Author: Gustavo Calero Monereo

MORTGAGES: THE WELL-KNOWN ECJ RULING ON THURSDAY 14TH OF MARCH

Written by Gustavo Calero Monereo on 13 May, 2013. Posted in euribor, lawyer, legal advice, mortgages, property law. No Comments on MORTGAGES: THE WELL-KNOWN ECJ RULING ON THURSDAY 14TH OF MARCH

HIPOTECA 2 — European vs Spanish legal protection for consumers with mortgages

About a month ago, the European Court of Justice (ECJ) ruling caused a great stir among Spanish media. This court judgment has been originated from a preliminary ruling handed down by the Mercantil Court nº 3 of Barcelona, as a result of the mortgage foreclosure procedure between an individual and La Caixa Bank. This preliminary ruling intends to clarify if Spanish legislation complies with the consumer protection requirements regulated by the European Directive 93/13/ECC. This Directive was approved to ensure consumers’ protection against their disadvantageous position with respect to a professional when contracting certain services.

In short, here below are the facts intended to be disclosed before the ECJ:

First: In regard of Spanish civil procedure in the matter of mortgage foreclosures, it was intended to be disclosed if Spanish regulations fail to comply with the aforementioned European Directive protecting consumers, because in Spain the “judgment debtor” cannot claim the existence of unfair terms set forth in this contract. In Spain, if judgment debtors want to claim the existence of unfair terms in this type of contracts, they should initiate different court proceedings which may not paralyse the mortgage foreclosure proceedings; for example, a situation may arise where a property is auctioned due to the unpaid mortgage and the judgment debtor may also obtain a favourable court decision declaring that the contract of that mortgage is null and void once that the property has been auctioned. This may arise because the mortgage foreclosure cannot be paralysed despite the contract may be considered to be null and void.

Second: regarding the substance of the matter, the concept of “unfair term” of the Directive is intended to be clarified in order to assess if the terms of the mortgage contract—subject matter of the main action and undersigned between an individual and a bank, are of unfair nature; these terms are the following: early termination of long-term contracts, fixing of default interests and the liquidity agreement. These are “cut and paste” terms (similar terms) appearing in any mortgage contract which anybody may have executed with a bank.

Regarding the first issue, the ECJ is clear and unambiguous declaring that the Spanish procedural regime reduces the effectiveness of the protection pursued by the Directive, because:

a) Possible unfair terms of the main contract cannot be challenged in the same mortgage foreclosure proceedings which may finish with the property put up for auction.

b) Mortgage foreclosure proceedings cannot be paralysed by the courts, although they know that the judgment debtor has filed court actions challenging possible unfair terms.

It is worth mentioning that by virtue of a repeated European case-law, the national court is obliged to consider of its own motion the unfairness of all contractual terms under this Directive.

Regarding the second issue, the ECJ answer is not very revealing, or at least automatically, in order to know whether a term is unfair or not, as the ECJ considers that the national court is the only competent body to interpret and apply the national Law. However, the court ruling states that to decide if a term causes an imbalance to the detriment of the consumer in relation to bank—national regulations must be taken into account if that agreement is not signed between the parties, the court shall assess if this term leaves the consumer in a less favourable situation than this provided by the national Law in force in case this term exists. For example, if the term fixing the default interest in the mortgage contract (normally around 20%) is an exception and there is no other similar legal interest in national Law (i.e. default interest applicable to commercial transactions is at 7.75%), then this term may be considered to be unfair; an open-and-shut case, judge for yourself.

Finally and regarding ongoing and future mortgage foreclosures in Spain, it is worth mentioning that two rulings have been already issued in the last three weeks declaring mortgage contracts to be null and void, because default interests were unfair.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

BUILDING PERMIT INVALIDITY AND CONSEQUENCES FOR THIRD PARTIES IN GOOD FAITH

Written by Gustavo Calero Monereo on 5 March, 2013. Posted in assimilated out of ordination, building permit, english speaking solicitor, Featured, lawyer, legal advice, non developable land, out of ordination, Property law, property law, solicitor, solicitors Nerja, torrox, undeveloped land. No Comments on BUILDING PERMIT INVALIDITY AND CONSEQUENCES FOR THIRD PARTIES IN GOOD FAITH

Invalid Andalucian building permit/licence

One of the legal problems affecting some owners of properties on non-developable land has originated in the last ten years with the invalidity of building permits, which protected these constructions on non-developable land. This invalidity has been obtained in most of the cases by means of the corresponding contentious-administrative court proceedings.

First of all, the invalidity of a building permit would imply the demolition of what has been built under this permission on specially protected non-developable land; in case of common non-developable lands (without special protection), this invalidity may imply the demolition if more than four years has not elapsed between the end of the construction and the beginning of contentious-administrative proceedings or the invalidity procedure ex-officio by the Town Council. After March 2012 six years should have elapsed.

From a legal point of view, the main problem lies in the third party in good faith, included in Article 34 of Spanish Mortgage Law, who purchases a property to the former owner who had a building permit to build, and later on, he finds out that this permit has been challenged by contentious-administrative jurisdictional courts and found null and void by final judgment before the sale execution; or he finds out that there is a contentious-administrative proceedings going on when he bought the property and has not been finished yet. Therefore, sooner or later a judgment may be received stating that the permit is invalid.

The third party in good faith is not able to know about these facts because until the 1st of July 2011 it is not compulsory to register in the Land Registry the invalidity of the building permit ordered by final judgment or resolution ex-officio by the Town Council. This modification was incorporated by the Spanish Royal Decree-Law 8/2011 approval modifying some articles of Spanish Land Law. For this reason, this third party purchaser is not able to know about this situation, becausethe Land Registry has not recorded in most of the cases the decisions taken on building permits which may affect their property rights.

The abovementioned Royal Decree-Law approval has set the compulsory registration in the Land Registry of the legal condition of the property, so that the Public Administration bodies will be responsible if this notification is not served to the Land Registry when contentious-administrative proceedings are affecting the building permit granted to the property. Articles 51 and 53 of Spanish Land Law (Royal Decree-Law 2/2008 of 20th of June) set forth this compulsory registration, so that the third party in good faith may be able to know about the legal situation of the property by looking up the Land Registry and then decide about buying or not this property knowingly and intelligently.

However, regarding the abovementioned information, a problem arises when considering the facts previous to the 1st of July 2011—whether the proceedings are finished at this date or they are not resolved yet, because the abovementioned compulsory registration in the Land Registry was not in force as to this date as former regulations were applied.

In my opinion, the main problem of Spanish legislation in this field and its most frequent interpretation by Spanish case law, lies in the fact that the third party in good faith accessing the Land Registry is not protected by the Registry certification and the legal certainty that the Land Registry must provide, prevailing the planning legality support over the registry certification. We understand that is not abiding to law, because the third party in good faith, legal owner and unaware of the legal situation concerning the building permit, shall not be subject to the negligence of Public Administration. In the interest of legal certainty, the rights of the third party in good faith should prevail over the planning law enforcement.

Apart from the abovementioned situation of the third party in good faith, the core problem lies in the fact that the property right in Spain does not enjoy a special protection. It is also worth mentioning that Spain is subject to comply with the Rome Convention, which considers the property right to be a fundamental right with a special protection. Concerning its interpretation of property right, The European Court of Human Rights (ECHR) itself has demanded the following:

1) Those affected by administrative or court proceedings which may imply the loss of their assets shall have an effective and real opportunity to defend their situation.

2) Any deprivation of a property to his owner due to the general interest—as the enforcement of planning law, requires a previous compensation for this deprivation. In fact, a recent resolution of the ECHR of the 31st of January 2013 by cautionary measure has cancelled a demolition in Cañada Real (Madrid) until the Town Council provides an alternative accommodation to the family occupying the property and the outlined underlying matter is resolved. In this case, we refer to the demolition of a property in a shanty-town located in specially protected land and without building permit.

Therefore, the Spanish legal system should reconsider certain substantive decisions providing the property right with a fundamental nature and protecting it. As a result of this, the protection of the third party in good faith should be one of the cornerstones of this protection, because this third party must not bear the damage of the unlawful conduct of Public Administration when granting these building permits, both in these cases where the invalidity proceedings were not entered in the Land Registry and were not available and those cases where proceedings are initiated against the building permit once the third party in good faith is the new owner.

In addition, these owners, who built their properties with the corresponding building permits granted by Town Councils, should not be deprived of their property right by means of the property demolition without compensation to cover their loss, as this demolition is originated by the negligence of the Town Council and not by the owner.

Spain should ensure compliance with its obligations as an EU Member State, as the property right concept of the Rome Convention and the European Court of Human Rights (ECHR) case-law is obvious in this regard. Therefore, we understand that this Convention is being infringed by Spain, apart from the fact that the current situation contribute to legal uncertainty.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

BUYING YOUR HOME IN SPAIN BEFORE THE 31ST DECEMBER 2012

Written by Gustavo Calero Monereo on 15 November, 2012. Posted in Capital Gains, developer, english speaking solicitor, Headline, Income, Property law, taxes. No Comments on BUYING YOUR HOME IN SPAIN BEFORE THE 31ST DECEMBER 2012

In this year we have published several blog articles regarding tax changes on property subjects which the Spanish Central Government has passed over this year. In that regard, the deadline to implement most of them finishes on the 31st of December.

As a requirement to increase tax revenues, this new year will bring the removal of some tax reliefs which are currently enjoyed by home buyers in Spain.

From the 1st of January, home buyers in Spain should consider that the following tax incentives will disappear:

1) 50% tax exemption on capital gains obtained for the future sale of the property which had been purchased before the 31st of December 2012.

2) The Spanish VAT rate will increase from 4% to 10% for new housing purchases.

3) Tax deduction for main residence purchases, applicable in the event of tax residence in Spain.

Tax saving when buying a home before the 31st of December may become a very significant factor to keep in mind for those looking for a property in Spain and hesitating about different alternatives to take a decision. In these cases, we recommend them to make up their minds before the end of the year in order to take advantage of the above mentioned tax relieves.

Furthermore, sellers have also a reason to sell before the 31st of December—from the 1st of January 2013, Spanish Plusvalia (municipal capital gains tax on land) rate may increase from 66% to 150%, depending on the municipality where the property is located.

It is also worth mentioning that Town Councils reviewing cadastral values in the last 5 years were obliged till now to apply a 40% to 60% reduction on the resulting payable fee for Plusvalia tax. However, from the 1st of January 2013 this obligation will disappear—then, each Town Council may decide whether to apply or not this reduction. Regarding the current economic situation of most Town Councils, all of us may have to get use to the idea that just a few of them may decide to apply this reduction.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

PROPERTIES ON NON-DEVELOPABLE LAND AFFECTED BY RECENT FIRE IN COSTA DEL SOL

Written by Gustavo Calero Monereo on 6 September, 2012. Posted in Andalucia, assimilated out of ordination, english speaking solicitor, Featured, lawyer, malaga, out of ordination, property law, undeveloped land. No Comments on PROPERTIES ON NON-DEVELOPABLE LAND AFFECTED BY RECENT FIRE IN COSTA DEL SOL

As a result of the terrible fire initiated last Thursday 30th in Coin, an estimate of 100 to 200 properties built on non-developable land within the municipal area of Coín, Mijas, Marbella, Ojén and Alhaurín el Grande were severely damaged and some of them completely ruined.

In this year 2012 the Decree 2/2012 for the regulation of buildings and scattered rural settlements on non-developable land in Andalusia was passed by the Andalusian Regional Government in January to put a stop to the problem of thousand of properties on non-developable land. However, this Decree does not currently apply nor does it mean the legalization of these properties, as it was already discussed on once of our previous article

According to the above mentioned Decree, most of these fire-affected properties are considered assimilated to out of ordination housing, as they were built without construction permits or infringing their condition and the municipal General Plan for Urban Planning PGOU. Therefore, no measures can be adopted to recover their legality, which has been disrupted over time and they cannot either be legalized. The only permission authorized by this Decree is “…works for the repair and maintenance which may require the strict maintenance of the security, occupation and health standards of the property” (Article 8.3 of the Decree).

In the event of some fire-affected properties considered out of ordination—properties built in accordance with the municipal PGOU, but considered “out of its ordination” after the PGOU modification, the permitted construction works shall be provided by the municipal PGOU, which is currently under development in most of the municipalities. The Andalusian Town Planning Act L.O.U.A. shall be also considered as it provides that “…only repair works for the strict maintenance of property occupation or usage…” as well as “…exceptionally partial and circumstantial works may be permitted for the property consolidation…”. It is worth mentioning that only a few of these properties may be under the “out of ordination” condition.

This restriction or limitation to alter or renovate properties on non-developable land is provided by the definition on the Decree for “scattered rural properties”, which are included within the “out or ordination” concept and its variant “assimilated”. In accordance with the case law, this concept has been defined as “constructions to disappear once their useful life possibilities finishes—the “out of ordination” condition aims the usage of property until it finishes over time, ends up as a ruin and naturally disappears. For this reason, the Andalusian regulation always provides the granting of permits for this type of constructions for the strict maintenance and under exceptional circumstances.

The Decree does not provide the legalization of these properties. In fact, part of the status for these “assimilated to out of ordination” properties considered as illegal, makes them to be given a definition and their use limited, since no measures can be taken to protect their legality, so that they are “attacked”, as too much time has elapsed since the were built.

In the event of a disaster as fire, flood, earthquake, landslides, etc…, in which a property is in ruins or very damaged and cannot be used again for the purposes to be occupied as a residence, if we abide by the current regulations on these events, it would be very complicated to grant a construction o repair permit for these properties, since it is against the concept of “out of ordination” and “assimilated to out of ordination” provided by the Decree.

The problem lies in a Decree which does not give any solution to the current legal condition of these properties, which have been tolerated by the Andalusian Regional Government and Town Councils for many years. During all these years, nobody has done anything at all on this matter and for that reason no legal measures can be legally adopted to restore their legality.

According to the first political reactions read on the papers about the burned properties, it seems that each particular case may be studied. In some cases, a forced and exceptional interpretation out of the legal framework would be adopted, so that those families with just one house would be allowed to rebuild and live on their non-developable lands as they did before the fire. The problem of this “shortcuts” to implement what the legal regulations do not provide is that a precedent is set, so that in the future event that any of the owners of the more than 100,000 properties built in non-developable land in Andalusia had a disaster of this kind, aren’t they also entitled to receive a similar treatment from the Public Administration? For this reason, the problem lies in a Decree for appearance’s sake, which does not solve the problem and is currently open to doubt in this type of situations.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

TAX EXEMPTION WHEN BUYING A PROPERTY BEFORE 31/12/2012

Written by Gustavo Calero Monereo on 6 June, 2012. Posted in Capital Gains, discount, english speaking solicitor, Featured, Headline, Income, legal advice, malaga, NON RESIDENT, property law, resident, solicitor, taxes. No Comments on TAX EXEMPTION WHEN BUYING A PROPERTY BEFORE 31/12/2012

Regarding the current financial situation, which is reflected in the drop of property sales in Spain every three months, the Spanish Government has passed a new tax exemption. This exemption tries to promote the sale of properties and may become very interesting for both individuals and bodies corporate considering buying a real estate property in Spain in the short term, whether they purchase commercial premises, homes, offices, garages, plots, storage rooms, etc.

On the 12th of May 2012, the Central Government passed the Spanish Royal Decree-Law 18/2012 of 11th of May on the restructuring and sale of the property assets of the financial sector. This regulation included in its First, Second and Third Final Provisions the tax exemption for bodies corporate and individuals, whether resident or non-resident in Spain. This reform law allows all those buying a property from the 12th of May 2012 till the 31st of December 2012 to pay taxes only on the 50% of the capital gains tax when selling the property subsequently, whether in 1, 5, 10…etc years, while the remaining 50% is free of charges.

This exemption may save an important amount of money, because if a property is currently sold in Spain, capital gains are taxed at 21% for non-residents (19% from 2014), at 27% for resident taxpayers in Spain (21% from 2014) and at 30% for bodies corporate.

Here we present an example: imagine you are thinking about buying a property in Spain considering the current market opportunities; the price for this property may be EUR 200,000; the following eventual scenarios may occur according to the date of purchase when selling this property, for example, in 2017 for a sale price of EUR 270,000:

1) Non-resident taxpayers: EUR 70,000 of capital gains at 19% makes a total payment of EUR 13,000; if the purchase is performed before the 31/12/2012, the total payment would be EUR 6,650.

2) Resident taxpayers: EUR 70,000 of capital gains at 21% makes a total payment of EUR 14,700. If the purchase is performed before the 31/12/2012, the total payment would be EUR 7,350.

3) Corporate: EUR 70,000 of capital gains at 30% makes a total payment of EUR 21,000. If the purchase is performed before the 31/12/2012, the total payment would be EUR 10,500.

Obviously, this tax saving is not definitive in order to decide whether to buy a property or not in Spain, as it is not possible to know whether prices may go down much more nor the gains resulting from the eventual property sale. However, this fact may be a helpful factor to take a decision for those considering buying a property, especially for those non-speculative potential buyers whose main purpose is to enjoy this property for many years; thus, the longer they own the property, the greater the capital gains may be when selling it. Look at the figures and draw your own conclusions.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

HAVE YOU ALREADY PLANNED YOUR INHERITANCE TAX?

Written by Gustavo Calero Monereo on 27 February, 2012. Posted in Featured, Headline, Inheritance Tax, lawyer, legal advice, PROBATE LAW, resident, taxes, wills. No Comments on HAVE YOU ALREADY PLANNED YOUR INHERITANCE TAX?

Residency avoids Andalucian inheritance tax

The Inheritance tax imposes taxes on an inheritance received because of death. This tax is paid after a person’s decease and the heir is the taxpayer legally bound to pay it. It shall be paid within the following 6 months since the person deceases. Here below we present an example in order to obtain a better understanding on this tax:

Mr. Smith deceased last January 2012; once he retired and sold his home in England in 2003, he moved together with his wife to Andalusia. Then, they bought a small semi-detached house with very nice views to the sea, which they enjoyed together for all these years.

After Mr. Smith’s decease, his wife initiated the testamentary procedures and she was surprised when she found out that she had to pay 15,490.82€ for the Inheritance tax when inheriting her husband’s estate.

Why did she have to pay such an amount?

Assessed value of the 50% of Mr. Smith’s property__125,000.00 €

Money in Mr. Smith’s current account____________10,000.00 €

Total amount of Mr. Smith’s estate______________135,000.00€

Mrs. Smith’s Inheritance tax payment total account: 135,000.00€ minus 15,956.87 € (reduction allowed because of the beneficiary’s relationship), equals 119,043.13€ (taxable income). According to the current assessment scale, the result is a total tax due of 15,490.82€. That is to say, the widow had to pay 13.01% of the estate total value awarded.

How could this payment have been reduced? First of all, Mr. and Mrs. Smith should have been registered as residents in the municipality of the Town Hall, called in Spain Padrón Municipal, when they bought their home because heirs are allowed to benefit from some tax reductions for Inheritance tax purposes when proving their residence in Andalusia for at least two years and a half during the last five years. A certificate of registration as a resident in the municipality is required to prove this fact.

If Mr. and Mrs. Smith had been registered as residents in the municipality, the widow would not have had to pay any Inheritance tax, because the heirs-residents in Andalusia next of kin of spouse are tax exempt from paying Inheritance tax when the value of the awarded estate does not exceed 175,000.00€, and the heirs pre-existing wealth is less than 402,678.11 €uros.

Apart from this tax exemption, other tax exemptions are applied, as for example, 99.99% reduction when the transferred home has constituted the habitual residence of the deceased. The certificate of registration as a resident in the municipality is required one more time to prove it.

In Spain, Inheritance tax is administrated and collected by regional governments, so that they establish their own regulations to be applied within their own region. In this case, the above mentioned tax exemptions are applicable in Andalusia.

Mr. Smith’s example has been presented above, because many of the foreign citizens who are resident in Spain declare in their Last Will that the survivor spouse inherits the whole of the deceased’s estate. Then, we wanted to provide a simple and practical example related to Inheritance Tax, taking into account that it is essential to make one’s will in Spain only for the estate placed in Spain in order to make the legal procedures easier.

In addition, the Inheritance Tax in Spain is considered a progressive tax; therefore, the higher the value of the inherited estate, the bigger the tax burden for the heir. Furthermore, the heirs’ degree of kinship may be also penalized, so that the deceased’s cousins or friends may pay more than his wife or children for the same awarded estate. For example, if the total value of the inheritance is 400,000.00€, the deceased’s wife or child non resident may pay 27%-28% approximately of this amount for Inheritance Tax, that is, 112,000.00€; on the other hand, the deceased’s cousin or friend, resident or not resident in Andalusia, may pay the double—about 224,000.00€.

Some financial products, as Life Insurances, are very interesting in order to reduce the tax effect for heirs—pursuant to legal provisions, this type of products are firstly planned to pay the heir’s Inheritance tax and any residuary estate may become part of the heir’s estate.

A good tax planning is important to minimize the fiscal effects of the Inheritance tax. Most of the times, it is a question of looking at the figures and analyzing what is the most interesting decision depending on each particular case.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

Differences between the Golden Visa and the non-lucrative visa

LEGAL COUNSELING: “IF YOU BUY CHEAPLY, YOU PAY DEARLY”

Written by Gustavo Calero Monereo on 5 November, 2011. Posted in agent’s services, discount, Featured, fees, Headline, Inmobiliario, lawyer, legal advice, malaga, PREVENTION, property law. No Comments on LEGAL COUNSELING: “IF YOU BUY CHEAPLY, YOU PAY DEARLY”

Some months ago, a foreign prospect client, who we have come to know as “Mr. X”, came in our offices. He requested some information regarding sale procedures, legal work and our professional fees.

After the first free appointment, in all honesty he commented to us that he had contacted a professional offering a 40% cheaper fee than ours. However, he would be interested in contracting our services provided that we could offer him a discount.

At that moment, we considered which option to adopt; naturally, we wanted to win this client, but we also knew that the rural property, which he wanted to buy, required a quite complex searching process.

At the end, Mr. X was offered a “courtesy” discount in our fees, which was not close to the low price offered by the former professional. Finally, Mr. X decided to contract the other professional’s cheaper services.

Regarding the current market and low circulation of clients, some solicitors offer great discounts to stand out from competitors and then win a client. Then, considering the aforesaid, why our legal firm did not offer a higher discount to win Mr. X as a client?

The answer is obvious; because such low fees proposed by Mr. X could not pay for the time of commitment for the searching process to buy the above mentioned property in a rural land and then providing full legal certainty to the client.

Within our professional environment of legal services, you may and shall be flexible and capable for adapting to win a client, considering the current situation of financial difficulties and increase of competitors in our sector. However, you should NEVER compete with lower fees, because if the fees for your services are reduced so much, then the quality of your services becomes also poorer.

Furthermore, if we are realistic, no professional may work with the same intensity neither commit the same time when their fees are so low, because production costs and ideal profits would require much more cases which may not be properly and professionally handled, and as a result, a poorer quality counseling service may be provided.

Later on, we knew that Mr. X hired an agent’s services for the legal counseling instead of a solicitor’s. We do not know how his case finished or whether he received a good counseling service. Similarly, if I do not feel physically well or fell pain, I would contact a doctor for a diagnosis and the prescription of a solution, instead of contacting a person who is not a doctor and claims to know a lot about medicine. As a qualified general practitioner, the doctor is better trained and has a legal responsibility. As a result, the patient-client receives more security and reliability, although he or she may pay more for these services.

In all honesty, an agent will never provide the same legal service as a solicitor will, because a solicitor has been exclusively trained by and for law. Solicitors’ training is eminently juridical; this full time commitment and the responsibility of the practice of law—because of the rules and the professional ethics code and good practice; shall always result in a higher quality legal counseling and greater commitment to the client. But I do not go against agents, as I personally know some of them and I am aware of their worth. However, they are not solicitors.

In short, although we were really looking forward to winning Mr. X as a client, we could not afford to reduce our fees so much in order to avoid a poorer quality service. The fact of highlighting our professionalism and tailor-made customer service in our law firm implies a commitment of time and this commitment implies some costs that the client should pay.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

DRAFT OF THE DECREE ON THE LEGALIZATION OF HOUSING ON NON-DEVELOPABLE LAND OF ANDALUSIAN REGIONAL GOVERNMENT

Written by Gustavo Calero Monereo on 13 August, 2011. Posted in developer, Headline, judgment, NON RESIDENT, Property law, property law, undeveloped land, URBAN LAW, urban plan. No Comments on DRAFT OF THE DECREE ON THE LEGALIZATION OF HOUSING ON NON-DEVELOPABLE LAND OF ANDALUSIAN REGIONAL GOVERNMENT

Three weeks ago, we received in our offices a copy of the draft implementing Decree of 20^th of June 2011, which regulates building and scattered rural settlements on non-developable (non-urbanizable) land in Andalusia.

This draft is supposed to be created as an attempt to regulate the situation of a large number of properties located on non-developable (non-urbanizable) land in Andalusia, where criminal or administrative proceedings cannot be filed against them for land development liability, because the offense or infringement is extinguished by prescription. The Andalusian Regional Government is partially responsible for this situation, as they have not protected or controlled the legality regarding land developments of municipalities for many years. Meanwhile, they have collected the profits from the transfers of title ownership by means of the transfer tax.

Regarding the draft of the Decree, the concept of constructions assimilated out of ordination is not understood. The use and enjoyment of these constructions can be exercised, but a complex administrative procedure is established, so that the city councils certify the security and necessary facilities for the use and enjoyment of these properties. However, the resolution to this procedure shall never mean the grant of the First Occupancy License, neither the owner’s rights shall be recognized to be exercised before any administrative or criminal proceedings (article 7, section 6 of the Decree).

If the use of housing is recognized and regulated to preserve the rural area, the environment and the scenic value where the construction is located, then, why the First Occupancy License is not granted when the owner is enjoying the property? What does “non-recognition” mean before any court proceedings? As a result, it could be understood that in the event of court proceedings, this recognition of assimilated housing shall not have any legal “value” for these proceedings, that is to say, legalization or regulation does not exist.

Maybe, the problem is based in the creation of the concept “assimilated to out of ordination”, which was incorporated by the Decree on Urban Discipline of Andalusian of 2010 and its implementation.

Furthermore, an additional problem arises, as the Land Registry jurisdiction belongs to the Spanish Government. As a result, the State legislation should firstly include this legal concept of “assimilated out of ordination” within its rules in order to authorize the registration in the Land Registry of any administrative action which establishes a construction under the consideration of this concept. Nowadays, the only existing concept is “out of ordination”, but nothing is referred to constructions “assimilated” to these ones. Then, the Regional Government is not authorized to establish the access or registration in the Land Registry, as this jurisdiction belongs to the Spanish Government.

Lastly, in many Andalusian municipalities as the Axarquía region, thousands of isolated houses have been built on non-developable land under the corresponding construction permits. Then, it does not seem coherent that differences in treatment are not considered for these owners acting in good faith, regarding these municipal permits they were granted. This draft of the Decree does not include any reference to them; therefore, the legal situation of the constructions with permits equates with these other constructions without permits.

In conclusion, regarding the content of the draft, legalization or regulation of properties located on rural land is not incorporated; no legal novelty is provided to solve out the problem resulting from the lack of control of Public Administrations regarding the use of land; this law only complicates even further the current situation of this issue.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

NEW URBAN SCENE IN LA AXARQUIA

Written by Gustavo Calero Monereo on 30 June, 2011. Posted in conveyancing, developer, Headline, NON RESIDENT, property law, Property law, undeveloped land, URBAN LAW, urban plan. No Comments on NEW URBAN SCENE IN LA AXARQUIA

Complex urban planning in Andalucia: PGOU, LOUA & POT

Due to the urban complexity that most of the municipalities of La Axarquía are immersed because of the Spanish local elections held in May, the changes in the local governments could mean changes in the way of managing each municipality and in the solutions that such local governments could propose in view of the complex urban development in this area.

We have to take into account that, nowadays, most of the municipalities are working in the production and approval of their new General Plans for Urban Zoning (PGOU) to adapt them to the Urban Zoning Code of La Axarquía (LOUA) and to the Plan for Town Planning in La Axarquía (POT), and so as to offer a final solution to all those housing developments built upon non-urban areas as well as to the thousands of isolated buildings within each municipality.

Apart from the several actions carried out by the town halls, it is worth mentioning the announcement made by the Junta de Andalucía about the approval of a Decree to legalize the large number of houses in La Axarquía. Besides, the Junta de Andalucía has made an inventory about houses built upon non-urban areas and which is being sent to each of the town halls so that they could know the situation of all those mentioned houses.

The PGOU is the main instrument in the planning of each municipality and it provides the characteristics and nature of the area that comprises such municipal district. So, it is very important that those owners with properties built upon non-urban areas, whether it is an isolated house or a house within a development, appear before the municipal offices as soon as possible, preferably with a specialized lawyer, in order to study the situation of the houses and the possibilities of legalizing them or declaring them houses out of regulation.

It is worth mentioning all those housing developments partly or totally built upon non-urban areas, but with different situations in their basic infrastructures (lighting, roads, sewer systems, water, etc). In those cases, it is necessary that each Community of Owners or, if it is not established, one of their representatives, enquires in the town hall about the situation of the housing development and its possible inclusion in the new PGOU.

If we take into account that it seems that possible mid-term solutions and measures may arrive, it is important that owners ask and take part in such “regularization” process that will be born within each town hall, so as their property or housing development could be part of this new plan, or in order to find a solution for each conflict or situation.

Obviously, regularizing each house will have a charge for the owners, depending on their situation, but we think it is a “minor wrong” if this situation of legal insecurity upon many rustic properties comes to an end.

Nowadays, our legal firm, which represents some clients that have houses or are part of a housing development built upon non-urban areas, has already started to deal with several town halls about the situation and regularization proposals of their properties. It is important that the owners are the ones who look for solutions with the town halls.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)

CURB ON “FLOOR CLAUSES” IN MORTGAGE LOANS

Written by Gustavo Calero Monereo on 10 May, 2011. Posted in conveyancing, euribor, Headline, interest, judgment, mortgages, Property law. No Comments on CURB ON “FLOOR CLAUSES” IN MORTGAGE LOANS

On the 30 September 2010, Court no. 2 of Seville gave judgment declaring the “floor clause” introduced by the respondent entities Spanish bank BBVA, Saving Banks Cajamar and Caja de Ahorros de Galicia in the mortgage loan deeds formalised with them abusive and therefore null and void, for considering that the minimum threshold interest rates set by them are abusive and detrimental for the consumer.

Although the judgment has been appealed by the three financial entities mentioned, the Court has ordered the provisional application of the resolution. Therefore, as from 27 January 2011, they will not be able to include the said clause in their mortgage loans, and from 11 April, they will not be allowed to charge the clients with the difference between the minimum interest rate as per Euribor plus the interest rate agreed with the client, and the minimum threshold interest rate or “floor rate” set by the said bank entities in their mortgage loans.

The so called “floor clause” means that in times of low mortgage interest rates, such as the ones we have lived through and are living through at present, the client is committed to pay a set minimum interest rate, which means that even if interests go down, their mortgages cannot benefit from lower interest rates

According to ADICAE (Association of Banks, Saving Banks and Insurance Companies of Spain), in Spain, there are currently 3.8 million clients who have this “floor clause” included in their mortgage loans and have not been able to take advantage of lower mortgage interest rates over the last years. The said association considers that in 2010, Banks and Saving Banks obtained a revenue of 7,000 million euros thanks to these clauses. These results show the importance and relevance of this judgment.

Therefore, as from 11 April, the entities BBVA, Saving Banks Cajamar and Caja de Ahorros de Galicia are obliged to recalculate repayments in all loan agreements taking into account a variable interest rate according to the Euribor benchmark rate, plus the interest rate negotiated with the client, and not according to the minimum threshold interest rate or “floor rate” established in their mortgage loans. This means that, since the interest rates applicable will be lower, the monthly repayments of those clients who have a mortgage loan with any of these entities will decrease.

Commercial Court no. 11 of Madrid has currently admitted the biggest joint action filed in Spain against 45 bank entities for the application of these “floor clauses”. It is likely, that before the end of the year, we know if such a number of saving banks and banks have to follow the path of the other three mentioned, which will be the most logical and coherent outcome.

However, whichever the result, it is likely that this issue of “floor clauses” reaches the High Court, who will then be in charge of taking the definitive decision about these provisions being abusive or not.

In the meanwhile, I would advise you to check your mortgage loan deeds , so that you may see if you have benefited from this judgement and if from 11 March, your bank is applying the resolution.

We will keep you informed on new updates.

Author: Gustavo Calero Monereo, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

Author: Gustavo Calero Monereo

MORTGAGES: THE WELL-KNOWN ECJ RULING ON THURSDAY 14TH OF MARCH

BUILDING PERMIT INVALIDITY AND CONSEQUENCES FOR THIRD PARTIES IN GOOD FAITH

BUYING YOUR HOME IN SPAIN BEFORE THE 31ST DECEMBER 2012

PROPERTIES ON NON-DEVELOPABLE LAND AFFECTED BY RECENT FIRE IN COSTA DEL SOL

TAX EXEMPTION WHEN BUYING A PROPERTY BEFORE 31/12/2012

HAVE YOU ALREADY PLANNED YOUR INHERITANCE TAX?

LEGAL COUNSELING: “IF YOU BUY CHEAPLY, YOU PAY DEARLY”

DRAFT OF THE DECREE ON THE LEGALIZATION OF HOUSING ON NON-DEVELOPABLE LAND OF ANDALUSIAN REGIONAL GOVERNMENT

NEW URBAN SCENE IN LA AXARQUIA

CURB ON “FLOOR CLAUSES” IN MORTGAGE LOANS

TORROX OFFICE

MALAGA OFFICE