El blog de Maria

Recent Court decissions.  May 30th 2001, March 8th 2011, March 15th 2010

Consumers protection when buying a house is built on a number of rules which are precedent and subsequent to the signing of the contract . These rules are related to guarantees for precise information on what the purchase object is going to be and which oblige the seller to honor publicity Law in relation to physical and legal characteristics of the house.

Commercial offer (including publicity) implies the right of the consumer to receive out of charge all documents related to this.  The reason for this is mainly that the buyer as a clear representation of the purchase object and the vendor acquires the essential and constitutive obligation of delivering the exact purchase object to the buyer, meeting all included in contract and publicity.

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

 Ángel Mas, presidente de Genworth Financial writes today in Orbyt Expansion that the negative equity of many property owners in Spain is due to bad practices of financial entities which granted mortgages under imprudent risk criteria, combined with a very high property financiation based in a very aggressive property valuation with the assumption of unsustainable growth. All the above, also, with an incomplete information to the consumer.

He is proposing several principles:

1. - To avoid honest and reasonable debtors under temporal and unforeseen circumstances’ to lose their houses.

2. - To control the incentives of mortgages to consumers in order to stop speculation

3.-To stop immoderate property valuations

....and concrete proposals:

-         Mortgages no higher that 70% of the property value

-         Limit can be exceeded if combined with an Insurance of payment protection in mortgage loans

This insurance has several benefits:

-         Insurance companies revise the profile of the debtor, avoiding over crediting and facilitating access to credit

-         Insurance companies will be paying mortgages quotas during unemployment so the debtor will not lose his home

-         Insurance and Banks will establish clear and transparent refinancing procedures with access to debtors under difficulties

-         If there is finally a repossession, the risk is transferred from Bank to Insurance Company avoiding this way a restriction of financiation for the buying of houses.

Clever... isn´t it?

Horce races in Sanlúcar beach, Costa de la Luz by Fotografia S. Bautista at Flickr.com

Colleague Carlos Guerrero posted today in his blog a real case about a successful creditor´s meeting procedure for an individual which has ended with an anticipated agreement proposal

According to Carlos Guerrero the quickest way to make an individual´s creditors meeting a successful event is through the approval of an anticipated creditor´s meeting agreement. It is an agreement that you reach with most of your creditors in order to bring new deadlines to the repayment of your debts, without interests and even with some writing off of debt.

In the case that Carlos Guerrero has recently won, he obtained writing off of 50% of the debt and a postponing of 5 years for the repayment of the remaining.

Conditions of the agreement

Debt before the creditor´s meeting: 10,3441. 75 € in personal loans and credit cards

Cost of the procedure: 4000 € for Lawyer and 500 € for Court agent

Habitual home: The debtor kept paying mortgage installments along the procedure

Saving obtained: 51720, 87€

Banks which have accepted the debtor´s proposal: Carrefour financiera, Citibank, MBNA, Banco Cetelem and Santander Consumer

Banks which have been forced to accept it: BBVA and La Caixa

Length of the procedure: 5 months

La Barrosa beach, Chiclana by Alfonso Jiménez at Flickr.com 

 Because of:

-Weather

-Gastronomy

-Wine

-People

-Feasts

-Beaches

-Mountains

-Traditions

-Except over exploited areas, still affordable

-Except over exploited areas: pure life

-North of Morocco- Africa

- Most spoken language after chinese

 Very recent Case Law ( dated 3rd of May 2011) by Burgos Appeal Court

1.- Claimer requests both developer and Bank ( issuer of a general Bank Guarantee) to provide the individual Guarantee and subsidiarily to refund the handed amounts plus legal interests.

2.- On Banks liability Judge interprets that the constitution of the guarantee is so essential that if it is not met, the buyer directly acquires rights for devolution of the handed amounts. Banks are obligued to restitution of handed amounts due to negligency for not constituting the required individual certificates of Guarantees.

So, if you bought off plan and claimed for refund of deposits, obtaining a win but finding an unsolvent developer who cannot pay you back, go and find possible liabilities of the Bank who issued the general Bank Guarantee and did not assure you had your individual certificate for the protection of your amounts. Banks where you placed your amounts are also liable for the refund according to provision 1.2 of Law 57/68.

Great for Burgos!

Maria

Playa de Areacova, Cangas de Morrazo, Rias Baixas, Galicia, Spain by Inmobiliaria Lares at Flickr.com

Dation in payment notices put Banks into  real thinking of customer´s rights.

And sometimes agreements are reached.

And if  an out of Court agreement is not reached, you will  have a strong defence for a settlement of the debt if they finally decide to go to Courts.

I strongly advise them

Saint James Path, Spain by Fresco Tour at Flickr.com

Touristic houses are considered by the Basque decree as those fixed and prefabricated units that are offered to public for touristic use.  

This same decree also regulates lodging in rooms for those municipalities where tourism offer is insufficient.  

Owners need to communicate the rentals to the Tourism office of the regional authorities.

The owners of these units are obliged to :

a)      Keep the house in good conditions.

b)   To bring previous information to users regarding services, conditions and prices.  

c)   To have in every unit accesible information to name, category, registration number of the establishment and authorised capacity.

d)   To provide claim documentation to the user.

e)   To invoice according to legally established

f)    To provide required information to the administration

g)   To hire an indemnity insurance

A deposit as reservation of the unit is allowed. 

Zarautz beach in Basque Country, Spain by Fresco Tours at Flickr.com

Regulated by a decree of 2003.

Description:  The whole house (and not individual rooms) is rented for a price, in a professional and habitual way.

Maximum vacancies are 14, distributed in seven rooms.

An authorization by the Public Administration is needed and a plaque that will be  shown at the entrance.

Owner of these units will need to have a permanent indemnity insurance to cover damages and injuries of the clientele.

Stays in these houses comprise pacific use of the house. The hiring will be for weeks, week-ends and long weekends.

In terms of reservations, an advanced payment of the price is possible, being as maximum, the 50% of the full Price. The tenant can, at any time, cancel the reservation.

Prices will be public and  placed in an accesible place. Price will comprise water supply, electricity, and combustible necessary for heating, hot water and kitchen.

Payment will be made when and where agreed, if there is no specific agreement to this respect, payment will be made in the establishment when the invoice is presented to be paid.

Beach near Llanes, Asturias by Marquibeck at Flickr.com

 In Murcia, Holiday houses are regulated by a Decree dated 2005 (D 75/2005 de 24 de Junio).

 Description: Apartments, bungalows, villas… who are offered for rentals by companies, to be occupied for touristic use and which meet the requirements of the Decree:

Every touristic house need to have an identifying plate at the entrance

Minimum services and supplies to be included in the Price:

a) Permanent cold and hot water.

B) Gas and/or electricity .

c) Cleaning at the beginning of the stay.

d) Weekly change of linen.

e) TV.

f) Rubbish collection or containers according to local regulations.

Murcia

Tinsa has just launched this system for online property valuation:

https://tasaciones.tinsa.es/valoraciononline/Tpv/Calculo.aspx?iniciar=0

If you need help with the spanish, please let us know. We will be pleased to help you! :)

Cheers,

Maria 

Tarifa ( Costa de la Luz), beach by Grahamg at Flickr.com

 According to provision 2 of Decree 55/2005 of 20th of May, Touristic houses in Baleares are those units with a maximum of 6 bedrooms and 12 vacancies which offer lodging touristic services in exchange of a price.

 These are hired through commercial touristic channels with touristic companies which need to meet the requirements of the decree.

They need to provide at least cleaning, pool maintenance, gardens and equipments

 Any person offering to the market either as an owner or as an agent one or more touristic houses is a touristic company manager.

 These units need previous license by the Tourism Administration

 Managers need to provide full information to the user according to Consumers regulations.

Valdemossa, Mallorca by Majax1 at Flickr.com

 Álava Provintial Court Case dated the 13rd of April of 2001 is on the abusive character of  interests on delay payments rated at 18% in a mortgage loan between a consumer and a Bank.

The claimer considers that the interest need to be reduced to 2.5 times the legal interest at the time of the contract (10.62%), based on provision 19.4 of the Consumer Credit Act. 

Although the ruling states that the analogy is inappropriate because the cited article refers to the remunerative interest on the overdraft, which is not what it is being considered by the Court decision, the same decision states that the formula
above is a relevant reference on reasonable financial costs of the Bank.

This interesting Court decission establishes that despite these agreements being the object of agreement between the two parties,  in Spain, autonomy of the will is always limited by the force of Law, Moral and Public Order. This opens the gate for a possible analysis on the abusive character of the fixed interest.

 Although none of the consumer protection rules sets a clear limit to agreements about interests on delay payments, this legislation is always concerned about abuses when granting credits and  prohibits the imposition of compensations which are disproportionately high to the consumer who does not meet its obligations. 

Taking into account that the legal interests when the loan was signed was of 4.25%, the agreed delay interest was more than 4 times the legal one. Therefore, the Court  considers that compensation is disproportionate and therefore  overrides  the clause as abusive and proceeds to the integration of the contract, fixing the interest on arrears in 10.62%.

Zahara, Costa de la Luz, Cádiz beach at Flickr by soyignatius

In Galicia, touristic apartments are regulated in a decree dated the 24th of March 2011.

Specific requirements  for this  tourist homes, are regulated in the arts. 15et seq.

The capacity of tourist accommodation, in no case can exceed ten vacancies and  will be determined by the number of beds an convertible seats available in the living and dining room. 

The required minimum area will be  of six  meters squared for one bed bedrooms and ten meters squared for two beds bedrooms.

The duration of  the stay in apartments and houses will be that which is freely agreed by the parties. In no case the owner can impose minimum stays over seven days. (art. 23)

Playa de AreaBrava, Pontevedra, Galicia, Spain by  Inmobiliaria Lares at Flickr.com