El blog de Maria

This question is essential for the enjoyment of some benefits and very especially for the ascertainment of your taxes liabilities.

Actually many laws in Spain apply the “fiscal residency concept” to classify the residential status of persons for other purposes

For any European citizen, the acquisition of the Spanish residency is very simple: you just need to register yourself at the National Police station through a very simple process (previous   appointment) and pay a small fee of around 10 euros.

If you don't have Spanish citizenship, you're a resident if either:

o    You stay in Spain for more than 183 days (including sporadic absences and day traveling in and out of Spain).

o    The main base of your professional activities or economic interests is in Spain.

o    Your spouse and minor age children reside in Spain.

Tax benefits

• In Capital Gains Tax: From 2015 on, residents in Spain are exempt of capital gains if- as always- they sell their first residency and reinvest in first residency within two years or...) and this is NEW!

You are over 65 years old and:

a) Sell your first residency even if you do not reinvest in first residency again.

b) Sell any real estate asset and invest these funds in a life annuity as a complement of your pension, with a maximum limit of 240.000 euros

• Lower Income tax burdens: as in Spain the rates are lower than in most of northern European countries.

Health System benefits

Health system in Spain is universal, which means that everyone (national or foreigner) has rights to basic an urgent health services

Residents contributing to the Spanish Social Security system or a UK National Spanish resident receiving a UK state pension, will have rights to all the services of the Health system under same conditions as Spanish nationals.

The main obligation if you become a resident is that of submitting your world-wide incomes to the Spain treasure.

Most countries in northern Europe have now higher income tax rates than Spain . As a consequence,  the income levels for the higher tax rates start lower in Spain than in other countries.

Obligation of informing of all assets worldwide ( 720 form)

If you are a Spanish resident, you need to have a Spanish registered car and a Spanish driving license, unless you have got an European driving card.

PROMOCIONES INROAL S.L. - BANK ACTION WON IN PROVINCIAL APPEAL COURT AGAINST BANCO MARE NOSTRUM (CAJA GRANADA) FOR A BUYER AT ANDARAX IN TERQUE, ALMERÍA

Notification sent today to our clients who had reserved off-plan properties from the developer, PROMOCIONES INROAL S.L. at ANDARAX in TERQUE, ALMERÍA, informing them that BANCO MARE NOSTRUM (Caja Granada) had lost its Appeal against the First Instance Sentence.

Re: YOUR CASE AGAINST PROMOCIONES INROAL S.L. & CAJA GENERAL DE AHORROS DE GRANADA (BANCO MARE NOSTRUM S.A.)
PO xxx/2012

Please find attached the Sentence from the Provincial Appeal Court Section 1 in Almería.

I am very pleased to advise you that the Appeal filed by Banco Mare Nostrum S.A. has been dismissed and the First Instance Sentence has been confirmed in its entirety.

The final paragraphs of the First Instance Sentence delivered on 1 September 2014 and notified on 3 September 2014 stated: 

“Agree to archive the procedure in respect of PROMOCIONES INROAL S.L. absolving the entity of all the motions that were made against it, having been renounced by the plaintiff, without the imposition of costs.

Fully estimating the Lawsuit filed on behalf of Mr xxxxx xxxxxx & Mrs xxxxxxx xxxxxxxxx against BANCO MARE NOSTRUM S.A. and condemn this defendant to pay to the plaintiff the amount of xx,xxx Euro plus legal interest at 6% per annum on that amount from the date of the judicial claim until full payment with imposition of costs to the defendant”

The final paragraph of the Provincial Appeal Court Sentence delivered on 7 July 2015 states:

“We dismiss the Appeal filed by BANCO MARE NOSTRUM S.A. against the Sentence 83/2014 of 1 September issued by the Lady Judge of the First Instance Court No. 4 of Roquetas de Mar in Ordinary Trial No. xxx/2012 which resulted in the present Appeal,

1. CONFIRM the First Instance Sentence

2. With the imposition of the costs of this Appeal on the Appellant”


So the Provincial Appeal Court has dismissed the Appeal filed by Banco Mare Nostrum against the First Instance Sentence.  The First Instance Sentence has been confirmed in full.

The costs of the Appeal are imposed on Banco Mare Nostrum.

With regards to the liability of the Bank according to its obligations under LEY 57/1968 the First Instance Judge had stated:

“Assessing the evidence it can be concluded that the account Promociones Inroal S.L. had opened in Caja Granada (today Banco Mare Nostrum) was not called a ‘Special Account’, but the essence of the account and according to the criteria previously noted and maintained by various Provincial Courts it can be recognised as having such character.  It has been established that the promotor was the owner of the said bank account to which the plaintiffs paid their off-plan deposit and secondly that the defendant Bank knew that the amounts entered in that account were amounts to finance housing construction.  Therefore, the defendant Bank cannot be exonerated of the responsibility incumbent upon it by law due to the fact that it had knowledge that the account in question was being used by the promotor for the payment of off-plan housing deposits.

It is proven that the money was credited to an account opened by Promociones Inroal S.L. in the bank known today as Banco Mare Nostrum and that account is a special account according to the meaning of Article 1 of LEY 57/1968.  It must be concluded that the bank is responsible under the Article 2 of LEY 57/1968 for failing to demand from the Promotor the corresponding Certificate of Insurance or Guarantee.

Thus the bank is liable to the buyer for failing to fulfil its obligations according to LEY 57/1968 for amounts paid to the bank for the purchase of off-plan property”


Interesting statements from the Provincial Appeal Court are:


“The recent Supreme Court Sentence dated 20 January 2014 has unified the profuse jurisprudence on this subject and understood it as a pioneering standard for the protection of consumers and users.

In addition it states that the failure by the seller to complete the property by the deadline agreed in the purchase contract, according to Article 3 of LEY 57/1968, empowers the buyer to seek the termination of the contract.

The ultimate accolade of this Law has been confirmed by the recent Supreme Court Sentence of 13 January 2015 which confirms the criteria of the Provincial Appeal Courts.  According to this Sentence if the buyers funds are held in a different account to that specified in the Insurance Policy, this is a matter purely between the insurer and the selling entity.  The fact that the buyers funds are not paid to the Special Account does not preclude insurance coverage, since it is an obligation legally imposed on the seller to ensure the funds are paid in the Special Account.  It is an inalienable and indispensible right of the buyer that the amounts are paid in the Special Account and remain secured.  So an obligation that corresponds only to the seller in accordance with LEY 57/1968 cannot be shifted onto the buyer.  

Therefore the allegations of this Appeal by Banco Mare Nostrum are inconsequential.  The alleged breaches of the developer, such as not stating the nature of the Special Account, are also irrelevant.

And contrary to what is said in the Appeal, it is also immaterial whether the appellant, despite all the above facts, has not itself given this account the official status of a Special Account.  Actually in reality it has that status due to the extent that a security is signed against the account and a Guarantee Line (Linea de Avales) is explicitly linked to that account.

The last plea of the Appeal is the rejection of the order to pay 6% interest.  This plea is also rejected.

For all these reasons, the Appeal is dismissed, with confirmation of the First Instance Sentence and imposing the costs against the Appellant Bank”

Congratulations to clients, Appeal Magistrates in Almería Province and CostaLuz-DeCastro teams

Coast of Almería, South eastern Spain

A recent Court Decission by Alicante Appeal Court received at the Law Firm. On legal costs payment and Law 57/68:

( Literal spanish version)

En cuanto a las costas, consideramos que existen serias dudas de derecho derivadas de (1) la necesidad o no de certificación individual de aseguramiento y (2) depósito específico de las cantidades en la cuenta especial  correspondiente, para el nacimiento de la obligación de los avalistas de devolver las cantidades anticipadas, de hecho existe jurisprudencia menor contradictoria sobre el  particular, incluso entre las propias secciones de la Audiencia Provincial de Alicante.

Por lo que no procede hacer especial pronunciamiento en costas en este proceso en  ninguna de las dos instancias.

( which it reads in English as...)

In regards to costs we consider that there are serious doubts of law arising from (1) the need or otherwise for individual certification of specific deposit insurance and (2) payments of the same into an special account for the birth of the obligation of the gusrantoor in order to return the advanced payments , in fact there is  contradictory jurisprudence on the subject, even among their own sections of the Provincial Court of Alicante. It is not appropriate to make a special statement in costs in this process in any of the two instances .

Despite statements of the Alicante Appeal Court above, Supreme Court has already stablished legal doctrine on:

- No need of individual certificate

- No need of deposit into a special account.

FOR THE  BIRTH OF THE OBLIGATION OF THE GUARANTOOR IN ORDER TO RETURN THE ADVANCED PAYMENTS

The beach "El Portet", Alicante, Valencia, East of Spain

HERRADA DEL TOLLO S.L. - BANK ACTION WON IN PROVINCIAL APPEAL COURT AGAINST SGR & BBVA FOR BUYERS AT RESIDENCIAL SANTA ANA DEL MONTE IN JUMILLA

Notification sent today to our clients who had reserved off-plan properties from the developer, HERRADA DEL TOLLO S.L. at RESIDENCIAL SANTA ANA DEL MONTE in JUMILLA, informing them that SGR had lost its Appeal against the First Instance Sentence and our Appeal against the part of the First Instance Sentence absolving BBVA had been upheld.


Re: YOUR CASE AGAINST BANCO BILBAO VIZCAYA ARGENTARIA S.A. (BBVA) & SOCIEDAD DE GARANTIA RECIPROCA DE LA COMUNIDAD VALENCIANA (SGR) – PO xxx/2012

Please find attached Sentence number xxx/15 from the Provincial Appeal Court Section 9 (Elche) inAlicante.

I am very pleased to advise you that the Appeal filed by SGRCV has been dismissed and your Appeal against the part of the First Instance Sentence absolving BBVA has been upheld.

The final paragraphs of the First Instance Sentence delivered on 21 February 2014 and notified on 13 March 2014 stated:


“I estimate the Lawsuit filed on behalf of xxxxxx & xxxxxxx against SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA and condemn the defendant, SOCIEDAD DE GARANTÍA RECÍPROCA DE LA COMUNIDAD VALENCIANA to pay Messrs xxxxxx the sum of xx,xxx Euro with legal interest from 19 April 2007 until the return of the funds with costs expressly imposed on the defendant.

And I entirely dismiss the lawsuit filed on behalf of xxxxxx & xxxxxx against BBVA and I must acquit and absolve BANCO BILBAO VIZCAYA ARGENTARIA S.A. of all claims made against it with the imposition of costs on the plaintiff”


The final paragraph of the Provincial Appeal Court Sentence delivered on 12 May 2015 states: 


“We dismiss the Appeal filed by SGRCV and estimate the Appeal filed by xxxxxx & xxxxxx, against the Sentence of the First Instance Court No. 6 of Orihuela dated 21 February 2014, partially reverse that Sentence in particular the acquittal of BBVA, now jointly condemned with SGRCV to pay Messrs xxxxxx the amount of xx,xxx€ plus legal interest from the date of payment of that amount until full repayment.

Confirm the Sentence appealed in all other aspects”

So in the First Instance Court, SGR was sentenced to refund your off-plan deposit with the addition of legal interest from the date of payment of the deposits until full payment.  Your costs of the First Instance Proceedings in relation to the part of the action against SGR were imposed on SGR.

BANCO BILBAO VIZCAYA ARGENTARIA S.A. was acquitted and absolved of all claims against it.  Its costs calculated according to the amount claimed against it were imposed on you.

However, the Provincial Appeal Court has dismissed the Appeal filed by SGRCV and upheld your Appeal against the part of the Sentence relating to the acquittal of BBVA.

So BBVA are now jointly and severally liable with SGRCV for the refund of xx,xxx€ to you and BBVA’s costs which were imposed on you by the First Instance Court are now void.

In relation to the Costs for the part of the action against BBVA the Provincial Appeal Court has ruled that each party will pay its own costs.

In all other aspects the First Instance Sentence has been confirmed in full.

The costs relating to the SGRCV Appeal and to your Appeal against BBVA are not imposed on any party.  Therefore, each party will pay its own costs in relation to the Appeal.

Interesting statements from the Provincial Appeal Court are: 

“Defaults or internal processing errors between the promotor and guarantor entity, for example, the failure of the developer to submit buyers Purchase Contracts to the insurer for incorporation into the security issued for the purpose of issuing the relevant individual guarantees cannot be attributed to the buyer.  There can be no harm to the buyers due to the neglect attributable to the insurer due to failure in its monitoring obligations, especially under this kind of special law such as LEY 57/1968.

It should be added that that the Order of 29 November 1968 article 4b, authorises the insurer to ‘verify during the period of insurance, documents and data that relate to obligations assumed by the insurer, particularly in respect of movements in the Special Account’.

Therefore the Appeal filed by SGRCV is dismissed.

With regards to the liability of the developer’s bank, BBVA, the failure of buyer’s funds being credited to the Special Account cannot be an obstacle to the responsibility of the Bank in its function as guardian of the Law, LEY 57/1968.  So this co-defendant, BBVA, is also responsible with SGR for the funds paid to the developer’s account in its branches by Messrs xxxxxx”

We are planning quarterly gatherings in Alcaidesa , for legal  tips and advise and some cultural fun. Starting in October.

Do you want to come?

If so, please email us with some suggestions

We will do a review on Horizontal Property Law and will make a good potato omelette in first October meeting. Come!

PROMOCIONES EUROHOUSE 2010 S.L. - BANK ACTION WON IN PROVINCIAL APPEAL COURT AGAINST CAJA RURAL CENTRAL FOR BUYERS AT FORTUNA GOLF RESORT & PUEBLO LA SAL (SAN PEDRO DEL PINATAR)

Notification sent today to a group of our clients who had reserved off-plan properties from the developer, PROMOCIONES EUROHOUSE 2010 S.L. at FORTUNA GOLF RESORT & PUEBLO LA SAL in San Pedro del Pinatar, informing them that CAJA RURAL CENTRAL had lost its Appeal against the First Instance Sentence
 

Re: YOUR CASE AGAINST CAJA RURAL CENTRAL HAS BEEN WON IN THE PROVINCIAL APPEAL COURT

Please find attached Sentence number XXX/15 from the Provincial Appeal Court Section 9 (Elche) in Alicante.

I am very pleased to advise you that the Appeal filed by Caja Rural Central SCC has been dismissed and the First Instance Sentence has been confirmed in its entirety.

The final paragraph of the First Instance Sentence delivered on 10 December 2014 and notified on 17 December 2014 stated:


“Substantially estimating the Lawsuit filed on behalf of xxxxx 16 BUYERS xxxxx against CAJA RURAL CENTRAL SOCIEDAD COOPERATIVA DE CREDITO, and must condemn the defendant to the repayment of the amounts paid on account of the purchase price of homes deposited in the account of the defendant CAJA RURAL in the name of the Promotor PROMOCIONES EUROHOUSE 2010 S.L., allocated as per the second article of this Sentence, amounting to a total of 406,385.52 Euro, plus legal interest from the date of payment to the developer until full payment & legal costs”.


The final paragraph of the Provincial Appeal Court Sentence delivered on 11 June 2015 states:

“We dismiss the Appeal filed by CAJA RURAL CENTRAL SCC against the Sentence of the First Instance Court No. 3 of Orihuela dated 10 December 2014 and fully confirm the First Instance Sentence with the imposition of the costs of this Appeal on the Appellant”


So the Provincial Appeal Court has dismissed the Appeal filed by Caja Rural Central against the First Instance Sentence.  The First Instance Sentence has been confirmed in full.

The costs of the Appeal are imposed on Caja Rural Central.

Interesting statements from the Provincial Appeal Court are:


“Caja Rural maintains that Article 1 of LEY 57/1968 is not applicable because it was not involved in the Purchase Contracts signed between the buyers and the developer and that the obligation to Guarantee the amounts paid by the buyers lies exclusively with the developer. Caja Rural also states that the amounts were entered into an Ordinary Current Account and not a Special Account as required by the Law.

This appeal is not well founded taking into account the arguments detailed by the Judge in the First Instance.  In fact Article 1 of LEY 57/1968, in the first paragraph, imposes on individuals and companies that promote housing construction and who receive payments in advance, the duty to guarantee repayment of the amounts paid by way of insurance or guarantee in the event that construction does not start or does not come to fruition, adding in its second paragraph that sums advanced by purchasers shall be deposited in a special account, adding in the last paragraph that for the opening of these accounts the bank or savings bank, under its responsibility, must require the guarantee to which the previous condition refers to, that is, the guarantee of repayment of the amounts paid by and insurance contract or bank guarantee.  In the same vein we find the first additional provision of LEY 38/1999 of 5 November of the Building Act, insists on guaranteeing the amounts paid in advance by way of insurance compensation for breach of contract and Article 1 imposes obligations on the financial institution through which the developer receives the advance payments from buyers.

Therefore, and since jurisprudence has repeatedly stated that lack of income in a special account is an exception that the insurer cannot raise against the insured, it is clear that the appellant Bank cannot rely on that fact to ignore obligations in respect of the buyers, when the Bank accepted the entry of the amounts paid by purchasers of homes, as proven in the proceedings.

The appellant bank, as has been reiterated by this Court, in a ruling dated 25 June 2010, is a skilled professional that has ‘full knowledge and information of applicable regulations & duties’ and this negligence is punishable.  The appellant Bank knew that Promociones Eurohouse 2010 SL was a company dedicated to selling off-plan real estate and it is meaningless for the bank to allege that they knew nothing about the source of the substantial income received into the developers account opened in their offices.  The fact that the account was a normal current account and not a special account, cannot be attributed to the buyers as has been confirmed by a recent Sentence from the Supreme Court.  It is the duty of the entity that received the buyer’s funds to ensure compliance imposed by LEY 57/1968 and any breach of this compliance creates the liability of the entity.  As rightly established by the First Instance Judge, Caja Rural should not have accepted the amounts paid by buyers to Promociones Eurohouse 2010 SL without first ensuring that the promotor had assumed its legal obligation to ensure the return of these amounts paid in advance and may not now try to avoid its responsibility to the buyers of off-plan homes”

Did you know you can legalize your house in Andalucía? There are new regulations since 2012.

This course of legalization is approved by Local Councils which have previously passed specific regulations on this.

What does it really mean for me?

• It will allow registration of your house in the Land Registry.
• It will allow you to have Notary deeds of the house (public title)
• It will allow you access to basic services such as water and light, with utility companies.
• It will allow you to have future municipal licenses for repairs and maintenance.

Am I eligible?

Yes, you might be eligible for this if your illegal house was finished more than 6 years ago and there are no open ongoing administrative disciplinary or criminal proceedings.