Ads, being about to finish the answer to your questions in your same text, computer shutted down! Work lost.
Starting again,nswers a in green below:
Many thanks and in answering your informative post Maria please see ongoing queries and observations identified in red.
Ads: For lawyers contribution to better Justice: their own professional exercise mainly. Then, possible reports to General Council of Lawyers, and General Council of Justice
My concern is that so long as there is little reporting back by legal firms to the powers that be, or suggestions by lawyers for workable solutions to mitigate these “recognised and compromising loopholes”, it has the potential to do a grave disservice to those good law firms (who as we know struggle to gain timely justice with the status quo and proliferation of Bank appeals), since there is sadly the potential, as has already been identified, to conclude that “lawyers are only in this for the cash”, directly benefiting from this proliferation of litigation, and demonstrating little willingness to follow through with identifiable workable solutions, solutions that have great potential to mitigate this growing instance of litigation and legal intervention, and in so doing relieve the strain on the administrative and judicial systems.
I do agree a risponsable and honest lawyer needs to contribute to better laws and justice working.
So Maria, do you recognise the solution for, and benefits from mandatory registration and debt certification, and is it worthy of feeding back to the powers that be?
In cases where number of properties will create a situation of control by same owner, possibly an obligation to the Judge to communicate this to Land registry and Property Administrator. It might also be, in my opinion, a task to be developed by Property Administrators in the fulfilment of the tasks they are hired and paid for.
Hugh_Man: Banks not registering repossessed properties: Judge issuing a property award after repossession does not have the obligation to send a notice to Land Registry. It is the new owner who has the faculty to do so.
This is not a secure system, and as has been demonstrated, pricing structures for “voluntary registration” act as disincentive to adherence. It is dependent upon honest and ethical practice, leaving no option but to request legal intervention when problems arise, rather than ensure safety mechanisms are in place at source. Registration should be made obligatory prior to transmission to act as adequate safeguard and to reassure that information is secure and reliable.
Registration previous to transmission is obligatory.
The current scenario, where many properties owned by a Bank after repossession in the same community, and lack of payments of community debts by these affect dramatically the living of the community of owners is unique, therefore, not envisaged by Civil Procedure Act when regulating Auctions and Repossessions. Of course there are other legal remedies to fight against this.
Maria how can this possibly be considered “unique” given the current growing debts now owed to communities by the Banks? It is unique in legal history despite being currently massive in numbers. This needs to be reviewed and reassessed based upon growing evidence of Bank abuse and manipulative ploys to avoid payment of outstanding debt, plus the growing dependence upon judicial action in order to counter such abusive behaviour, which worryingly also places greater stress on the already overstretched justice system. These “other legal remedies” are reactionary solutions after the event and fail to prevent problems at source. Still remedies till a better solution exist. They are extremely time consuming and costly for both communities and the Spanish Justice system alike, and sadly do little to reassure purchasers that they too will not be exposed to future abuse by the Banks which has the potential to financially compromise their communities. I agree.
As a general try to solve the problem, a request to Bank of Spain should work.
Re Bank of Spain regulating their members, didn’t Keith Rule identify quite some time ago that the Bank of Spain have no powers to regulate their members, nor did they demonstrate any willingness to address the major problems associated with Bank Guarantee abuse when Keith went to great lengths to identify the problems in writing to them, problems that have subsequently required YEARS of costly litigation and in that process have impacted court administration systems and the judiciary across the country?
Bank of Spain in reinforcing its regulating faculties and obligations.
What message/reassuarance does this convey in terms of the Bank of Spain’s willingness to address yet another growing problem relating to Bank’s ongoing behaviour and manipulative (and illegal?) ploys to avoid their responsibilities and financial obligations according to law?
A communication to Bank of Spain is worth it. With proofs.
Social impact?….. I would suggest there is a major social impact that needs to be reported back by good lawyers in this regard, Maria.
As a specific solution to individual communities: Land Registry plot numbers are on the Horizontal Property Division deed so, after searching on Land registry on lender Bank which has repossessed, and before issuing a lawsuit--- as there is no clear record of ownership for a Judge to admitt the action--- Judge can request the bank to show results of repossession.
Again another loophole exposed as there is no clear record of ownership without having to resort to legal action.
You can try an out of court request to the Bank first, once the name of Bank is located a the Notas Simples, and see what happens.
Banks, as has been demonstrated to date, are doing all in their power to be obstructive in their behaviour so doesn’t this imply that they will be highly unlikely to settle out of court? Very possibly. Mandatory obligations would mitigate this unwillingness by the Banks to demonstrate good faith. This solution would enhance (and reassure) innocent owners/purchasers that their rights are being adequately recognised and enforced at the point of transference of property. They should not be exposed to a system where known loopholes of this nature and magnitude continue to be open to abuse.
Outstanding questions remain:
- Is it true given the existing system that “A nota simple has no legal validity as proof.If there are any errors in it no one is held liable.”
Nota simples are informative but that does not mean errors of them cannot be claimed against anyone.
- Is it true that “If you require a legally accepted binding document you have to request the more expensive ‘certificación registral’ signed and sealed by the Land Registrar himself which is ’authentic’ (it is a public document) and can be used in any legal proceeding. If there are any errors in it, the Land Registrar is held personally liable and will have to pay compensation to the affected person out of his professional indemnity insurance cover." How many are aware of this and has anyone endeavoured to follow this through?
Lawyers know ( or should know). They should advise their clients in due and effective manner.
- Is it illegal (or a criminal offence) to knowingly submit a clause into the Title deeds suggesting no debt exists when this is untrue? It is illegal , might be criminal and Notaries liabilities might exist too. Another abusive ploy by the Banks? Have clauses of this nature now been defined as illegal and if so could this also be deemed part of the MANDATORY process/effective checks required prior to transference of property?
There is a strict control by Notaries and Registrars on this
Is it also true that there is no facility in the existing system to register offplan deposits against properties and that there appears NO RECORDABLE MECHANISM IN PLACE TO IDENTIFY THESE DEBTS, given Ley 57/68 defines inalienable rights to return of these deposited monies in the event of developer breach? . (We are talking of millions upon millions of Euros here as there have been many thousands affected)?
Law 57/68 and current Law 20/15 built a system where Banks are guardians of these deposits and their return. That is why consolidated case Law in favour of buyers is so meaningful.
If so, this identifies yet another major vulnerability (loophole) in the existing system, which also has implications relating to Bank repossessions as being discussed in this thread.
Note there are many who for whatever reason have not been able to take legal action against the Banks but whose deposited monies still sit in unrecognised Bank Accounts, and Banks will have presumably repossessed these properties (with the intention of selling on) following developer bankruptcy.
So my question is, for those who have not taken legal action to date (for whatever reason, and there are many ligitimate reasons) can Banks sell on these properties in the interim period without any recognition/recording of outstanding financial obligations relating to these deposited monies associated with the property, and will this failure to officially record these debts compromise their ability to subsequently regain these monies? They can as this does not compromise these buyers´actions against Banks. Doesn’t this beg an ethical question of the Banks that monies that do not belong to them are being knowingly “hidden” and allow them the opportunity to exploit compromising loopholes in the existing recording/registering mechanisms?
Law 57/68 and its continuedly precised Case Law covers this.