El blog de Maria

European regulations on financiation of broadband are under consultation by the European Comission till next August the 31^st.

The goal is not just to promote public and private investment in this type of nets but also to guarantee higher competence in this field.

Further information: http://ec.europa.eu/information_society/digital-agenda/getinvolved/index_en.htm

Have a great weekend, hope you are enjoying your Royal Wedding!

Cheers,

María

Benalauría, Málaga, Andalucía, Spain by Don Melitón at Flickr.com

According to a very recent Court decission of the Alicante Appeal Court: purchases of Real Estate made through public deeds granted by Notaries of other countries of the European Union are registrable in the Spanish Land Registry. A Spanish notary is not necessary for validation of the deed.

This is the content of a Court decision by the Alicante appeal Court dated the 2^nd of March 2011. There is another identical Court decision by the Santa Cruz de Tenerife Appeal Court which is one under the Supreme Court final opinion.

In June 2006, the European Union reported Spain of breaching provision 49 of the UE Treaty due to the obstacles made to foreign deeds. These days, most Land Registrars are admitting foreign deeds without any problem in Spain.

The Alicante Court decision establishes that the document that has been sent to the Registry by the German Notary with the corresponding Apostille is a public deed in all its effects, including the possibility of Access to the Land Registry according to provisions 2 and 4 of the Mortgage Act. This access to Land Registry in Spain gives these transactions fullest legal safety and "erga omnes" effects ( before thrid parties).

The Alicante Magistrate makes a special reminder on the sentence about contracts requisites and legal forms being regulated not just by the country where they are granted but also by the personal Law of the signatories

Times are changing! 

Benalauría, Ronda, Spain by Roberto Pecino at Flickr.com

Supreme Court decisions on linking character of publicity in off-plan purchases

The most recent Court decision by the Supreme Court on the linking character of publicity is dated the 8^th of March 2011.

The Supreme Court has reiterated established that "there is an essential obligation by the seller to provide what it was included in contract, quality specifications and publicity, which integrates the content of the contract." 

Moving ahead with Consumers protection: balance to the market.

Cheers,

Maria

Country Hotel in Vejer de la Frontera, Cadiz, by TopRural at Flickr.com

 Active tourism ( Sports and Adventure)

Activities for the organization of active tourism in Andalucia are a touristic service

Companies for the organization of these activities need to meet the following requisites:

1. - To have indemnity insurance to cover damages for users and third parties

2. - To submit a declaration of liability before the Tourism Registry in Andalucía

3.-  To have the adequate personnel

Obligations of Companies for Active Tourism

1. - To keep environment protection and safety measures

2. - To prepare and to activate the necessary emergency and evacuation plans in case of accidents

3. - To revise and maintain in good state of use all the equipments and material according to current regulations

4. - To prevent determined people from practices which could be deemed dangerous to their circumstances

5.- To inform, advice and make the company of certain people

6.- To credit knowledge on life saving and first aid of the staff

7. -To make public all the measures taken for the safety of users

Equipment and material need to be approved by competent authorities.

Information for users need to be unequivocal, truthful, enough and understandable

Young people under 16 years old will need their parents’ previous and written authorization for the practice of active tourism activities

Parts I and II of this serie here    

Cortijo Lagar de Luisa, El Borge, Málaga, Andalucía ( España) by TopRural at Flickr.com

 In this case, you are entitled to have them keeping the rate you had before the increase.

Provision 1 of the Insurance Act establishes the premium as a essential element of the contract and therefore any change on this needs the concurrence of the two contract wills/parties ( 1203.1 and 1262 of the Spanish Civil Code)

If the provider, the Health Insurance Company, wants to increase the premium, it will be under the obligaton of communicating this to the user with a minimum of 2 months of anticipation according to provision 22 of the  Spanish Insurance Act.

If this previous communication is not performed, the increase will need the express consent of the user who can refuse  it and therefore will  be entitled to keep the current rate for a  new whole period. During this period the Insurance company will not have the faculty to cancel the contract.

Tarifa, by Linguiz at Flickr.com

 In may last post, when refereing to the Totana ( Murcia) Court decission we recently obtained for one of our clients I said:

SOMEONE WHO BUYS TWO PROPERTIES IN SPAIN CANNOT BE CONSIDERED A CONSUMER

when what the Court decission said, according to concept of Consumer by the European  regulations is JUST THE CONTRARY:

SOMEONE WHO BUYS TWO PROPERTIES IN SPAIN IS STILL A CONSUMER

The criteria that the Totana judge exposes in the recent Court decission for this statement are:

1.- If you buy two for renting one of them, as you can still use it, you are the final user of the object.

2.- Most importantly, if the purchases are out of your proffessional sphere, YOU ARE A CONSUMER.

So, no just two but even more, if this does not make your main source of income/proffessional activity, you are proptected by the rules of Consumers Law

Apologies for this and good luck for those who are Consumers again today!

Arcos de la Frontera by Tiubuk at Flickr.com

Passed on recent 5th of April, for one of our clients, the Judge says so important things for Consumers protection in Murcia:

1.- Someone who buys two properties in Spain with the aim of renting one of them can still be considered as Consumer according to the european definition of this.

2.- The clause by which the developer can keep all the amounts paid by the consumer if this breaches the contract  is abusive as it is disproportionate to damages effectively caused to the counterparty and also because the contract does not establishes an equivalent right for the buyer if the developer breached the contract. 

Good for Consumer-oriented judges in Murcia! May the grow and grow! ;)

Happy Easter to believers and Happy holidays for non believers! :) 

Arcos Parador by Jose_Gonzalvo at Flickr.com

Spanish government is planning new taxes incentives to promote building  refurbishment and dynamism to the building sector still almost dead in Spain.

It seems the government is going to increase the rebate amounts from 10% to 20% on incomes of less than 33,007 Euros, with a limit of 4,000 Euros. This amount will be progressively reduced progressively until the income of 53,007 Euros, which is the ceiling for the tax incentive, and only exclude 5% of taxpayers. 

There is also a reduced VAT (8%) for plumbers and carpenters, among others, reforms used to pay 16% then. 

Casa de Campo in Benalauria, Ronda, Málaga by Roberto Carlos Pecino at Flickr.com

 I have google-translated ( I wish I could translate at that speed), this interview I received in an online Law Journal. Bolds and underlines are made by me. 

Interviews
April 18, 2011 NUNO MIGUEL COLLADO, MEMBER OF THE GENERAL COUNCIL OF THE JUDICIARY
"The Spanish judges are not the problem"

Miguel Collado is a very active voice in the Supreme Judicial Council. It belongs to the Judicial School Committees on Relations with the Autonomous Communities and Social Communication, precisely establishing the communication policy of the judiciary.About the image that has the Justice and that we should have spoken with the voice Collado, who offers a dynamic, rather than a snapshot.

Legal Today

How, people taking justice as prepared for communication like you, our citizens have the image of a slow and antiquated justice? The latest CIS survey says that 70 percent of the Spanish think that justice is malfunctioning or medium.

You yourself have put your finger on the pulse. We move through prints. Justice does not have a single image, a single face. It has many different faces. Is multifaceted. In sociological studies being done, since 1984, Professor Jose Juan Toharia, has determined that only 25 percent of citizens had any direct contact with the Administration of Justice. That is, one in four.

Where did the rest forge their opinions?

From what they tell other people and, of course, the media. Things are not black nor white but gray. Look, if we do a bit of memory and we go back to 2007, the trial of 11-M, and remember the image being projected through television for four months and a half that the hearing lasted, the public thought we had just the opposite. A modern justice and updated.And so Metroscopia reflected in a survey conducted for the National Council of Notaries then, on the level of public confidence in institutions, and published in September 2007.Spanish court received a note from a 5.9, the highest in five decades, on a scale of 0 to 10. The highest note was received by the Crown, with a 7.1.

There was public praise by the  U.S. and European judges, and as he had conducted the trial and spoke of the "Spanish way" of doing things in Justice. Months later, a few other cases occurred blew that image into the air. What was the true image of Justice? "The trial of 11-M or later surfaced?

Perhaps the answer lies in the middle, do not you think?

I agree. The answer is usually always in the middle of things. And I want to clarify two things: first, the Spanish courts are not the problem, and second: we need more modern media.

Some critics to the work of the media coverage of court cases hold that the problem is more bad press than bad image. What do you think?

Justice that works well is not a  new, it has to work well. For that we are paid and so it should be. Good news is often viewed as advertising or publicity for the institution.Therefore, always have more bad news than good output. Bad news is "news" par excellence. In part what you say is true, but I think you have to kill the messenger.

The problem of justice is, in part, ignorance that the public has of it. Love what is known and what is neglected is unknown. The Court has recognized that the communication and, special education are important assets that must be given special attention.

You mentioned education. Have you started the CGPJ a program dedicated to young people, citizens of the future?

Of course, called "Education in Justice" and is designed for students of ESO and Baccalaureate. We have implemented most of Spain and the results are very satisfactory. "Education in Justice, in a nutshell is an introduction to the world of Justice through a tool that the Council of Europe has been praised and identified as the best: simulation, role-playing game. They mock trials in which students they stage an actual case, which has been previously scripted. Each one of the boys assume the roles of defense attorneys, prosecutors, defendants and expert witnesses. The only truth in the representations that are made in schools and colleges is the judge, a judge of truth, which is then subjected to questions from the students. I have had the experience of "Education in Justice" and is one of the most rewarding of my career. We are currently preparing to relaunch for next year, with new scripts, attached to the present. One of the challenges of justice through education of the young.

Worried about the illness and some media sensationalism? Do not believe could help the judiciary know better?

The role of the media is not to educate the public but to inform or entertain, using headlines and original as possible approaches to get their attention. So run, that is their nature. We can not fool us. It would be desirable that the reporters who are dedicated to cover the justice sector have a thorough knowledge of laws, the functioning of the courts.Since the Council we have made great efforts in recent years organizing workshops christened the "Report on Justice" for journalists covering courts in different regions.Free workshops are taught by experienced faculty judges. These experiences have paid off. Have high levels of quality of information, but things can change suddenly. Take your time. Although it should be noted that there are great journalists in Justice to do a great job.

What they have done something to raise awareness among judges about the media?

Judges have to learn to deal with the media, with journalists. There are two institutions that are essential for democracy, justice and the press. There can be no democracy without an independent judiciary and a free press, without their roles as counterweights to the executive. This will have very clear, therefore, for two years we have been working with our judges in the different regions, in what we called "Media Training Workshops."Through these workshops will introduce the knowledge of the media, their functioning and their nature. We teach them to communicate as effectively as possible. Judges can not turn its back on society. We can not afford that luxury.

To you, members of the CGPJ, they are perceived as politicized and this affects the image that society has of judges. Can we end this very negative?

There is a confusion that needs to be clarified and that is the essence of the problem.The judiciary is the Supreme Judicial Council. The Council is the governing body, whose main mission is to ensure the independence of judges and manage Spanish judiciary.

The Council does not make judgments. Does not do justice. The Council can not give any indication of any judge to put a sentence in one way or another, or to open an investigation or so and so Somebody's niece or for the closing. Spanish judges have a high degree of independence and impartiality, similar to that of the world's most advanced countries, among which, undoubtedly, we are. That is reality.

Our main function is to provide the public justice to the citizens, which is where our legitimacy emanates. That judges and magistrates have all the necessary means to carry out their work. And this sense, as a Council, we participate in a direct and decisive management of the Spanish Justice Administration, ensuring, above all, judicial independence. That is our beacon, our North and our essence of being.

"Golf Club La Alcaidesa", by Luis López-Cortijo

We are starting our club for amateur enterpreneurs in Sabinillas and Alcaidesa next September 2011.

Information and applications´ process available at : web@costaluzlawyers.es

Come and join our company´s understanding of business and commercial growth and have lots of simple and sustainable fun as you go!

Te esperamos!

María L. de Castro and the CostaluzLawyers team

Gibraltar Rock from Carboneras by RaMaOrLi at Flcickr.com

The Council of Ministers approved yesterday the project for Civil and Commercial Mediation Act.  This will enhance citizens possibilities for out of Courts agreements. This project is an implementation of European directive 2008/52/CE.

Some guidelines:

*For procedures under 6000 €, mediation is obligatory, at least the attendance to an initial free informative session.

*The procedure stablished by this Law guarantees impartiality and confidentiality of the mediator. This will never impose any particular solution to the parties.

*Mediation procedure will have to be solved within 2 months. The mediation agreement will have the same effect of a Court decision.

Mediator´s requisites

In order to act as mediator, the following conditions will be necessary:

1.- To have a civil liability insurance

2.- To be registered in a Public Registry with free information available to citizens

Mediation would also be allowed to be performed through electronic means provided identity of parties are respected and mediation principles are considered.

Good for consumers: good for the general health of Mrs Economy!

Have a great weekend!

Maria

Vejer de la Frontera, Costa de la Luz, Cadiz, Spain by Chris Juden at Flickr.com

Paco: Hello, my name is  Paco and I have a 40 years mortgage

Group´s members: Hello Paco, We love you Paco, Welcome in Paco, How are you Paco? You are not alone Paco

Two options: either to laugh or to cry

Have a good weekend!

Maria

There are already more than 120 Court decissions in Spain against swaps ( financial products  who were supposed to protect your mortgage interest rate if  risen) and who were finally no protective at all.

Court decission which prohibitted BBVA, Caixa Galicia and Cajamar  to apply the floor clauses  is now enforceable.  So if the euribor gets lower than their floors, the good low euribor is applied!

It seems that there is Justice around....and that Court Decissions against abuses of finantial institutions are blooming this springtime!

Cheers!

Maria

Balcony with floers in Oviedo, Spain by Martius at Flickr.com

The Commission for Justice of the Congress rejected yesterdsay two amendments to the Consum Credict Act brought by ERC-IU-ICV by which these groups tried to introduce in this Act a legislative limit to floor-clauses in mortgage loans which have already been declared abusive by Spanish Courts.As you all know, these floor clauses established unproportionate limts to the application of interest rate falls: a Seville Court declared them illegal last October2010.

The encouraging side of the new is that both PP and PSOE representatives stated that the reason for the rejection is not the lack of sense of the proposal but just a matter of a correct legislative framing. They both thknk that the matter needs Congress discussion under a different chapter: Mortgage Act reform.

Good!

Arcos de la Fronterra, Costa de la Luz, Cádiz, Spain

Rural work sector grew in Spain last year, specially in Canarias, Aragón, Murcia, Cataluña and Andalucia. The Social Security System in Spain is also improving the conditions of rural workers.

The wisest and healthiest option: rural work/life with Internet access. Come to our countryside: it is rich and gorgeous!

Maria

In a Court decission dated back in 2008, the Higher Court in Spain establishes that per application of Consumers Law, the clause which gives the developer a right to keep all money paid by buyer when the developer cancels the contract is illegal and therefore null and void.

The Supreme Court adds in this Court Decission that the clause by which the developer keeps all amounts if the buyer breaches does not have a correspondent clause in favour of the consumer if the developer fails to meet. Which provokes unbalance. Which is illegal in Consumers Law: VERY SIMPLE

Maria

Vejer de la Frontera, Costa de la Luz, Cadiz  by Jose_Gonzalvo at Flickr.com

I almost die this morning when I read Blanco ( the Secretary of Public Works) is endeavouring for a new Road Show to sell the property stock abroad after meeting with Banks and developers

Come on....

Are there...?

-No new ideas?

-No meetings with consumers?

-No meeting with initial buyers-- mostly foreigns in coastal properties-- of those properties?

- No knowledge and understanding of the reasons why they did no complete? breaches by developers? lacks of financiation?

-Is it that you just know to escape by runing ahead?

Talk to Keith Rule, read the BankGuaranteesinSpain petition and  you will know how to make hundreds of former foreign buyers, happy possible new investors in Spain. Negotiations with Consumers are necessary. You need to listen to these.

Take an examinations of past errors before starting new campaigns! Spain will not sell property abroad again till:

- Banks Guarantees problems are solved

- Consumers are restored in their rights

- Problems related to lack of independent legal dvise and its roots are faced

Maria

"Golf Club La Alcaidesa", by Luis López-Cortijo

According to Richard Susskind, lawyers role is to set a fence before the precipice and not to offer an ambulance when the client has already fallen.

So true!

Have a great weekend!

Maria

Giraldillo, Sevilla, Andalucia, Spain by Werkmens at Flickr

The researcher of the team found yesterday a great Court Decission on the International Law Principles and provisions behind the most recent doctrine of our Supreme Court by which contract cancellation does not require, as in the past: a deliberately rebel will by the breacher but, just the absence of the complete and satsifactory performance according to the agreed terms ( Supreme Court decission of 5th of April 2006).

These International Law principles/provisions are:

-Provision 25 of United Nations Convention of 11th of April 1980, that Spain joined in 1990

-Provision 810.3 of European Principles of Contract Law

-Unidrait Principles. Provision 7,3,1,26

We need to add that by doctrine of the Supreme Court, all the features included in publicity are also part of what the party is entitled to expect out of the contract and that is not provided, the contract can be cancelled ( enforceable Supreme Court case law since 27th of January 1977!)

Have a great weekend!

Maria

Cadiz by Harry Wagner at Flickr.com

An answer in a post today: http://www.eyeonspain.com/forums/posts-long-12974.aspx

Hello Belucky358:

I do not recommend to leave the presence in the creditor´s meeting but  honestly, there is no much to be obtained from there. Credits are classified very unadvantageously and the results are very poor. 

Taking into account that the legal order has provided for this off plan buyers to be safeguarded  through clear and innovative systems of Money Guaranteeing... why then to burden them with the weight of going through the nightmare and length of the creditor´s meeting?: a mechanism that just "protects" developers, if so.

Law 57/68, if well applied, was supposed to have been a great tool for a sustainable off plan development in Spain. Big shame that it is a Law which has been deeply mis-understood, mis-applied, mis-commented...

It is not fair that consumers, having a legal mechanism in place for the protection of their money, are conducted to be restricted to the rules of a procedure which is aimed to protect the opposite party: the developer. It is even more unfair as this mechanism is used as a last recourse due to lack of enforcement of the obligations that Financial Institutions have on this all.

Law 57/68 sets a guarantee mechanism for people who risked big amounts of money against a plan. And made financial institutions risponsable ( provision 1.2 of Law 57/68) on verifying on the existence of the Guarantees.

Defense for people like you need to be performed, as a matter of justice, within the ambitum of the legally required protection and protectors.

Creditor´s meeting does not protect  you at all!!

Maria

Ronda by Harry Wagner at Flickr.com

All data held by the Government on real estate in the Catastro, with the exception of those under protection, will be available online to the general public. These data will be allowed to be used by companies for commercial purposes. 

Information downloading will be made online with the required personal identification through the electronic identification document or any other authorised electronic signature. There will be an online license to access the service whch will have to be expressly accepted.

Bolonia beach, Cadiz by Rafa Velázquez at Flickr.com

Apartaments, business premises and their attached elements can be materially divided in order to form more reduced and independent ones. They can also be enlarged by aggregation to adjoining ones within the same building or reduced by segregation of parts. 

For these to be legally performed, it is needed the consent of affected parties, the approval of the community of owners, which will set new fees for the new elements.

For parts II and I of this serie, you can click on here

Ronda, by Werkmens at Flickr.com

Cataluña government  decided yesterday to eliminate  Inheritance Tax for  close family relatives: spouses, ascendants and descendants.  Cataluña will be the region with lower IHT from then on. This will help to avoid flight of capitals to other regions.  

This decission will be in force starting the 1st in January 2012.

Ronda by Werkmens at Flickr.com

Improvements or detriments of the individual apartments or premises will not impact the quota of ownership share of the community of owners.

Post I of this serie here

Tajo de Ronda by elholgazan at Flickr.com

There is  a Notary deed which is signed when a building is being made. This is called the " Escritura de división horizontal" ( Horizontal Division Notary deed). This deed establishes the ownership quota corresponding to each unit. This quota can also be established by unanimous consent of all owners, by judicial or arbitration decission.

The ownership quota takes into account the usable surface of the unit in relation to the building, its internal or external location within the building and the predictable use of commun servcices by owners.

 Ronda by Werkmens at Flickr.com

Interesting article at El Economista today: A frequently ignored problem in repossessions is the excessive delay interests. Two good solutions:

1) To legally limit the rate of delay interests: This would not be a foreign measure to our legal order as Law 7/1995 on Credit for Consume and Cheque and Exchange instruments Act of 1985 establish limits to delay interests. This last one set legal interests +2. According to El Economista, this would be a good reference. We agree

 2)To legally limit the amount and mortgage installments which have delay interests attached.  This other measure is not foreign either. Provision 693.3 of the Civil Procedure Act allows the debtor to save the asset that is going to be repossessed, if this is the habitual dwelling, by paying those installments whicg are due at the moment of bringing the Lawsuit to Court and therefore limiting delay interests to these instaments´amounts. This measure would reduce between 20 and 30 percent the amounts being claimed.

If it is raining or you are bored and have nothing else to listen to... 

http://www.eyeonspain.com/blogs/legalpodcast.aspx

;)

María

"Golf Club La Alcaidesa", by Luis López-Cortijo

Congress aproved last week a new Act on financial brokers which enables the Stock Comission ( CNMV), as Bank of Spain does,  to request investment companies to limit variable remunerations when this is not compatible to maintaining a solid capital base.

Both institutions will have authorization to gather information about people in credit entities and investment companies with remuneration of at least one million of Euros and to transmit this information to both the European Bank Authority (EBA) and the European Authority of Stocks and Markets (ESMA)

Data about remuneration will include the implied business field and main components of the salary, incentives, long dated bonuses and pension contributions. This information will always be used according to the Data Protection rules. 

Atlanterra beach, Zahara de los Atunes, Cadiz, Spain by Paul Rios at Flickr.com