El blog de Maria

Madrid Appeal Court, February 2014

Madrid Appeal Court estimates the appeal filed by the purchasers of timeshare rights and cancel both the  contract and the associated personal loan under the theory on linking contracts. 

There is a very relevant breach of contract by the seller as the buyer was never informed on his rights of  withdrawal and unilateral cancellation of the contract.

Madrid, by Jose Maria Cuellar, at flickr.com 

First time  aCourt recognizes moral damage linked to improper marketing of preference shares.

The judgment of the Court of First Instance No. 2 of Santander has condemned the bank " Liberbank " € 4,000 to compensate a client for the moral damage suffered as a result of the subscription of preference shares. The inability to recover the invested capital caused the plaintiff severe psychological injury and a decrease in performance as a professional athlete.

The decision is a milestone in the assessment of moral damages resulting from the purchase of this high-risk financial product.

The general line taken by judges and courts, once declared the nullity of the purchase of preference shares, has been to reject the compensation for non-pecuniary damage, as there was no evidence to establish harmful effects susceptible of compensation other than those produced by the economic.

Thus, the judge understands that the drop in athletic performance of the plaintiff involves a "pure moral damage” beyond the economic loss.

The judgment that is not final and can be appealed, has been branded as “exemplary " by the Platform of People Affected by Preferred , but  it is still necessary to wait to more judgments in this sense before saying this constitutes a trend change.

Chiringuito Los Troncos, Bolonia, Tarifa, Cadiz, Costa de la Luz, South western Spain, at facebook.com

So good to see!

Congrats to clients and Granada judge favouring consumers rights at these controversial development!

We are keeping the fight up!

When are you getting back to Spain?

Maria

ç

Granada, South eastern Spain, by Fernando Lopez, at flickr.com

They are ( finally!) nicely and positively  bringing to us the info that should have had in our clients´ hands many years ago.

Some important certificates by Banks on developers accounts where off plan deposits were made are still to be received. We have suggested to them to try to obtain the information within one month. I am sure they will do it.

Thanks Martinez Echevarria, 

Maria

Iznájar, Córdoba, at facebook.com

Hoping to receive a good number of files, that we have been requesting for years, from Martinez Echevarria offices.... time is over now. Friday in or we will see then in Courts. No option left

Tossa del Mar (Gerona), North Eastern Spain, at facebook.com

A recent Court Decision by Asturias Appeal Court establishes the nullity of the timeshare contract, applying provision 1261 of the Spanish Civil Code and request not just the Timeshare company but the related Bank ( jointly and severally) to refund the consumer all amounts paid plus legal interests plus legal costs. Under the theory of linked contracts.

Asturias Appeal Court estimates that the Bank acted as exclusive entity for the financing of the product and therefore both contracts are linked and both affected by the nullity vice.

AP Asturias, sec. 6ª, S 20-1-2014, nº 13/2014, rec. 494/2013

Beach "El Cañuelo", Bolonia, Tarifa, Cadiz, Costa de la Luz, South western Spain, at facebook.com

Lawyers in Spain registered with a Bar Association, which is necessary and obligatory for the legal activity, all have Professional Indemnity Insurance.

I can feel ( and agree fully with) the frustration of many of our contract cancellation clients which were not granted a Bank Guarantee / Insurance Policy when they bought in Spain. Many of them have been and are suffering the anguish of going through two judicial procedures: first against the developers and second against the Banks, now that Case Law is consolidated for bringing liabilities when individual guarantees did not exist.

In many cases, Banks failed to verify that guarantees existed, ( according to provision 1segundo of Law 57/68); in other cases, developers did not request them as part of their obligations; but, in our opinion, if the client used a Conveyancing Lawyer, and they were not provided with a guarantee according to Law 57/68, a claim against these conveyancers ( either Lawyers or not) is always possible.

Any damage arised to the Lack of Bank Guarantee but the refund itself, which is directly claimable against the Bank which received the deposits, can be made against these profressionals, unless they can prove they requested the Guarantees and were not provided by the developer. 

It is true, in Spain, we are still somehow reluctant to use this action but, in my opinion, for a a healthy society, we all, professionals, need to respond for our negligencies.  

Ruins of Bolonia, Tarifa, Cadiz, Costa de la Luz, South western Spain, at facebook.com

Judges have reflected on this matter, which is being used more and more among Community of Owners in Spain in order to stop unpayment of Community fees. When being explicitly asked by El Derecho ,4 out of 7 Magistrates consluded that this practise is not legal. These below are their conclusions:

 1 - The role of internal rules is only to facilitate better standards of  use of common services by all community, and therefore to stop meaningless restrictions that impose a prohibition on the faculties of use and enjoyment that integrate the right of ownership.

2 - Use of common areas by owners in payment default cannot be prohibitted. Any agreement made in this sense by the Community of  Owners is not valid ( therefore not effective) . The Property Administrator should advise in this regard and not to include such topic among discussion points of the Agenda.

3 - The only legal effect of lack of payment provided by the Horizontal Property Act is deprivation of voting rights  to the  defaulter. In this aspect, this Law  even maintains for the defaulters the right to attend and discuss in the meetings.

 4 - By virtue of provision  3b of Horizontal Property Act every singular owner is also co-owner ( as per quota) of  commun belongings, areas and services.

 5 -Llimitations to ownership rights, according to our Constitution, are only  permissible provided they are covered by law, which is not the case.

A property in Tarifa, Cadiz, Costa de la Luz, South western Spain, at facebook.com

Easter time: travelling time.

Some tips on different types of travelling related claims: 

- Delay :       

(1)Right to information from the first moment

(2)Right to be assisted from 2 hours late

(3) Financial compensation if the flight is delayed more than 3 hours. Compensation                       amounts: EUR 250 for short-haul flights ; 400 euros for medium ;and 600                             euros for all long-haul flights.

- Cancellation:   

(1)Compensation : Between 250 and 600 euros depending on the distance. 

(2) Right to choose between:

a. Reimbursement within seven days of the full cost of the ticket and a return flight to the first point as quickly as possible, or                                

b. Routing to the final destination by similar mean of  transport

 
 (3)Meals and refreshments are also to be provided depending on  necessary                                expecting time.

 (4) Hotel accommodation if the stay for one or several nights is necessary

 (5) Transportation to hotel.

- Overbooking : Between 250 and 600 euros depending on the distance of the flight. Plus                                 alternative transport or return ticket.

- Loss or damage to baggage. 1,300 € are claimable  for damage, delays or incidents with luggage , but it is necessary to process the Property Irregularity Report (PIR ) at the counter of the airline, or AENA. This step is very important as, otherwise, it is presumed that the baggage has been delivered correctly and in good condition and claim will not be possible.  The deadline to process the P.I.R. is 7 days in case of damage and 21 days in case of delay of disappearance. But it should be done after landing and before leaving the airport.

As an addittional tip in regards to baggabe: If expensive items are within your lugagge, you shopuld make a declaration of this, so you can apply for the corresponding compensation is it suffered an accident.Otherwise , it is very difficult to prove what it has been missed or damaged. 

Claim Deadline : Up to two years .

Plaza Zorrilla, Valladolid, North of Madrid, at facebook.com

The Council of Ministers , at the proposal of  Minister of Justice , Alberto Ruiz- Gallardón, and in coordination with the Ministry of Finance has approved the draft reform of Mortgage Act and Land Act to facilitate the secure exchange of data between the Land Registry and the Cadastre and to avoid contradictory and incomplete information about same property. 

 Coordination of existing information between the two is essential for better identification of properties and a better delivery of services to citizens and administrations. However, the regulatory dispersion and the lack of  a comprehensive and consistent data processing from each other cause today the opposite result: it is difficult to know when a registered property and cadastral plot are the same reality .

Simplifying/ coordinating---- good exercises within the Legal World

Have a great weekend

Maria

Evening in a beach of Tarifa, Cadiz, Costa de la Luz, at facebook.com

Two recent so interesting judgments , one fom  Tenerife Appeal Court  and another one from Valencia Appeal Court on the typical case when a buyer is offered a lifestyle in the marketing brochures, finding at the moment of completion that just the house is built and the whole lifestyle elements are missing.   

Valencia states  " the primary obligation of the seller is to deliver the product and this  is not limited to just product characteristics included in the contract but also it  extends to anything they had included in the offer , promotion and advertising through brochures or similar documents  ( ... )

This Courts ruled in favour of the buyer for contract cancellation as it found that there has been a substantial change in the object of the contract with regard to both the residential itself and also in regards to the absence of the marina and  the leisure facilities..

Tenerife  takes a lengthy defense of consumer rights in such matters with references to several recent judgments of the Supreme Court: 

SECOND - . ( ... ) In short, the appellant's compliance with its obligations today necessarily entailed the construction of the property  within a complex , and specific facilities and services , these being an intrinsic element of the contract and essential part of the contract ( ...) According to recent judgment of the Supreme Court of July, 2011 which states: " the disputed brochure is not just a soft promotion tool but a marketing offer as it contains objective information related to relevant features" ( ... ) "its importance is unquestionable from the perspective of the integration of the  contract ( art. 1258 CC EDL 1889/1 ) , given their significant impact on the  decission making process or formation of consent . "

Tenerife continues:

We also have to keep in mind:
( a) It was acquired off plan which does not allow to appreciate the lack of veracity of the brochure 
( b ) Valued features as mountain views and ocean  influenced decisively in the acquisition. 
( c ) The requirement of the buyers do not respond to subjective whim
( d ) The contractual good faith requires consistent behavior with the expectations created in the traffic

( ... ) The lack of views does not reduce the use of the dwelling , but frustrates the legitimate expectations of buyers (for all Supreme Court Decission dated  2 April 2011 ) , which would not be offset by a mere compensation.

(.. ) are particularly relevant to the point that having known the actual circumstances buyers would not have purchased the home.

( ... ) The relevance of advertising in the decision making process of an average buyer is increasing

Alcaraz, Albacete, South eastern Madrid, Spain, at facebook.com

Senate approved last March 27, the New Consumers Act. The New Act specially reinforces consumer protection for long distance contracts .The law requires commercial websites to indicate clearly and legibly, since the beginning of the purchase, what are the terms of payment which are accepted and if there are any restrictions.

Consumers and users must be knowledgeable of deposits or other financial guarantees that have to be paid by them. Likewise, those who sell goods or provide services remotely shall clearly report the existence of the legal guarantee of the goods.

Purchases made during a promotional organized tour organized, are considered off-premises contracts.

New law extends the period for exercising the right of withdrawal for distance and off-premises from 7 business days to 14 calendar days and if this right is not part of the information provided to the buyer, these same periods extend to up to 12 months. Regulations on stay-clauses are also included in this Act.

The Act also includes new measures to limit the commercial telephone harassment, prohibiting calls at night or on weekends.

National Association of Consumers (OCU) in Spain thinks that the current Law implies an improvement, but that it is not enough. Control and sanctions need to be reinforced and sanctions need to have a compensatory nature so that the penalty should serve as compensation for the harm suffered by the Consumer.

Law entered into force on the 28^th of March and is applicable to contracts with Consumers in Spain from 2014, 13rd of June on.

Iznájar, Córdoba, South of Spain, at facebook.com