QUESTION NUMBER ONE: TAX VALUE OF PROPERTIES IN SPAIN
Name: Steve
Comment: Hi Maria
I am non-resident and in 2011 I sold my apartment in Andalucía for 55,000 Euros in order to buy a nearby villa. In 2013 I received a 'complementária' from AEAT . The authorities valued the apartment at 110,000 and I was forced to pay Capital Gains Tax on 55,000. There was no 'negro' involved in the sale.
My question is this....
If I want to sell my villa, which I purchased at a low price in 2011 due to the 'crisis', is there a pre-sale valuation that would be acceptable to the AEAT so that, if I sell the property for this valuation price, they will not force me to pay more CGT?
ANSWER. Yes, there is. Tax value of properties is calculated by multiplying the cadastral value by an index which is made public every year for each municipality. With your IBI receipt and a search on the index corresponding to municipality property is, you can easily calculate this.
QUESTION NUMBER TWO: INTERNATIONAL ENFORCEMENTS AND REPOSSESSION PROCEDURES
Comment: We have paid half fees to Spanish solicitor over a year ago to negotiate with Sabadell to take back our house in Spain instead of just giving keys, the bank has now passed case to UK solicitors having Spanish lawyer working for them now our Spanish solicitor is advising us to let bank repossess the house as which will drag another 2 yrs
ANSWER: The best action now is to reiterate your dation proposal to the Bank and, if this is not agreed, to defend your dation rights along the repossession procedure so your process and dation rights are fully respected and the valuation of the house at the auction is made according to Law.
In regards to possible repossessions in the UK: It is important to pay attention to the process used by the Bank as we have seen some legal representatives of Banks taking advantage of the lack of understanding of European Enforcement instruments to make an illegal use of these in order just to threat clients and have them paying what they cannot.
When defending your rights within the enforcement: Have your lawyer to check on abusive clauses and make them to play its part among enforcement causes as European Courts are being very protective against these abuses by financial institutions.
QUESTION NUMBER THREE: SEASONAL RENTAL CONTRACTS IN SPAIN
Name: Douglas Crum
Comment: Are 11 month long term rental contracts, as offered by most British agents, legal? Most say that they are but my Spanish friends say that they are not.
ANSWER. Any time term is legal in contract rentals in Spain. The point is that, against what many UK people think, the fact that the contract is made for 11 months does not automatically make it a seasonal contract. It can be a home contract (with its corresponding safeties and guarantees for stays) is the house is used as a family home.
Main protection of HOME rental contracts in Spain is in regards of obligatory contract extensions.
QUESTION NUMBER FOUR
Name: heather
Comment: I am in 2 months arrears with my Spanish mortgage the house will be sold in July and the bank will be repaid in full. The bank Sabadell is going to send my file to the legal department what can I do. Thank you
ANSWER. I would communicate to the bank the serious offer you have on your house so they will stop the process. But this needs to be in written and if you can, with the aid of a lawyer.
This same lawyer will be able to monitor the full enforcement procedure both in Spain and if it was started in the UK
QUESTION NUMBER FIVE
Name: Alan Dobie
Comment: We have a Spanish will leaving our property to our spouse. We have been told that on the first death 50% goes to the spouse and 50% goes to our children. We think someone has got their information wrong, can you please clarify.
We have UK residency and nationality and have property assets in the UK by the way.
ANSWER.
At present, with no application of Brussels IV ( which will start in August 2015), your inheritance is regulated by UK Law as by application of International Privsate Inheritance Law, nationality will apply and as you have estate assets in the UK, the United Kingdom will not forward your probate to Spain
From August 2015 on, as your residency is in the UK, your estate after death will keep being regulated by UK Law.
If you make a Spanish Will, this will be just for the purpose of making paperwork easier for your heirs in regards to your Spanish property.
Accordiong to UK Law, which as said is applicable to your future probate, you have full freedom to leave your assets to whoever you consider necessary. Nothing will pass to your kinds if you do not decide so.
QUESTION NUMBER SIX
Name: Jacqui
Comment: We have a property worth approximately 110,000 Euros. We have made a Spanish Will with both of us leaving the property to our daughter. How much Inheritance Tax will she have to pay? Also if one of us died would we have to pay anything on the dead partners (husband or wife's share? Many thanks.
My nationality and my husband's nationality are British. We are both Spanish residents and have been living here for 8 years
ANSWER. Regional rates and allowances will aplly to each portion of your heirs, according to last decision by the European Union.
From June 2015, law applicable to your inheritance will be that of your residency unless you choose your nationality one. If you want to keep full freedom for assets distribution after your death, I would advise you to make new wills choosing Law of nationality.
QUESTION NUMBER SEVEN
Name: Pamela Bissell
Comment: I have a timeshare in Tenerife. It was in both my husband and my own name. My husband passed away in May. I want to put the timeshare in my own name. My husband left all of his estate to me including the timeshare in his will. However I have found out from various lawyers that it will cost over £2,000 to have the Escritura change to myself only. Is there any other way of doing this changeover which would be less money.
ANSWER. If your timeshare was sold to you according to Law, which established the need of Notary deeds and Registration of rights, work involved is costly as a new Notary deed and registration is necessary and there are taxes involved. This together with the legal work by the Lawyer. If it was not, and just a private contract was made--- as it happens in many cases--- just a communication of your spouse´s death and will to the timeshare company would be necessary. In that case, I would encourage you to have private document converted into Notary deeds as soon as you can. If your property deeds were not adapted to rules passed in 1998 in Spain, you can proceed to the cancellation of the timeshare contract.
QUESTION NUMBER EIGHT
Name: Allan morocco
Comment: What can be done to non payers of community fees who continue to rent their property and use the amenities? The community that I have my property on seems unwilling or unable to take action to evict or stop the owner renting.
ANSWER. According to opinion of several judges and magistrates of Appeal courts being asked , Community is “not empowered and cannot punish those members that do not pay their fees by prohibiting to them the use of communal services”. That doctrine was based on seven magistrates’ decision. However, October 23rd 2012 decision by Notaries and Registrars General Office stated that our Constitutional Court has already stated that common interest of a community of owners justify some limits to some use rights of the individual owners. Taking this reasoning as the base, this Notaries and Registrars body states that lack of payment of maintenance fees can justify a restriction on the use of pool or sport courses by owners. In relation to renting, there is nothing a Community can decide on rentals as this comprises the individual property too. Of course tenants can be banned from using common elements.
These matters need to be decided by Community of owners by majority.
QUESTION NUMBER NINE
Name: Linda Lees
Comment: How important is it to have Spanish will if your house in Spain is a second home and you are a permanent resident in the U.K? I read an article from a British company that said you do not need the Spanish will, it is simply a money making exercise for Spanish lawyers. Is this true?
ANSWER. Having a Spanish will if you are a UK resident will make things simpler for your heirs as they will not have to make the UK probate valid in Spain. It is not necessary.
QUESTION NUMBER TEN
Name: Sheila Silvester
Comment: I own an apartment with also my 2 Sons. Will my Sons automatically inherit my share of the Property when I die? Or would you suggest I make a Will anyway. If I don’t make a Will what would happen?
British nationality and British residency
Thank you.
ANSWER. Initially you need no new will as having your residency in the UK, Brussels IV do not apply. Just if you want to make things easier to your future heirs, Spanish will be adequate, but not strictly necessary.