved by the Spanish law, this is the only case where foreign forwarding rules is accepted by the Spanish rules of private international law (art. 12.2 of the Civil Code).

However, this forwarding should not be accepted in matters of succession upon death if this would lead to a "legal division of the succession" which would be this way regulated by several laws.

 
In the case of UK citizens and by applying: 

The deceased left only property in Spain but his legal domicilie was in the UK. Spanish law applies to the entire estate of the deceased.

When the deceased had property in Spain and his legal domicile  was in Spain. The Spanish court applied Spanish law the entire estate of the deceased.

When the deceased had property in UK and only personalty in Spain and his legal domicilie is in England. The Spanish court would apply English law.

When the deceased had property in England and Spain and had his last legal domicile is in England. English law would apply.

By Jesús and María L. de Castro

www.costaluzlawyers.es

"Vista de Atlanterra y playa de Zahara de los Atunes", by Luis Lopez-Cortijo.

Murcia Appeal Court, Court decisión dated 24/09/2009, No. 202/2009, rec. 207/2009. Presenter Judge: Larrosa Amante , Miguel Angel


1) "The contract is ambiguous on behalf of the appellant who was who wrote it, so this ambiguity can not harm the consumer"

2) "It is known the Case Law which requires, for the granting of cancellation that the breach of one party  frustrates the purpose of the contract for the buyer and also makes it necessary that, in order to bring an action for cancellation, that the applicant has complied with all obligations under the contract. "( Our commentary:  This modern Case Law  stream, does not put the criterium for the determination of the cancellatory breach on a rebellious and hindering behavior of the buyer, as it  is for the old doctrines but, according to the principles of Consumer Law set the clue on the frustration of the purpose of the contract for the buyer and the fact that it has fulfilled its obligations)

3) "The failure is so obvious that it is not understood very well that the appellant insist on the lack of breach, unless it is considered that the fixing of the date of delivery is a unilateral right of the developer  that buyers have to submit necessarily and without any kind of question, consideration that  would not be covered by any legal regulation and which would be against provision 1256 of the Civil Code (see provision on foot page). The delivery date is an essential element of the purchase agreement and as such can not be left to the arbitrium of one of the parties. The fact that there were delays associated with building permit problems is no excuse in any way that can justify the delay, because such administrative problems are attributable only to the seller without intervention by the buyers. As a conclusion, there are grounds for cancellation, due to the breach of the completion deadline and the need of buyers for such housing earlier on time, not being, on a different sort of things, a  simple delay of a few days or weeks, but a delay extended in time and that defeats the purpose of the contract."

Cheers to Mr. Larrosa Amante!

Urban conservation entities are public entities, of compulsory formation and own legal personality and capacity to fulfill its purpose, since its entry in the Register of Town Planning Collaborating Entities. 

They arise as a consequence of the duty of maintenance of infrastructure works, including maintenance of the allocations and public services, once these have been taken over by the municipality. 

This duty of maintenance can correspond to the Local Council or to the owners of plots in the execution unit sector which is subject of those works of urbanization. 

When the obligation corresponds to owners, they must be grouped in Urban Maintenance Entity, and thus its affiliation is mandatory. 

In Andalucia region, Article 153.3 of Law 7 / 2002, on Town Planning in Andalucia, determines that the maintenance of infrastructure works is for the owners of plots, grouped legally in Urban Maintenance Entities in the following cases: 

A) When voluntarily assumed by any method. 
B) When the plots are within execution units or areas identified for this purpose only, if so provided by urban planning. 

Same provision states that urban conservation entities are subject to the supervision of the municipality and may request and obtain from it the application of  public enforcement procedures for the requirement of appropriate conservation fees to be paid by the owners.

 Quota fees of owners for the maintenance costs will be determined as follows: 

A) According to what is established by the statutes of the Urban Conservation Authority. 
B) Alternatively, according to what is established by the system for implementing the corresponding execution unit. 
C) As a last resort, according to what is allocated under horizontal property law rules. 

Owners may be individuals, companies or administrative bodies. The Local Council, as owner of some land is a landowner, and as such, has to participate proportionately in the costs. 

The acquisition of ownership rights on land within the Conservation Entity determines the membership of this, involves the purchaser in the subrogation of rights and obligations attached to it, (art. 28 RD 3288/1978 25 August, Urban Management). 

In this regard, Article 1.1 of Royal Decree 1093/97 of 4^th of July on entries in the Land Registry of Planning acts includes, within those firm acts which are recordable in the Register, those related to maintenance or urban infraestructures.

Maria

www.costaluzlawyers.es 

"Silla del papa", Bolonia, Tarifa (Cadiz); by Chodaboy, at flickr.com

Spanish and foreign citizens have the right to marry in Spain, regardless of the legal status of the foreign citizen. It is possible, therefore, to marry an ilegal foreign or a foreign on tourist visa.

The peculiarity in the case of mixed marriages (Spanish-Foreign) is the need to handle a prior procedure record before the wedding celebration. This process is mandatory and is done in the civil registry of the judicial district of residence of any of the parties and aims to determine if both bride and groom are able to marry and check on no deffects of the marriage vows.

So, once this initial procedure is concluded, the judge in charge of the Civil Regsitry will authorize the conclusion of the wedding and once the same, both will become "married under the Spanish civil law", deriving from that time a number of legal consequences of various forms, among which, with its special importance, the benefits of the legislation on immigration for the spouse of a Spanish citizen.

These preliminary procedure is mandatory and must be initiated by filing a series of documents. Each Registrar has its special way of dealing with this issue but as a general rule these documents are required:

By the foreign citizen.

1. Literal birth certificate. Legalized and translated where necessary.
2. Certificate of singleness or, in the case of being divorced, certificate of marriage recording the testimony of divorce or divorce decree. Legalized and translated where necessary.
3. Certificate issued by the Consulate of the country of origin of foreign citizens in Spain which shows the capacity to marry (some Registries do not require it).
4. Certificate issued by the Consulate of the country of origin of foreign citizens in Spain on the need for publication of banns.
5. Consular Registration Certificate issued by the Consulate of the country of origin of the foreign citizen in Spain.
6. Passport or Foreign Identification Number.
7. Certificate of registration in the local census.


By the Spanish citizen.1. Literal birth Certificate .
2. Local Census Registration certificate of the last two years .
3. Passport or National Identification Document (DNI)
4. Life and civil status certificate.
5. In case it is divorced, divorce decree or marriage certificate attested by a marginal entry of divorce.


Regarding the obtention of foreign documents, it must be taken into account:

1. Foreign documents must be properly authenticated, either through:

a) Normal legalization (seal of the issuer of the document, seal of the ministry of foreign affairs of the foreign country, seal of the Embassy of Spain in the foreign country and stamp of the Legalisation Department of the Spanish Foreign Ministry)

b) The Hague Apostille.

c) Some registries allow consular legalization (only the seal of Spain's consulate or embassy or consulate or embassy of the country of origin in Spain).

2. Foreign documents in foreign languages must be translated by an official translator. If the translation is done abroad, it must be authenticated together with the original document.

With respect to documents of the Spanish citizen, it should be noted that the certificate of Local census registration must contain the date of discharge in the register. If within the two years prior to marriage, there are several places of residence. this must be justified with the corresponding certificates of registration for each place of residence.

Once documents have been collected , the couple should contact the Civil Registry of their judicial jurisdiction and submit the file. There, the partners will fill in jury declarations and data sheet and the file will be admitted into procedure. At that time (usually) it will be assigned an appointment for the holding of a reserved hearing. It will also be assigned an appointment for witnesses to appear in order to answer some simple questions about their relationship.

The reserved hearing is one of the most important steps of the mixed marriage record as it is the principal means by which the person in charge of the Civil Registry will determine the existence of vice in the marriage agreement. The reserved hearing will take place for spouses to answer few questions to determine if they really are dating and want to marry in order to raise a family. If the purpose of marriage is not this, marriage can be declared invalid for lack of marital consent. Do not worry excessively about the reserved as bride and groom often pass it without problems.

During the proceedings, edicts will be published in case it is required. For Spanish citizens, these edicts will be posted on the notice board of justice´s Court or Civil Registry of the place or residence of the last two years (unless the town has more than 25,000 inhabitants).

Publication of Edicts for foreign citizens shall be determined by its internal rules to be certified by a certificate from the consulate in Spain.

Once the Edicts are pubished , the case will go to the Prosecutor, who will check it and will state what it is deemed as appropriate through a report. If there is no problem, this will issue an order for the approval of marriage, its notification and will set the wedding date.

Wedding can take place in a different municipality to that of the processing of the application.

Once the wedding is held, they will be given the family book and a literal certificate of marriage.

From that moment, the foreign spouse becomes an EU citizen family member and therefore entitled to residence in Spain in the Community scheme.

In order to apply for this reesidence, they will just have to go to the Immigration Office of their province and submit the following documents:

1. Application form. EX016.
2. Passport.
3. 3 photos.
4. Spanish spouse ID.
5. Marriage certificate.
6. Local Census certificate of registration of both spouses.
7. Social security card of the Spanish spouse.

In about two months, they will receive a resolution granting the residence of the EU citizen's family member. This residence has a duration of five years and allows the performance of work activity as either self-employed or employed person.

By Jesus and Maria L de Castro

Playa de Bolonia, Cadiz; by Chodaboy, at flickr.com

www.costaluzlawyers.es

New Won Cases section of our website has been updated today! Please click here

Cheers!

Have a great weekend!

Maria

"Mirando atras", playa de Los Lances, Tarifa (Cadiz); by Chodaboy, at flickr.com

By Maria L. de Castro

www.costaluzlawyers.es

 I received this article yesterday by IESE Insight and wanted to share it with you.

Saving Spanish Tourism Before It’s Too Late

Argandoña Rámiz, Antonio

Original document: Corporate Social Responsibility in the Tourism Industry. Some Lessons from the Spanish Experience

 This report was sent to me yesterday by IESE Insight. I wanted to share it with you.

Road to Recovery Requires Rebuilding Trust

Vives Torrents, Xavier; European Economics Advisory Group (EEAG)

Publisher: CESifo

Original document: The EEAG Report on the European Economy 2010

Year: 2010

Language: English

 

This issue has been treated before in this blog and I have my particualr opinion that a full no win-no fee is impossible and even unfair towards the lawyer who needs to bear with work and study efforts, staff expenses, office maintenance...

But let me show you again today the " status quo" on the legal character of the "no win-no fee" agreement for Spanish Lawyers.

In 2002 the Court for Fair Competition (TDC) sanctioned with a fine of 180,000 euros to the Spanish Law Society and ordered to amend the prohibition established in its Code of Ethics for lawyers for these professionals to “freely” establish with their customers the prices for their services. The TDC was thus giving the reason to the lawyer José Luis Mazon, who considered that the ban on so-called "contingency fees" or “no win, no fee”  was against free competition. Mazon had filed a complaint against the Law Society for a conduct "allegedly prohibited" by the Law on Competition. 

The Supreme Court, in November 2008, stated that the prohibition of the “no win, no fee” " is diametrically opposed to the provisions of Article 1.1.a) of the Law on Competition which prohibits direct or indirect fixing of prices as well as other commercial or service conditions." So the Supreme Court declared in 2008 that the no win-no fee agreement is legal for lawyers in Spain.

For those cases of our specialisation, where study for one benefits all the other cases ( Real Estate Consumers Law), we can offer our clients what we consider fair to the two parties: lawyer and client: a partial no win-no fee agreement. This way we charge an intial provision of funds and nothing else is charged to the client till the result is achieved.

I do think that (1) the possibility of legal online services, which is being consolidated by both the coming new rules for lawyers in Spain by the Law Society,  and (2) the fact that we can work nationwide, is driving the proffesion to definite specialisation.

And I do think that specialisation is good for the development and accuracy of the legal system. We lawyers are legal solutions providers.

Also.. specialisation and nationwide pratises open the possibilities for more reasonable feeing. That´s is exactly why we can offer the partial no win, no fee.

Anyways... it is a very much a controversial matter.

Best regards,

Maria

"Duna", Beach of Valdevaqueros - Tarifa (Cadiz); by Chodaboy, at flickr.com

 My best legal  tip of today, out of 103 emails being answered since 8:00 am:

Developer under insolvency proceedings:

a) You have a Bank Guarantee: go and execute it if completion/starting deadline has not been met by developer

b) You do not have a Bank Guarantee: Start action 1.2 of Law 57/68

Playas de Tarifa (Cáby Chodaboy, at flickr.com

Specifically tailored for executives who have little time available to dedicate to areas such as grammar and actual practice of the language, the course has been designed to encourage people to overcome their fear of speaking in English and to enable them to be capable of following a conversation on any topic, to understand a telephone conversation in any kind of accent and, most importantly, to understand and recognize the differences that exist between set phrases, in English and Spanish.

For all intents and purposes, it is still a language academy, a training centre.

There are some abandoned towns in Spain ready to be bought. For more information on these, please click here.

Of course what it is actually bought are the different properties ( rustic and urban) located within the town. Then someone or a legal entity ( fundation, association, company, community of owners) will be required for the commun maintenance and exploitation of the village if this is used as a learning space. This entity or person would be the owner of the business.

The owner of the business must have a varied and qualified staff, teachers specialized in English language, graduates in English and native speakers for the various tasks and activities which take place in the village.

The setting up of the centre and its development is subject to authorization from the authorities and the granting of environmental licenses.

The village (business), as well as offering all the services of a communal village, must offer an information and orientation service for the students so that they are aware of the course details and who are there to solve any problems or answer any queries that the students may have.

As general features, it must have a company name and an individual or company responsible for the facilities. An SL would initially suffice. For information o how to form an Sl, please click on here.

It will also have the necessary procedures in place for dealing with enquiries and complaints.  It will detail all the courses on offer in its facilities, the rules and regulations, provide tutor lists as well as the contractual conditions of the products offered.

In accordance with Spanish law, the company will do a strict risk prevention assessment.  “Prevention, meaning all the methods adopted or put in place in all areas of the business in order to avoid or reduce work-related risks”.

The adaptation, design, building characteristics of the areas of work and teaching areas should provide total safety from all type of eventuality.

In short, to launch a business for teaching English , immersed in context and with the particular characteristics of a small Spanish village, the village must be adapted just as we would adapt a building or premises, with its particular characteristics and within the geographic and architectural dimension of the chosen village.

By Jesus Castro and María L. de Castro

www.costaluzlawyers.es

Vistas restaurante El Tesoro, Tarifa (Cadiz);by Chodaboy, at flickr.com

While others are now announcing themselves as specialists on contract cancellation and battles against developers and banks in Spain, we have been doing it for more than four years ( since March 2006),  even before the credit crunch started. As a result,we have now a broad variety of different legal actions to protect the most un-protected ones against developers and Banks.

While others are reducing their conveyancing departments and forwarding staff to litigation services now, we have a consolidated litigation team and are currently making improvements in our  resources so we can offer to you a personalised, fun, efficient and modern Conveyancing and Company Formation service. We are able to be there, at the next step: that is a sign of company´s health.

What a bunch of extraordinary proffessional people I am lucky to have around! Thanks team!  They are by nature upstream swimmers ... cannot help it!  They are before the times. I am so proud to have them with me.

Thanks to you all!

Maria

Playa de Los Lances, Tarifa (Cadiz); by Chodaboy, at flickr.com

The Ministries of Justice and Industry will develop Ius + Red ( Law+Network) Program

The program will lay the foundations for technological development under the Strategic Plan for the Modernization of Justice 2009-2012.

This agreement provides for the possibility that the regions with authority for Justice can  subscribe cooperation agreements to co-finance activities in the procedural field and regarding interoperability and distribution.

Also, the National Government will fund the actions arising from this agreement to be implemented in those regions without authority in Justice.

In addition, it seeks to join forces and move forward on a consensual basis and throughout the whole country, towards a model of  agile and technologically advanced judicial administration which will provide further and more effective services to the citizenship.

I do bet for a technologically advanced Justice in my country, I am sure we will very soon be there. Your claims on this have been necessary and are necesary... keep them coming.

 (Diario Juridico, 20/04/2010)

Isla de Tarifa (Cadiz) y gruas del Puerto de Tanger (Marrocco) al fondo; by Chodaboy, at fickr.com

The Law society seems to be at its most intense discussion of recent years. Take the opportunity to send suggestions and claims: I am sure they have heard all we have sent before specially regarding lawyers independency and conflicts of interests. 

Buyers of Martinsa-Fadesa who have not received their houses due to delays and failures of the construction will have priority over other creditors in the recovery of amounts paid in advanced in off-plan purchases. This will be effective even if the amounts are not backed by Bank Guarantee or Insurance Policies.  Martinsa entered into creditor´s meeting in July 2008.

This follows a ruling by the Commercial Court No. 1 of La Coruña, which requests the receivers to exclude a home buyer from the list of creditors of the insolvency proceedings (which are the ones who suffer the consequences of insolvency protection and are subject to composition with creditors).

Thus, the savings invested may be recovered against the assets of the company if the purchase contract is cancelled due to default of the developer, since only this way, this payment can be considered as credits against Martinsa-Fadesa.

The claims against the assets are the first ones to be paid in a payment plan or in a liquidation process, ahead of privileged claims (such as those holding by the Treasure Department and Social Security) and the ordinary, where generally are included the most of the creditors.

By Maria L. de Castro

www.costaluzlawyers.es

Playa de Bolonia ( Cadiz) by Campanilla at Flickr.com

www.costaluzlawyers.es

Conil de la Frontera ( Cadiz) beach by Shehani at Flickr.com

I visited London with my family and one of my five brothers´ family this last weekend. It was a verry sunny, blue and pleasant weekend and we enjoyed a lot the city, its people and .... the services.

The quality of services in London always appealed to me. I always return with the strong determination for committing  myself to bring Andalusian services to higher levels: we have great weather, thousands-year-old historical and cultural treasures, refreshing beaches, rich literature, delicious gastronomy, consolidated democracy, pleasing golf-courses, hospitable people and.... we are still not ready to offer to our visitors the very best of the services. We still do not have the strong entrepreneurial culture that Andalucia requires.

We cannot longer feel satisfied with offering just smiles, good paella and sangría and mañana-mañana. These do not work anymore. It is very good that Consumer Law is getting stronger and stronger for companies also to revise their policies and attitudes.

It is necessary to make the future generations ( beggining with ours) aware that we need to be able to offer our visitors  the best of our homeland for work rates to improve and for the economy to flourish and we need to do it in the best of the profffessional ways.

We can: of course we can.

Maria

www.costaluzlawyers.es

Tarifa ( Cadiz) beach by Chodaboy at Flickr.com

Just in case any of you did not see the podast that Justin published yesterday. 

http://www.eyeonspain.com/blogs/legalpodcast/3289/podcast--your-legal-questions-answered-by-maria-de-castro.aspx

Please comment and let us know on further questions.

Best,

Maria

Barbate ( Cadiz)  beach by Basilievich at Flickr.com

9. Finally the contract - does this have to be in Spanish? Ideally I would like it in Spanish with an english translation. Does anyone know where I could get hold of such a contract? Any lawyer with rentals services should be able to provide this to you. I have also heard that the contract should be submitted to arbitration- it is highly advisable does anyone know how this is done? Does there have to be a specific clause in the rental contract? Yes,  adding an specific clause to the contract  in this sense, is the way to do it. You will also be choosing the arbitrator in that clause 

 Santuario de la Luz ( Tarifa, Cadiz) by Basilievich at Flickr.com

 As my friend, workmate and colleague Fernando Alberich said to a lawyer-representative of a big development company in Murcia region last Wednesday, during a meeting we held together in order to see if there was a way to solve problems: " We all danced when there  was music playing"; we were obviously talking on how the finantial crunch has put an end to many dreams and.... abuses.

Today I have read in the Economnist that the spokeman of the main developers´association blame the financial system of unfair competition, as Banks are now selling properties at conditions which are unachievable for developers. 

Yes, Banks are approaching  persons´ pockets, as at the end of the day, consumers, persons... final addressees of economy mark the rythm. So natural as life, indeed.

From a consumers  legal perspective, there are also many other ways for calling the bahaviour of the most of the financial entities during the real estate Spanish boom related to the securing of Bank Guarantees out of provision 1.2 of Law 57/68: negligency, unfaithfulness, conflict of interests, omission of guaranteeing duties...

Anyhow, we are starting the final stretch of the current 2009-2010 course... ready to start the big battle for consumers rights against financial institutions in the field of off-plan developments. Any taker for the fight, please contact us. ;)

Have a great Sunday!

Maria

www.costaluzlawyers.es

Zahora beach ( Cadiz) by Basilievich at Flickr.com

According to a new published in "La Vanguardia" yesterday:

"The main Spanish banks are resisting a difficult environment. The defaults have shown signs of stabilization, but will remain at a relatively high level in 2010, and is expected to push the benefits, "according to a report by rating credit risk agency Fitch.

'The collapse of the housing sector and the recession in Spain have affected financial institutions', but Fitch is not' worried 'about the situation of the big banks, through “their current income, asset management, strong capitalization and continued access to financial markets” . The director of financial institutions at Fitch, M. Maria Jose Lockerbie, remember that institutions face the deterioration of the quality of its assets since June 2008, although 'in late 2009 some signs of stabilization appeared. " The credit rating agency - that with Standard & Poor's and Moody's had an essential role in the dissemination of financial assets contaminated by subprime mortgages between 2003 and 2007, underlines that the main institutions recorded a strong operating profit during years of great recession.

The report also notes that the benefits of the two large Banks, Santander and BBVA have outpaced those of their international competitors due to its large network of branches and their geographical diversification. For its part, Caja Madrid and to a lesser extent, La Caixa, more rooted in the real economy have been harderly hit by the recession and housing crisis, the report said. In addition, large banks have strengthened their capital without having received public funds, what has not happened in Germany, France, Belgium, the Netherlands, the UK and U.S.

I would add that the exposure of Banks to the housing crisis have been quite lowered due to Bank´s "negligent" ( to say the less) practise on not securing on the existence of the due Guarantees according to provision 1.2 of law 57/68. They, Banks and saving Banks were your deposits were placed, were entrusted by this Law to be the ultimate guardians of people´s hard earned money, and in many cases.... they  blatantly ommitted to do anything regarding this.

It is very important to take this into account and to ask for the  legally corresponding liabilities..... specially if they are so strong now against the rest of the "dancers of the building party" who are sooo weak and sick now:  specially consumers.

Again.. have a great Easter break.

Maria L. de Castro

www.costaluzlawyers.es

Maro, Málaga by Cayetano at Flickr.com