The Spanish Government has proposed changes to the much berated Ley de Costas, or Coastal Law, including much longer concessions of use. In practice, the Government of 2093 will probably offer a new administrative concession – for a price. It’s like when you buy an expensive property in London that actually belongs to the Duke of Westminster, you are really only leasing it for a period, a very long one. In any case, I wouldn’t lose sleep over it; I won’t be alive to see it and neither will you.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8^th of November 2012

Introduction

Normally I would not write a legal article on legislation which still has to be enacted. I’m doing an exception only because I find the subject highly relevant and, in all likelihood, it will be approved with few amendments.

Spain’s ruling Coastal Law (Ley 22/1988, de 28 de julio, de Costas) establishes a zone of protection from the shoreline in which nothing can be built unless expressly authorised (by what is known as administrative concession). This law has gone largely ignored over the last decades mainly because administrative authorities have done little no nothing to enforce its own stipulations. The law in itself, as usual, is excellently drafted but there was no political will to back it. As it stands to logic, there is little point in drafting laws and enacting them if there is a lack of political willpower to enforce them. After all, a law is only effective in the manner that its coercive threat remains credible. Otherwise it’s all barking and no fangs.

From a personal point of view, the intent of this PSOE law was very good as it devised a cohesive sustainable development model that attempted to balance a respect of Nature and the legal right of landowners to develop land. It is a social responsibility of our generation to preserve natural habitats for the enjoyment of future generations. It’s almost an intergenerational solidarity and it is even key for our own survival as a species to respect and protect Mother Nature.

I was lucky to be born and raised in the privileged Marbella of the 70s. Marbella was once renowned for its sand dunes, believe it or not! When I was a child some of my fondest memories were to be taken by my parents – or school – to wild sand dune beaches, free of construction sites. Three decades later the only area I can think of in Marbella which still remains untouched is the ‘protected’ las Dunas de Artola nudist beach (in Cabopino); the last stand of Nature. Not for long, as there are already talks underway to develop this unblemished green area as well.

Now all this is but a faint memory buried in sepia-coloured photographic archives. The last standing genuine sand dune beach in Marbella is Playa de Artola, in Cabopino. I have to drive for almost an hour’s time to Tarifa’s beaches (Cadiz) to offer my children a similar experience to the one I had when I was their own age – we take for granted far too many things in life and only fully appreciate them on losing them. And even now Tarifa’s pristine beaches, a natural treasure, are under threat of looming development with several hundred beachfront properties under planning. But enough digression.

As a result of a notorious lack of political will to enforce its own laws (as featured in detail in Auken’s report), landowners and property developers at large jumped at the chance and started building on the designated zone of protection which is prime building land highly sought-after by foreign property investors. After all, who hasn’t dreamt in their life of owning a front line beach pad?

After decades of leniency, by both PSOE and PP authorities, the former PSOE presidency took a bold stance taking the bull by its horns and started to enforce its own law – rather abruptly and harshly – some four years ago. This sent ripples of alarm through landlords owning coastal properties as the long-standing status quo had effectively been unilaterally broken. The existing law stipulates a grace period of 30 years (ending in 2018) after which all ‘illegal’ properties were to be demolished.

Official figures vary widely, but a conservative estimation puts it at over 10,000 properties nationwide (ranging from beachfront luxurious villas, to hotels and even including industrial sites) that would need to be demolished as a result of falling foul of the law’s stringent requirements. The most notorious example of this is the hotel El Algarrobico, an architectural monstrosity located in Almería, which has been built over earmarked green belt land (Cabo de Gata-Níjar national park no less!) and now has a ruling to demolish it with an estimated price tag of six million pounds – don’t hold your breath.

This has sparked an enormous sense of legal insecurity to foreign property investors looking to buy property in Spain’s privileged coastal areas. A fear widely echoed by the media abroad. If there is something investors dislike is when the rules of play are blurry at best. A transparent nationwide legal framework is mandatory to reassure them and foster investment – far too many administrations involved, regional and local, with overlapping competencies and more often than not contradictory rulings adding to the planning mayhem. There are countless cases of foreigners buying beachfront property only to learn with horror that their expensive properties are under threat of being bulldozed – despite having acquired them through a Notary in a perfect legal manner. The last thing our property industry needs right now are yet more scandals of good faith foreigners whose properties have been flattened out. I just cannot understate enough how damaging it was for Spain’s interests the media coverage of the Prior’s case – unrelated to the coastal law. Such cases need to be stamped out by the authorities well before they even take place if we are to rebuild trust in foreign investors. Trust is hard to attain and it only takes a couple of bad calls to lose it.

With the above in mind, the Government has approved a project of law to significantly amend Spain’s coastal law. Despite vehemently denying it is proposing an amnesty, to all intents and purposes it is an amnesty in all but name. The official line is that this amnesty will help to avoid a sense of planning insecurity in Spain encouraging foreigners to invest in Spain safely. Spain, with successive administrations organising continued road shows abroad in an attempt to restore confidence and bring back much-needed foreign investments, can ill afford to have its image tarred – once more – with thousands of foreign-owned properties demolished in five years’ time. Kudos to the Government for getting its act together, at least for once.

The cynic in me however raises the question on who would foot the enormous bill (billions of euros) to demolish said properties, tallying in the thousands, in 2018. Normally judicial rulings sentence the offender to demolish them – at their own cost. Problem is many of these landowners cannot currently afford this so it would ultimately fall to the state/local authorities to pick up the incommensurable tab. With a severe ‘recession’ this seems unlikely. I blush calling this a ‘recession’, honestly, and beg forgiveness and understanding from the gentle reader for not using the appropriate word for a social tragedy with over 25% unemployment rate. But this only underscores the fact it is a buyer’s market.

The Government has opted to duck its head in the sand pushing the problem ahead for the next 75 years. For this is the new proposed timeline for the new grace period. For the next three generations troubled landowners will be able to sell on and rent their properties – legally – without qualms deferring to future generations irksome planning issues.

Ah, life is so much easier when you are a politician – pushing problems under the rug for future generations to contend with; classic.

The Key Legal Misunderstanding

From my professional experience most misunderstandings related to our Coastal Law stem from people ignoring the particularities that are being dealt with in the zone of protection. As its name implies, developing land within its boundaries is forbidden.

Properties (in an ample sense) located within the zone of protection in Spain's Coastal Law are not freehold property, they are in fact leasehold property granted by the State (known in Spanish as a ‘concesión administrativa’ or Administrative concession). This is a fairly important point that surprisingly few people take notice of. This means that the land within this earmarked area actually belongs to the State. You are actually leasing the land (and anything built on it) for a pre-agreed timeline. After said timeframe has elapsed, the property will revert back to the State.

This zone of protection is devised to exclude developing within its boundaries (i.e. restaurants, hotels, villas, industries etc.) leaving it pristine. However, as the Coastal Law of 1969 was by and large ignored the new law from 1988 stipulated a grace period of 30 years (ending in 2018) to landlords owning property within the designated legal protection zone after which they would mostly be demolished. This was likewise ignored by subsequent administrations up until recently when the PSOE government started to enforce its own law proactively. I refuse to delve on the intricacies of the tiers of protection (‘servidumbres’) which merit their own article and would likely bore my readers to death.

This implies, for example, that on buying a beachfront property built within the zone of protection you know that it is in fact subject to a grace period ending in 2018. This administrative concession is now proposed to be extended to the year 2093, providing the reform is passed. This is a fairly important point – at least theoretically. Normal freehold property experiences capital appreciation over time (disclaimer: unless it was overvalued in the first place and you are in the middle of a severe global meltdown – such as now!). However these properties are more akin to leases than freehold properties. The value of a property is actually ‘reduced’ over time as the deadline draws nearer because the time remaining to enjoy it is likewise reduced.

I’ll put an example to explain the concept. Take two identical beachfront villas (built on the zone of protection) with different administrative concessions. You would expect the price tag of both to be identical – you would be wrong. Say the first one has a 75-year period and the second one only has a ten-year period. The former will reach a much higher price tag than the second because it still has 75 years to run its course, whereas as the ‘ownership’ of the second one will revert back to the State after a decade is over. That’s right, this land and anything built on it, is ultimately owned by the State – not by the owner.

You are de facto leasing it from the Authorities. When the time is up, ownership reverts to the State. Actually let me rephrase that; the ownership was always the State’s; it’s really the use that reverts back.

Just to clarify, unlike my above example, all property built within the zone of protection will all have an identical administrative concession lasting 75 years; I have taken the liberty in my above example to imagine different deadlines for the sake of explaining the concept on how the time elapsed impacts on the underlying value of the leasehold. That’s the theory anyhow.

In practice, the Government of 2093 will probably offer a new administrative concession – for a price. It’s like when you buy an expensive property in London that actually belongs to the Duke of Westminster, you are really only leasing it for a period, albeit a very long one. In any case, I wouldn’t lose sleep over it; I won’t be alive to see it and neither will you.

Highlights of the Proposed Amendment

I stress that the following bullet points may be subject to change as at the moment of writing this article the reform has not yet been enacted – it is only a proposal. This is only a summary of the main points currently being put forward for discussion that will probably make their way – or not – to the approved law:

• The main highlight is that the grace period to bulldoze thousands of coastal properties in 2018 is postponed by 75 years. The term ‘properties’ includes dwellings, restaurants, hotels, industries etc. In the interim owners may take advantage of this new grace period to sell on or let their existing properties legally. The looming demolition threat pending on thousands of properties in 2018 is now removed. This will be a most welcome respite for many.
• The Government can now override local planning authority decisions. This is introduced to avoid ‘El Algarrobico’ scenarios whereby local planning authorities, in full disregard of national and regional laws, approve planning breaching law.
• The proposal distinguishes between urban and natural beaches, increasing the protection of the latter.
• Beach restaurants, popularly known as ‘chiringuitos’, will have their administrative concession increased from one year to four years.
• Existing industrial sites (over 1,800) will now need to pass an Environmental report to have their administrative concession extended.
• Mandatory obligation to earmark all property located within the zone of protection and to have it lodged at the Land registry. Buyers will no longer be able to allege ‘good faith’ on buying them claiming they were unaware of their particular legal status: leasehold as opposed to a freehold property.

In Conclusion

It is a very tricky subject with no easy solution. Personally I feel torn between both sides. Balancing opposing needs is always a hard task; you have to determine what the greater good is, and that may be subjective. On the one hand you have a law which upholds social interests and protects coastal areas, on the other hand you have the legitimate interests of those owners who bought and developed land – mostly – in good faith. How can you lay the blame – and ultimately the consequences – on thousands of innocent bystanders for the government’s own reckless bipolar attitude who fails to uphold its own laws? You simply cannot. There are far too many interests at play in the big picture that amply justify overriding what was devised as a well-meaning law.

The immediate winners of this legal proposal are developers, lenders (many of which have repossessed these properties) and in general private individuals owning properties on the designated zone of protection (many of which are foreigners) which were facing the grim prospect of looming demolition in 2018. This amendment will greatly contribute to bolster the legal security over the next century hopefully attracting in its wake foreign investment. This reform aims to iron out legal uncertainties which were holding back much-needed investments.

On a wider angle, the image of Spain as a whole will benefit from this proposed amendment as it will successfully avert what would have been a most ugly PR affair in 2018 which would have tarnished the image of Spain to no end. It would have single-handedly pushed back recovery several years – such is its impact. The Government should be heartily congratulated on adopting a pragmatic approach; regardless of its unpopularity with opposing political parties – they would have done exactly the same thing if they were ruling, truth be said. Worth mentioning is the considerable money that will be saved from not having to demolish thousands of properties at a time where Spain sorely needs to keep a tight rein on public spending.

The loser, in a manner of speaking, is society as a whole. For this reform will only assert furthermore the sense of widespread impunity on building on land earmarked for special protection – it will consolidate a de facto situation, the triumph of illegality. I can only hope that the last few unblemished green remnants still standing on our coastline are in fact protected by this law. Without a resolute political willpower to back it, my faith remains low.

A lawyer can assist you ensuring your property is fully compliant of the coastal law requirements. Such properties will need to be registered under a special status following the approval of the project to amend Spain’s Coastal Law.

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.012 © Raymundo Larraín Nesbitt. All rights reserved.

Quo Vadis Hispania? At a time of widespread financial uncertainty and even political instability, you may want to read a few tips that will help you stay ahead in the letting game as a landlord in Spain.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
10^th of October 2012

Original article from 31st January 2.008

Introduction

Landlords in Spain are all too familiar on having been stung by troublesome tenants that made them wish they had never let their properties in the first place.

The aim of this article is to provide some tips on the pre-emptive measures and safeguards that ought to be put in place in advance of renting to achieve a hassle-free let.

1. Tenant Screening.

One of the major problems landlords face post credit crunch is the increasing number of non-paying tenants. Many ex-pat landlords rely on a let partially or wholly to offset mortgage repayments. No one wants to be tangled in a long protracted eviction procedure which may lead a landlord into arrears or even end with his property being repossessed. Spanish lenders pursue borrowers for negative equity even in their home countries as explained in my article Spanish Creditors Pursuing Debts Abroad (Recognition and Execution of EU Member State Rulings).

One of the best ways to avoid non-paying tenants is to take pre-emptive measures such as carefully screening candidates, weeding out those with unsuitable profiles. Haphazard screening can only lead you into trouble.

There is now a helpful website available that lists non-paying tenants in Spain: ‘Fichero de Inquilinos Morosos’ (FIM). For a reasonable small fee you will be able to search – in English – if your prospective tenant has actually defaulted previously on a Tenancy Agreement. There are professional defaulting tenants that roam the country in search of their next victim, preying preferably on trustful non-residents. In hard times such as these, many struggling landlords cannot endure the hardship of a financial leach that eagerly exploits Spain’s Tenancy laws’ shortcomings.

This website’s database is continuously updated with the input provided by both eviction rulings as well as by other users’ feedback. You can additionally include your own non-paying tenants in their list providing you comply and follow the online form’s instructions. Professional non-payers – who’ve made a lifestyle out of it – will already be included in this black list.

I would advise using this website only for those candidates who’ve been shortlisted in your screening process. You might as well spend a few dozen Euros now rather than having to fork out thousands at a later date in an eviction. Better safe than sorry.

2. Arbitrage Clause

Adding this clause to a tenancy agreement allows eviction associated disbursements to be curbed down significantly as well as saving considerable time.

This system was created back in 2004 and allows to significantly reduce both the associated expenses as well as the necessary eviction time compared to a normal court procedure (which spans normally ten months). However, this system only works if both parties, tenant and landlord, abide the mandatory Arbitral Award something which does not always happen as non-paying tenants may only be buying time with no real intention of paying the arrears. On which case the matter is passed on to a judge. On average it is estimated that 30 to 40 per cent of arbitrage cases are settled out-of-court. So it is not all that is cracked up to be to be honest.

The main advantage would be the swiftness in which the arbitral award is obtained. The Arbitral Court guarantees that a case will be examined within 30 days, often even less. This is particularly important in cases in which the landlord offsets the rent against his mortgage repayments and risks slipping into arrears which may lead to a bank repossession.

The second advantage would be the considerable amount of money it saves the landlord. It only costs €40 plus a further €300 in case of a protracted conflict (£240). A normal court procedure would have an average cost of at least €2,000 (£1,600).

It is only necessary to request it in a real estate agencies of your region homologated by the Arbitral Court or simply including it as a clause in a Tenancy Agreement waiving an ordinary court procedure – at least initially.

3. Rental Insurance

Increasingly you will find more and more insurance companies offering relatively inexpensive tenancy insurance charging typically a one-time annual fee equivalent to 60% to 100% of a monthly rental. This insures the landlord against the tenant defaulting, and covers lawyers’ fees during the eviction process (up to around €2,000). They also insure different scenarios i.e. a disgruntled tenant destroying the home furniture during an eviction procedure up to a pre-agreed capped amount. Normally this amount is in the region of €3,000.

These insurance companies evaluate the credit risk of a prospective tenant unlike banks with rental bank guarantees. So basically they already do a tenant screening on your behalf as its their own money that’s at stake. However the catch is that these companies picky and may be only interested in insuring tenants which are regarded as ‘very safe’ from a financial point of view. They would be looking for a would-be tenant matching the following profile: long term job contracts (“indefinido” in Spanish) and are earning above €1,200 gross pm. Nowadays it is no small feat post Labour reform (implemented early on this year) to find such tenants. The significant change in Labour laws has translated into widespread reductions of 30 pc in Spanish wages. Not long ago a ‘mileurista’ (someone who barely earns one thousand euros a month and has attained a university degree) was socially derided; now it is the aspiration of the better part of today’s soaring unemployed youth.

4. Rental Bank Guarantee

My advice for landlords is to request from a prospective tenant what is known as a ‘rental bank guarantee’ (“aval bancario”). Commercial leaseholds are the natural niche that requires bank guarantees as these types of lets are fairly steep. But the benefits can also be extended to home rentals.

This would ensure the landlord against a tenant defaulting. The landlord may execute said guarantee and the bank would be obliged to pay them immediately. The bank in turn would claim this amount from the tenant. This bank guarantee should ideally be made to secure the following 5 years even if the tenancy agreement is only for short term.

However there is a catch, claiming on this rental bank guarantee is no substitution for an eviction procedure, rather a compliment to it. For example, a tenant may default on the second month, the landlord after having sent letters claiming the owed rental to no avail, executes the bank guarantee (which secures for example six months’ rental). But the non-paying tenant will still be living inside the property.

Ideally rental bank guarantees should be exercised after an eviction ruling, not before. It is common place that tenants on Spanish coastal areas have, naturally, no assets of their own so after an eviction process the landlord is still owed the lost rental income. The bank guarantee could then be claimed on to offset this rental loss. The tenancy contract would also have to be terminated of course for breach of contract according to art. 1124 of the Spanish Civil Code. I advise you to hire a lawyer on doing this.

In the current bleak financial context in which non-paying tenants – particularly awash in coastal areas – are defaulting, this bank guarantee would act as a heaven-sent safety net for landlords ensuring payment once the eviction process is over helping to remove most of the associated stress – because the money is already there, locked up in a bank account.

A rental bank guarantee are ideally suitable for long term tenancy’s (eleven months renewable) not for short periods such as summer lets (one month or a couple of weeks). Luxury summer lets, particularly mansions and villas, would be the exception, warranting making good use of rental guarantees because of the amounts involved.

The drawback is that a bank guarantee is expensive and requires a tenant to deposit lump sum an amount of money at their own bank, typically 12 months rental, which is left in custody. On top of this, banks normally charge 1% of the amount, notary fees, opening interest and a quarterly interest. Not all tenants find themselves in a comfortable financial position to provide this bank guarantee upfront either because they lack the funds or, even if they do, are unwilling to have it tied-up until the guarantee elapses which could be anything as long as five years.

A bank guarantee does not ensure in any manner a tenant is financially sound – you have been warned. Unlike insurance companies offering rental insurance (see point three above), banks at no time carry out a due diligence on the tenant’s assets and financial ability. It merely guarantees that a tenant deposited an amount of funds equivalent to say twelve months rental which the landlord can claim upon default. The tenant cannot dispose of said funds until the bank guarantee elapses. Notwithstanding banks may include clauses that hinder the execution of the guarantee which is why I recommend you to hire a lawyer to help arrange these guarantees and avoid abusive clauses.

This guarantee is handed over by a tenant at the time of signing a rental agreement, never after. The landlord will hold it and deliver it back once the tenancy is terminated satisfactorily with no pending amounts owed.

In Conclusion 

Careful screening and weeding of prospective tenants as well as implementing rental insurance, a rental bank guarantee and finally but not least an arbitrage clause will vastly increase your chances of successfully letting property in Spain.

Landlords that risk overlooking the above listed time-proved tips will do so at their own chagrin.

Legal services Larraín Nesbitt Lawyers can offer you

• Rentals
• Registration of Holiday Rental Homes
• Fiscal Representation (Non-Resident Income Tax)
• NIE Number (Tax Identification Number)
• Tenant Eviction Service

Related articles

• Renting in Spain: Top Ten Mistakes – 8th of June 2011
• Let-to-Buy in Spain: The Smart Choice – 8th of April 2012
• Letting in Spain: The Safe Way – 10th of October 2012
• New Measures to Bolster Spain’s Ailing Rental Market – 8th of July 2013
• Tenant Eviction in Spain – 8th of June 2014
• Holiday Rental Laws in Spain – 8th of March 2015
• House Hunting in Spain – The New York Times. June 2015
• Non-Resident Taxes in Spain – 8th December 2015
• Resurgent Spain: Málaga Sees Strong Sales – Mansion Global (The Wall Street Journal). December 2015
• Holiday Rental Laws in Andalusia (Decree 28/2016) – 8th of February 2016
• Decree 20/2002: Andalusia’s Holiday Rural Rental Decree – 8th of April 2016
• Urban Rental Law in Spain – Spain's Tenancy Act – 8th May 2016
• Renting in Spain - Landlord´s Taxation – 8th of January 2017
• Renting in Spain: Non-Resident Landlord's Rental Reliefs – 14th of January 2017
• Holiday Rental Home Taxation in Spain – 8th of July 2017

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.012 © Raymundo Larraín Nesbitt. All rights reserved.

A lawyer will previously endeavour to reach a satisfactory settlement with the other party, resorting to litigation only as last option. Having reached a point in time whereby it is apparent that the only path left is to litigate, one should consider a number of cases in which it is unadvisable to sue on certain grounds as the ruling will most likely turn against the plaintiff – you.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8^th of September 2012

Original article from 30th September 2.008

Introduction

This article should not be construed as a defence of developer’s interests, but rather as a cautionary tale to dissuade potential plaintiffs from engaging reckless litigation which may leave them seriously out-of-pocket.

The following points are by no means to be taken in any particular order or even as a closed list.

1. Suing close to the scheduled delivery date of an off-plan property

If you sue too close to the scheduled delivery date of the property your case may be dismissed. Some people mistakenly think that they can sue a developer as soon as he fails to comply with the obligation of delivering a property within a certain stipulated deadline worded in their Private Purchase Contracts (henceforth PPC). A reasonable timeline for litigation, as a general rule, would be 6 months after the deadline set in the PPC to deliver the property but cases differ depending upon different circumstances. There may be automatic extensions in the PPC granting a developer a grace period of, for example, three months. These must be expressly accepted by the purchaser. If you do accept them then the delivery date is pulled back accordingly so they must be taken on board on calculating the amended delivery date. It does not suffice that you receive a letter informing you of the grace period – you must accept it.

EDIT May 2015: Spain’s Supreme Court has changed this and allows it on suing on off-plan properties relating to bank guarantees. Please read my article (Spain’s) Supreme Court Rulings on Bank Guarantees for more details.

2. Suing when a Force Majeure has taken place

This second point is related to the above. If you happen to sue a developer who can allege a cause of Force Majeure such as hard rain, general strikes, adverse or extreme meteorological conditions etc. If the developer can successfully prove in court that a Force Majeure took place during the construction period then he will be allowed legally to offset the lost days on calculating the delivery date which will be pulled backward.

3. Suing when a LFO has already been granted

A First Occupancy Licence (LFO) is a licence which is issued by the town hall where the property is located and which verifies the development fully complies with the original Building Licence (BL) granted by said town hall as well as complying fully with all Planning laws. Upon the granting of a LFO by the town hall the dwelling is regarded as legal and fully fit for human dwelling. It is considered as already too late to pull out and litigate once the LFO has been granted as under law the developer is regarded as having complied fully with his main obligation of handing over the property. Additionally if a judge considers that a development has been granted validly the administrative Licence of First Occupancy by means of a special administrative procedure known as Administrative Silence Rule (ASR) from the town hall or there is a general consensus on this point then it is not wise to sue. If a LFO is obtained through the ASR it is just as valid as a normal one obtained expressly through a town hall under Spanish Administrative Law. It is pointless to challenge an ASR licence as it is perfectly legal in our legal system, providing it wasn’t obtained breaching any planning laws.

4. Suing for breach of contract when you are likewise at fault

If you sue a developer for breach of contract when you in turn have not been complying with the fundamental obligation of paying him regular instalments or stage payments as set forth in the PPC. The judge will consider that you cannot allege the developer being in a breach of contract when you have previously breached the PPC yourself. In fact, you are the one at fault as your main obligation as a purchaser is to always pay in time according to the contracts’ clauses.

5. Suing on non-essential grounds

If the reason why you file a law suit is not deemed as ‘essential’ by a judge i.e.

– You sue a developer because on doing the snagging list you realise that the promised ‘commanding view over the sea’ is not so and all you have from your terrace is a flimsy view of your neighbour’s back garden brick wall.

-The infinity swimming pool and state-of-the-art sport facilities have not been built to the promised standards – or even worse, not built at all.

This lawsuit will most likely fail if you are trying to pull out and claim back on your full stage payments only because of this. Only if the PPC included a specific clause by which the sea views were regarded as essential to you would you be allowed to pull out and claim for a full refund successfully without being penalised. A different matter altogether would be if you sue post completion seeking compensation on the lost view. The question would be really if it’s worthwhile to pursue litigation in such a case. Perhaps it would be wiser to negotiate and agree on a suitable compensation such as free installation of a/c or even negotiate a reasonable price reduction upon completion.

6. Suing on grounds of a lack of a Bank Guarantee

If you feel tempted to sue a developer because he has not provided you with the mandatory Bank Guarantee on buying an off-plan you will most likely lose. One cannot cancel a contract and demand full payment of your stage payments on such grounds.

EDIT May 2015: Spain’s Supreme Court has changed this and allows it on suing on off-plan properties relating to bank guarantees. Please read my article (Spain’s) Supreme Court Rulings on Bank Guarantees for more details.

7. Suing without being regarded as a consumer

It is important to take notice than when you buy a significant amount of off-plan properties, i.e. three, you may no longer be regarded by the judge as a consumer but rather as a shrewd professional businessman or businesswoman. This is important because it will mean you will no longer be under the protection of Spain’s’ favourable Consumer laws. Consumer laws are an effective tool at times to mount pressure on developers.

8. Suing on excessive compensation grounds

On suing in Spain one must bear in mind that the legal system is very different from that of Case Law which exists in English-speaking countries. One of the major differences regards claiming on compensation. Unlike the United Kingdom or the U.S. whereby a judge may award you a huge compensation, this is very unlikely in Spain. A lawyer ought to be cautious on suing as being overambitious may be counterproductive. This may imply that for example if the lawyer over requests compensation the judge can actually sentence that the plaintiff has to share in the legal expenses of the court procedure despite having won the hearing. Whereas if the plaintiff had in fact been less ambitious it would have not backfired on him and the judge may have sentenced that it is the defendant who actually has to pay for all the plaintiff’s legal expenses (both lawyer and procurador). Spanish judges have a wide margin of subjectivity to construe when it comes to establishing capital appreciation or depreciation of a dwelling or on claiming moral damages or damages in a broad sense.

9. Suing lacking the necessary documents to prove your petition

It is necessary the plaintiff gathers a sufficient amount of documents prior to litigating. The documents which the plaintiff should have available are namely a copy of the original Private Purchase Contract and all original invoices of the stage payments or bank statements including the initial reservation fee. The invoices of bank statements proving the transfer of funds are of paramount importance as in fact the whole law suit will hinge on them.

10. Suing using the wrong legal procedure

This occurs when you sue a developer following a Criminal procedure when you should have followed instead a Civil on. In this case you will have wasted considerable time and money following a wrong venue.

In Conclusion

As a drawing conclusion, it is not advisable in general to sue a developer which has no assets under his name as the funds spent in a lawsuit would be a complete waste of both money & time. In short it would be putting good money after bad. That is why on suing it is the advisable your litigation lawyer locates and secures assets lodged under the developers’ name and requests from a judge, if needed be, to place a provisional charge on them (embargo) on suing. This will effectively avoid the developer selling off these assets as they now have a legal hold placed on them. This encumbrance will ensure your financial interests depending on the ruling’s outcome.

Litigation should never be taken light-heartedly and it is necessary that a lawyer expert in litigation analyses your legal situation to determine if litigation is really a worthwhile option for you. Professional lawyers will always layout clearly your legal options and let you decide which one to take.

“Pleitos tengas y los ganes” – Gipsy curse.

Loosely translated as “May you find yourself in many (legal) problems and win (but at a great cost to you)”.

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in litigation, conveyancing, taxation and inheritance. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

Legal services Larraín Nesbitt Lawyers can offer you

• Property Litigation

Related articles

• 10 reasons why your case against a developer may be thrown out of court in Spain – 8th September 2012
• Licence of First Occupation – 8th April 2013
• Bank Guarantees in Spain – 8th of April 2013
• Buying Off-Plan in Spain – 8th of June 2013
• Supreme Court Rulings on Bank Guarantees – 8th April 2015

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.008 and 2.012 © Raymundo Larraín Nesbitt. All rights reserved.

Solicitor Raymundo Larraín Nesbitt explains why it is almost essential, for non-residents owning property, to make a will in Spain in lieu of drawing up a national one to dispose of their Spanish estate. He also sheds some light onto Spain’s Inheritance Taxation system so as to cast aside some increasingly widespread misconceptions.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8^th of August 2012

Original article from 3rd September 2.009

Spanish Inheritance Tax Overview

The topic of Inheritance in Spain is a fairly complex and technical one, allowing for multiple articles on the matter.

Besides a general legal framework which is applied nationwide (Law 29/87 andOrdinance 1629/1991), each of the 17 existing autonomous regions that make Spain are additionally empowered to rule on some aspects enacting their own laws i.e. on applying their own tax allowances.

There’s an ongoing trend to abolish Spanish Inheritance Tax fostered by Spain’s conservative party. These trends are always very popular amongst voters. Many Autonomous Regions have jumped onto the band wagon and are now applying reductions on IHT to such an extent which in practice translates to almost suppressing it i.e. Madrid, Basque Country, Navarre, Valencia, Balearic and Canary Islands.

Other regional communities, despite not having suppressed IHT, apply their own tax allowances in addition to those set by the Government in the above laws. Such would be the case of Andalusia in which beneficiaries, resulting from a death occurred after the 7th of June 2008, may benefit from the following regional tax allowances:

– Reduction of 99.99% in the IHT taxable base on inheriting the family home (deaths occurred since the 1st January 2003). This requires the beneficiaries to be resident in Spain.
– Reduction of 99% in the IHT taxable base on those inheriting a business – providing certain criteria is met.
– No IHT paid on the Estate itself on compliance with certain requirements (i.e. inheritance taxable base < €175,000 heirs are next of kin or spouse, heirs pre-existing net wealth < €402,678 ).
– No IHT paid by physically handicapped (disability above 33%) with a taxable base < €250,000.

For more detailed information on Spain's Inheritance Tax, I advise you read my two in-depth articles on the matter:

• Spanish Inheritance Tax for Non-Residents (Part I) – 21st of February 2016
• Spanish Inheritance Tax for Non-Residents (Part II) – 8th  March 2016

Is the Dread on Spanish IHT Justified? Not so.

Spanish Inheritance Tax has been grossly overblown over the last years by a minority with a vested interest in peddling doubtful financial products or else complex holding structures to non-residents at large who, in most cases, are in no real need of them.

These ‘creative’ solutions often involve high setting up fees as well as high annual costs that can altogether negate the sought tax mitigation. Besides, you run the risk that if you decide to sell the property later on in life, for whatever reason i.e. health issues, some purchasers’ lawyers may turn down deals when the property is locked up within a string of holding companies because of the associated legal risks. Naturally these companies can always be wound up – at a prohibitive expense – to sell on the underlying property although it may take some time. And last, albeit not least is the point on who’s really in control of such corporate structures.

I just have to make a special mention of equity release schemes that were sold by unlicensed agents in Spain to senior affluent foreigners. These schemes were supposedly devised to avoid or greatly reduce Spain’s IHT. The way they worked is that you borrowed money against your villa by placing a mortgage against it. The borrowed funds were put to work in some ‘safe’ offshore fund which gave a ‘guaranteed’ yield of 5% p.a. The theory was that the yield would pay off for the high setting up fees and ongoing expenses, almost self-financing itself – too good to be true. In this manner, on passing away, the estate went untaxed as it already had a lien against it – that’s the theory or sales pitch.

In practice things panned out very differently for these would-be-investors who ended losing both their homes and the borrowed money – which they never saw by the way –to these unscrupulous lenders as the property market took a nosedive. There were clauses ‘hidden’ within them that triggered repayment – in full – to lenders if the value of the collateral fell by more than 20 pc. By then your ‘safe’ yield was making a massive loss and as most of these borrowers were asset rich but cash poor they were forced to surrender the property – which acted as collateral – to these lenders.

Basically what these lenders were really doing was to buy trophy homes for a fraction of its market price. They knew very well that the invested funds would soon be in the red. And they let the magic of compound interest do the rest with owed funds increasing exponentially over time as losses continued to mount. It was only a matter of time until you were notified to either provide additional security or else surrender the collateral. It was pay up or put up.

It was always apparent to me – I am slightly pessimistic – that property prices were going to nosedive significantly post boom. You just cannot seriously expect real estate to appreciate by over 300pc over an eight-year period in Spain not to fall significantly over the following years – not to mention how very overvalued these properties were to start with by surveyors for the purpose of applying for a mortgage loan. Surveyors who were strongly ‘recommended’ by lenders but who oddly enough were paid for the borrower himself.

The more the property was worth, the more the borrower could borrow tightening the noose around their neck even further should the market turn the corner. Because the more you borrowed the easier it became to lose your property on a market downfall. The writing is on the wall.

I add that in my career I refused point blank to sign such contracts while working for a British law firm that heavily promoted them on the costas. I will still recommend anyone who wants to hear to steer well clear of such contracts. Not to be confused with lifetime loans in Spain which are wholly different and have no purpose of mitigating your heirs’ IHT bill and – needless to say – the loan is not invested in exotic offshore investments – you do as you please with it.

Worthwhile mentioning is the Spanish Tax Office’s clamp down on such structures as of late, eager to offset the shortfall in property tax revenue. The bottom line is that these solutions may prove unsuitable for most people, requiring a careful case-by-case approach.

IHT’s most onerous cases are related to the transfer of large estates or assets bequeathed to distant relatives or non-family members such as friends (Group IV). It is in both of these cases, which are a minority, in which the IHT liability can be high, too high, reaching even 81,6%, which is tantamount to expropriation in my opinion. Hence the need of tailored tax planning which may indeed – at times – justify setting up corporate structures, for tax mitigation purposes, on such cases.

The key to successfully mitigate Spain’s IHT is to plan ahead prior to the purchase of a property in Spain.

Isn’t a Will Drawn up in the U.K. or in the R.O.I. Valid?

A UK or Irish will are perfectly valid to bequeath assets located in Spain. Having said this, many practical problems stem from this that could easily be overcome by means of having made a Spanish will.

So why is it then ‘essential’ to make a Spanish Will?

Fairly often people just don’t realise they are adding unnecessary stress and expenses to their loved ones at a time of bereavement by not having drawn up a Spanish will. For all those owning property in Spain it is highly advisable you make a Spanish will which will be complementary to the will you’ve already made in your own home country.

However I would just like to clarify that making a Spanish will doesn’t avoid you being liable for Spanish IHT in any way whatsoever.

Drawing up a Spanish will, to dispose exclusively of your Spanish estate, has a number of advantages for your beneficiaries, all having to do with saving them time, money and hassle.

Making a Spanish Will: The Advantages

1. A Spanish will is exclusive to your assets located in Spain. It doesn’t preclude any will you may draw up in your home country whether before or after. This means that the Spanish will won’t overrule your national will and affects only your Spanish estate – providing your national will holds no provisions on Spanish assets.

2. Drawing up a Spanish will may help your heirs mitigate their tax bill. There’s a deadline of 6 months as from the time of the testator’s demise to file and pay Spanish Inheritance Tax. You can request a one-time six-month extension or deferral within the first five months of the death but heirs may still have to pay the penalty and/or delay interests depending on how late they actually pay (totaling 12 months). You can also request to fraction the IHT paying in instalments up to five years. After the six months deadline has elapsed your beneficiaries will incur in penalties for late payment typically ranging from 5%, 10% and 15% if paid in the next 3, 6 and 12 months as from the said deadline. If payment is made after 12 months from the deadline a surcharge of 20% is applied besides the accrued delay interests. Bear in mind that deposit monies held at a bank will be frozen upon death – access to them will be restricted until the IHT is settled with the tax authority.

Spanish wills have the advantage that they can be executed almost immediately whereas a UK or Irish one will no doubt exceed the six-month deadline attracting penalties from the Spanish Tax Office for late payment. The reason is that a Grant of Probate must be followed in your home country which takes a long time in my experience and besides is fairly expensive. It is usual that foreign wills take in excess of a year or more to be executed in Spain. This translates into higher expenses borne by your beneficiaries due to the surcharge for late payment incurred on surpassing afore mentioned six-month deadline.

So in a way, making a Spanish will helps to mitigate your heir’s tax bill as it will ensure they will be able to file IHT within the stipulated legal time frame of six months without attracting penalties and surcharges which could have been so easily avoided.

3. Drawing up a Spanish will saves both money and hassle. On making only a national will your beneficiaries will have to translate all documents (death certificate, will) into Spanish by a sworn translator, notarise them and affix to each of them the Apostille seal of the Hague Convention of 5th October 1961. They will also have to obtain a Grant of Probate which must also be translated into Spanish and apostilled. Additionally a Certificado de Ley (certificate of legal compliance) may be necessary explaining the inheritance procedure in a foreign country.

The above greatly – and unnecessarily I may add – increases the expenses for your beneficiaries besides delaying significantly the whole transfer of estate procedure; thus attracting the penalties highlighted in my point two above. A Spanish will eliminates the need to follow all the above steps.

4. Spanish wills are stored safely at no extra charge. On you making a Spanish will you will be given only a “copia simple” (simple copy) or “copia autorizada”. The original is stored by the Notary in his files for record. The Notary will send off to Madrid the details of this will to a registry known as “Registro General de Actos de Última Voluntad” (Central Registry of Last Wills) for safekeeping. Your beneficiaries can always request an authorised copy (“copia autorizada”) of the testator’s last will from the Notary who witnessed it. You can always know before which Notary it was made (if you happen not to know it) by means of requesting a “Certificado de Últimas Voluntades” from the aforementioned Central Registry of Last Wills. It’s just an A4 sized sheet of paper from the Ministry of Justice with the seal of the said registry which specifies which Spanish Notary witnessed the last will and the date on which it was made. The latest will always overrule any prior will unless specified otherwise.

Should you lose your copy, the notary office burn down or you simply don’t know before which Spanish Notary the will was made don’t panic, it doesn’t matter really. All Spanish will’s details are stored safely in the said registry free of charge. One can always request a copy and they will let you know before which Notary it was witnessed if you believe you are a beneficiary. You will have to provide an original death certificate (translated into Spanish with the Apostille seal affixed if the death occurred abroad) and the original “Certificado de Últimas Voluntades” (Certificate of Last Will). The Spanish death certificate is obtained from the civil registry in the municipality in which the death took place.

Be wary of opportunistic companies – read con – that charge you an annual fee to store ‘safely’ your Spanish will with state-of-the-art technology. As read above, this is unnecessary and they are just taking advantage of you.

5. Spanish wills drawn up before a Notary Public (Open wills) add security. Making a will is a personal act. It cannot be granted by means of a proxy. Normally these wills are set out in double column (Spanish and your native language) so you fully understand what you are signing. They are drafted by your appointed lawyer. If your command of Spanish is low it will be compulsory you draw up the will assisted by a translator (which can be an acquaintance with a good grasp of Spanish or typically your own lawyer) who will also sign it. The Notary will read out aloud the will in Spanish to make sure you fully understand and agree with its content. All this adds to the security on you granting a will in Spain.

6. The content of a Spanish will is governed by your own national laws. This means that you are not constrained by Spain’s forced heirship rules. Additionally, If you are British or Irish you have free testamentary disposition in Spain meaning you can make a will exactly the same as you would in the U.K. or in the R.O.I. albeit with all the additional advantages I’ve highlighted above for your loved ones.

Right, you’ve convinced me – what’s the next step for my heirs?

Once heirs have all three documents:

1. Original death certificate
2. Certificate of Last Will
3. Notarised copy of the testator’s last will

They may now obtain what is known as a Deed of Declaration of Acceptance of Inheritance (‘Escritura de Aceptación de Herencia’) before a Spanish Notary Public. With this deed they are now able to file, pay and lodge the death duties.

Only once IHT is paid and lodged – never before – will the property be registered under the beneficiaries’ name at the Land Registry where the property is located. Once registered, the property can be disposed of freely i.e. they can sell it on. Heirs cannot mortgage or sell any of the estate’ assets, such as the Spanish home, to pay IHT as it still doesn’t belong to them legally. This is something that escapes many as they are banking on the Spanish estate itself to foot the tax bill – won’t happen.

In Conclusion

It is important to plan ahead to mitigate IHT, especially on large estates. A specialised lawyer can greatly reduce or even eliminate completely exposure to this tax. IHT rules vary widely from one region to another. There’s an ongoing trend to abolish IHT in Spain.

Ideally foreigners should make two wills; one in their home country ruling on their national assets and a second Spanish will drawn up in Spain which will rule exclusively on their Spanish estate. Spanish wills can be drawn up in Spain (Notary) or else at a Spanish consulate.

A Spanish lawyer can assist you both making and executing one.

“In this world nothing can be said to be certain, except death and taxes” – Benjamin Franklin.

Founding Father of the United States. Exceptionally gifted scientist, inventor, diplomat, writer, printer, postmaster and political theorist. Even politician in his spare time; nobody’s perfect.

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in inheritance, taxation, litigation and conveyancing. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

Legal services Larraín Nesbitt Lawyers can offer you

• Probate and Succession
• Spanish Inheritance Tax Assessment Report (SITAR)
• Making a Spanish will
• Death Certificate

Related articles

• New EU Regulation to be Passed on Succession and Wills –18th May 2010
• EU Pulls the Stops and Vows to Put and End to Inheritance Taxation Discrimination on Non-Resident Beneficiaries Inheriting in Spain – 20th May 2010
• Non-Residents: Six Advantages of Making a Will in Spain – 8th August 2012
• Buying and Owning Spanish Property through Companies: Pros and Cons – 7th March 2014
• Taxes on Selling Spanish Property – 8th December 2014
• Spanish Wills and Probate Law in Light of European Regulation 650/2012 – 8th January 2015
• Changes to Spain’s Inheritance and Gift Tax Law – 21st February 2015
• Dispelling Spanish Inheritance Tax Myths – 8th August 2015
• Spanish Inheritance Tax for Non-Residents (Part I) – 21st of February 2016
• Spanish Inheritance Tax for Non-Residents (Part II) – 8th March 2016
• Inheritance Tax Novelties in Andalusia. FAQ on IHT – 8th September 2016
• Which beneficiaries are hit worst by Spanish Inheritance Tax (IHT)? – 2nd June 2017
• Non-Resident: Why you need to make a Spanish will – 24th June 2017

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.009 and 2.012 © Raymundo Larraín Nesbitt. All rights reserved.

On buying property in an urbanisation, or block of flats, you automatically become a member of what is known as a “Community of Owners”, CO for short. The CO is composed of all the owners of property within the same development or building. This is a revamped article from my original article dating back to June 2.009.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8^th of July 2012

Original article from 26th June 2.009

Introduction

Community of Owners is an article which gist is to provide some guidance on what becoming an owner in a community entails, with particular focus in Andalusia.

I strongly recommend reading the law itself as I have considerably abridged the sections pursuant to it, on reviewing them, giving only a brief overview of what they entail.

This is a link to the Commonhold Act in English as amended by Law 8/99 & others, courtesy of Castillo Traductores.

General Legal Framework

There is a legal framework acting nationwide as the backbone to all communities in Spain, set out by the Commonhold Act 49/60 (aka Ley de Propiedad Horizontal, Horizontal Property Act, or else Commonhold Act) and by the Spanish Civil Code (arts 396 et seq).

The Law on Horizontal Property was amended most significantly by Law 8/99, amongst others, to update it to social reality.

Bylaws and Community Rules

In addition to the above general laws, the day-to-day running of each community is really determined by the Communities’ Bylaws (Statutes) which are drafted at the time of lodging the Master Deed (aka Escritura de División Horizontal or Horizontal Deed). Unanimity is required to amend either the Master Deed or the Community Statutes (arts 5 and 17). So in practice it’s quite a feat to change either of them.

That’s why a community may, at its own discretion, approve its own Community Rules (in Spanish Normas de Regimen Interno or Normas de Funcionamiento de la Comunidad de Propietarios), which are not to be confused with the above Community Statutes. These Community Rules need only a simple majority vote to be approved and amended so as to waive the unanimity rule. They allow for great flexibility and will rule, for example, on communal services such as garbage collection or the use of communal facilities such as the swimming pool or lifts. They cannot rule on matters reserved only to Bylaws.

Normally, on buying off-plan, there will be a clause by which the purchaser allows the developer to draft and lodge the Master Deed as well as the Community Statutes at the Land registry. Owners may later on amend these, complying with the strict majorities that are required by the Commonhold Act (unanimity).

This means that every development may enact their particular laws governing it but always subject to, and, in compliance with the general legal framework that must be respected at all times. Bylaws will rule for example the Community’s governing bodies such as the need or not of the role of a vice-president or how must the owners be notified in advance of an owner’s assembly.

Bylaws stem from Spain’s Commonhold Act and adapt it to the requirements of each particular CO. That’s why each CO has its own unique Bylaws, tailored to suit their individual needs.

Naturally, in this article I can only offer a general overview of the shared legal framework and concepts which underpin all communities without focusing on particular Bylaws, which are unique to each CO.

Commonhold Quota

On drawing up the Master Deed before a Notary, every property within the community is assigned a quota or percentage thereof. This quota is composed both of privative and communal elements which are assigned to each property. Store rooms and garages are included as well for this purpose.

A quota is important mainly for two reasons:

1. The expenses of the community will be allocated in proportion to your quota. So the larger the quota, the more you will have to contribute. These can be paid monthly, bi-monthly or even quarterly depending on the Community Rules.
2. Secondly, on voting at owners’ assemblies, the quotas need to be tallied for majority vote purposes. So, each owner does not equate to one vote. There may be a single owner, such as a developer, holding a significant communal quota which translates into great voting power. The resolutions reached bind all units within, regardless of whether they cast an opposing vote as majority rules apply (read below).

Owners’ Duties

Section 9 rules them in detail. The main duty will be, of course, to contribute to the maintenance and financial upkeep of the CO.

Failure to pay the community fees will result in the CO placing a lien against your property and possibly auctioning it off. This legal procedure in Spain works surprisingly efficiently. You have been warned!

This important article mentions as well the endowment of the communities mandatory reserve fund, in accordance to each owner’s commonhold quota. The purpose of this fund is to create a financial pool for the maintenance and repair of the building i.e. façade’s flaked painting or lift repair work. This reserve fund shall be endowed with an amount not lower than five percent of its last ordinary budget. Its funds will be used as well to pay for the building’s insurance cover.

On buying a resale in a community, the new owner will be held liable for the prior owner’s communities’ debts for the current year of transfer of ownership as well as the natural year immediately precedent (art 9 e). The property itself will be burdened with a lien for unpaid communal debts.

Which is why under law, the signing of the deed of transfer of ownership requires a Communities’ certificate stating that communal fees are up-to-date for that unit, signed by the communities’ administrator. The purchaser can however waive this requirement voluntarily – not advisable.

It is also very important to find out – prior to buying a property in an urbanisation – what your quote translates to in terms of monthly contribution. Some of those private gated communities that lure you with their breath-taking views, lush tropical gardens and dream-like infinity pools command steep monthly fees. You have been warned!

Communities’ Governing Bodies

Art 13 establishes the governing bodies are the Owners’ General Assembly (whether annual or extraordinary), the president (vice-presidents are optional), the secretary and the administrator.

Presidents and vice-presidents must be appointed from among unit owners only. The roles of secretary and administrator can be held by unit owners as well as by outsiders providing the latter hold the necessary professional qualifications and are legally licensed to perform such roles.

The Statutes will be the ones which detail exactly what roles exist in each Community of Owners.

Owners’ Assemblies (AGM’s and EGM’s)

At least once a year an AGM will be called to approve the budget and accounts. An EGM may additionally be called at anytime, needing 25% of the unit owners’ quotas.

The notification must be given with a minimum of 3 days’ notice. This creates practical problems to non-residents owning second homes in Spain. Therefore, communities with a high number of non-resident owners may include in their Bylaws more realistic notices of, say, 14 days and to be notified by e-mail in addition to placing it on the Community’s Notice Board. There’s freedom and flexibility to rule on this as each community deems fit in accordance to their own needs and circumstances. Logic should prevail.

Majority and Unanimity Votes

Section 17 deals with when unanimity votes are required. Basically, unanimity is necessary for modifying the rules contained, either in the Master Deed or in the Community’s Bylaws.

A majority vote (three fifths of the owners’ assessed quotas) is required for things such as the lift service, janitors, security services or any other common service or facility. This type of majority vote will be the one used to decide on the Community Rules. Proxy votes are also allowed. Only owners who are up-to-date with their community fees may vote at owners’ assemblies.

You may find that in new unsold off plan developments, a developer may hold the majority vote as he still holds a large stock of unsold units. Conversely, it can be its lender, if they have taken over the developer’s units. Either way, they are both obliged to contribute to the communities’ upkeep, paying their communal fees in proportion to their communal quotas, like everyone else.

Resolutions of the General Assembly

Section 19 deals with the recording of the resolutions reached. They will be recorded in a book of minutes, validated and stamped by the Land Registrar.

A copy of the meeting’s minutes will be sent to each owner with the adopted resolutions following the AGM or EGM.

The secretary will act as the custodian of the general meetings minutes book.

Challenging General Assembly’s Resolutions

Section 18 rules on how assembly resolutions can be challenged at court. I’ve written a specific article on the matter due to its complexity: Community of Owners in Spain: Challenging Assembly Resolutions – 21st October 2011.

This can be done on three accounts:

a) When such resolutions are contrary to Law or the Community Statutes;
b) On them being seriously detrimental to the interests of the community and benefit one or several unit owners.
c) When they are seriously detrimental to some unit owner who has no legal obligation to sustain such detriment or when they have been adopted in abuse of power.

There are four deadlines depending on the matter. The most important deadline is the 3-month-rule. Or else a year if a resolution is against the Law or the Community Statutes. I would always advise challenging a resolution before the three-month deadline is up as a judge may not agree with you that the adopted resolution is against the law or community statutes, in which case you wouldn’t have a year to challenge it, only the said three months.

Only owners who are up-to-date with their community fees may challenge community resolutions before a court. Alternatively they can lodge the owed amounts before the law court prior to litigating. You can only challenge assembly resolutions at court.

Property located in Andalusia

Following arts 7 & 9 of Decree 218/2005, off-plan vendors of property located within the autonomous region of Andalucía must hand over the DIA (Documento Informativo Abreviado) to purchasers. The DIA is the Spanish equivalent of the UK’s HPI, Home Purchase Information, or Seller’s pack. Both the Community’s Statutes and Community Rules must be included in the DIA pack.

Conclusion

The bottom line is that Community Statutes, or Bylaws, are the ones that really rule on the everyday life of each community and are unique. No two communities hold the same statutes. There is a general legal backbone common to all communities in Spain which are the Commonhold Act and the Spanish Civil Code.

It is always highly advisable that, prior to purchasing property on a development, you always request a copy of the Community Statutes, known in Spanish as Estatutos de la Comunidad de Propietarios, as well as the Community Rules, if existent. You may avoid unpleasant surprises, such as communities that ban pets or even piano players!

Communities of Owners should be run – in theory – like small tidy democracies.

Well, that’s the theory anyhow. In practice, they resemble more dictatorships with full blown egos as many owners can vouch for. I would advise you bring your tin hat to owners’ assemblies and prepare for some serious and protracted trench warfare, whereby each owner will hold his own ground, yielding occasionally to fleeting interests.

Maybe it’s a good idea to bring along a Spanish lawyer as added reinforcements!

Good luck; trust me, you’ll need it.

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in conveyancing, inheritance, taxation, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

Legal services Larraín Nesbitt Lawyers can offer you

• Community of Owners
• Property Litigation

Related articles

• Challenging Assembly Resolutions (AGMs and EGMs) – 10th October 2011
• Community of Owners Insurance Policies – 8th August 2013
• Decree 218/2005. The one about rentals and properties for sale in Andalusia – 8^th August 2016

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.009 and 2.012 © Raymundo Larraín Nesbitt. All rights reserved.

Squatters are a growing nuisance in Spain. If you own property there you need to know what steps to take to avoid problems with squatters.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8^th of June 2012

Photo: Squatting Internationl Symbol

Introduction

As hinted in the conclusion of my article Adverse Possession in Spain Explained, from last year, squatters are on the rise. The underlying causes are many but can be narrowed down to the following ones:

• It is estimated there are over four million properties standing empty in Spain (source). From these, three quarters are second homes for both nationals and foreigners who use them mainly during the summer season. The remaining quarter are up for sale, whether resales or off-plan.
• ‘Official’ national unemployment has reached an all-time high of 25%, which eerily echoes the exact number reached by the U.S. during the Great Depression (source). In some autonomous communities the average borders 40%. While it’s true that many who are officially living off the dole are in fact working off-the-books (source), this is overrated. The main reason why these people are not starving (or indeed starting social riots) is that in Spain extended family has traditionally acted as a safety net in times of need along with prominent charity institutions such as Caritas (which are now overwhelmed).
• National youth unemployment (under 25-year-olds) is well over 50% and in some communities exceeds 60%. This quadruples the world’s average and doubles the European rate (source).
• As of April 2012, 1.7mn families in Spain have all their members unemployed. A 25% increase over the previous year. (source)
• 700,000 people have become long-term unemployed – meaning they haven’t worked for the last three years (source).
• In the years spanning from 2007 to 2011, there has been over 350.000 bank repossessions (source).
• And last, I wanted to add that one in four minors in Spain are now living below the poverty threshold (two million to be exact). Children who only a few years ago would have been regarded as coming from working middle class families (source).

Yet politicians, and Spanish media at large, insist in calling it a ‘recession’. I beg to differ.

With the above daunting scenario unfolding in Spain, it shouldn’t come as a surprise that squatting is on the rise; what is surprising are its – still – relatively low numbers despite the severe ongoing financial turmoil. Hopefully after Spain’s bailout this trend will curb down.

Insight into the Squatter Movement

Squatting (popularly known as ‘okupas’) is a militant well-organised pacifist movement with a social agenda that flourished in the 80’s in eastern Spain, particularly in Barcelona. Entire communities of youths ‘peacefully’ occupied empty properties, even whole buildings, many of which were derelict and in a state of disrepair unfit to live in by any reasonable standard.

Surprisingly enough, a large part of the population actually support them as they are seen as ‘beneficial’ for neighbourhoods because they are bent on setting communities in what were previously deprived areas, stricken by petty crime, recovering them for society at large. On following their social agenda to occupy derelict property, which is the object of planning speculation, they transform what were previously hotbeds of drug users into productive communities from which whole neighbourhoods benefit as a result. They are legally assisted by lawyers who are ideologically close to them.

The government, over the next decade, clamped down on such practice amending our criminal code in 1995 and then again 2010 to punish this burgeoning movement.

Financial turmoil breeds new class of squatters

The key difference with the above, is that many of the current reported cases are driven by need, not by personal beliefs, as a direct consequence of the financial crisis we are in – hence my introduction to the article. We are no longer talking of well-organised social outcasts following political or social agendas driven by utopian ideals of shaping society. The profile of new squatters are struggling middle class family men that have undergone a repossession and are now finding themselves forced to occupy somebody else’s property to lodge their family. They are not militant members of an organised social movement, they merely act out of necessity. One of the first things squatters will do is change the house locks and ‘empadronarse’ in the property at their local town hall which allows them even more rights.

The good news for foreign property owners is that professional squatters tend to stick to large Spanish cities. You won’t normally find them roaming the costas, much less in urbanisations or golf resorts. They are particularly fond of the region of Catalonia and specifically of Barcelona – they may be squatters, buy one cannot deny they have good taste.

The new breed of squatters, acting out of need, isn’t particularly fond of foreigner’s homes either typically preferring Spanish homes, even their ex-homes; now bank-owned post-repossession.

Criminal Code

A reform in 1995 was enacted to tackle this legal problem. Squatters – smartly – will not break into a property that has inhabitants so as not to be criminally prosecuted. They will only target empty properties, such as second homes, which are not under such strict legal protection. They will rarely use violence. The only article that dealt with this problem pre-reform was art 202 of the Spanish Criminal Code which referred to illegal trespassing. However, it required that the property be dwelt at the time of the squatting.

So what happened if a property was uninhabited at the time of the break in? There was a legal loophole which squatters exploited to the fullest. The ensuing social alarm brought the need to address this legal void.

A new section was introduced by lawmakers in 1995 to accommodate this new disturbing social trend. For the first time this crime was ruled in our criminal code.

Art 245 of the SCC rules this case. The first section punishes using violence or intimidation to enter – or remain – in a dwelling (which is empty) against the will of the owner. Section two punishes the former when no violence is involved.

Surprisingly, the reform only punishes squatters with a mere fine for ‘peacefully’ occupying an empty property or remaining in one against the will of the owner – no jail sentence! The reasoning behind this is that it is a ‘non-violent’ occupation of an uninhabited property. Go figure.

Squatters can, and usually are, accused additionally of a number of associated crimes such as destruction of private property, resistance and disobedience to public authority, public disorder, illegal connection to utility supply, insalubrious living conditions, noise making etc. All these can be used in addition to build a case criminal case against them.

Distinction between the concepts of ‘allanamiento de morada’ and ‘usurpacion’

For the sake of clarity, the former is ruled in art 202 of the Spanish Criminal Code and punishes illegal trespassing. It is devised to defend legally someone who has a right of abode in a property (is actually permanently living inside it) at the time squatters force themselves in – they work in groups. Evicting a squatter in such a case is swift.

The latter was brought in with the reform of 1995 and was geared to specifically target squatting. It is thought for properties that usually stand empty all year round, such as holiday homes, and protects the registered owner, the title holder. It is ruled in art 245 of the SCC.

Can’t I just walk in and change the locks to my property?

No. On squatters taking over your property, you lose material possession of it. Meaning should you attempt to enter it, despite a property being rightfully lodged under your name at the land registrar and you paying all utility bills and even mortgage repayments, it will be regarded as ‘illegal trespassing’ for which you can – and will – be legally prosecuted.

I strongly advise you to seek legal advice prior to taking a rash decision that may land you in a Spanish jail.

Legal Options

1. Criminal Procedure

It begins with a ‘denuncia’ at the local police station. Anyone can file it, as it is a public crime.

Advantages: It is the procedure that punishes squatters the harshest – but only if violence is involved and the property was being lived in. Professional squatters will avoid using violence.

Disadvantages: Multiple.

– Because it is the legal option which punishes them the hardest, it is also the option that protects them the most. They will have many legal safeguards in place protecting their ‘rights’.
– It is slow, even taking years.
– It is expensive.

2. Civil Procedure

The most frequently used in addition to the above.

Advantages: Faster than the above.

Disadvantages: The squatters will not be removed from the property until a judge rules it in a sentence. This may take some time.

3. Administrative Procedure

This procedure is limited to administrative authorities on public assets. It will not be available to private individuals.

Advantages:

– Swift, within the next 48 hours of the occupation. Normally longer.
– No need of a judge’s ruling to evict squatters. Eviction is determined by an Administrative authority, such as a politician if signed within the next 48 hours.

Disadvantages:

– The property must belong to a public administration, leaving out privately owned property.
– Can only be done within the first year of squatting. After a year, the appropriate procedure to be followed must either be a Criminal or Civil one, as a judge must rule on the matter having the owner lost possession of the property.

Illegal Options

The ensuing options, though followed by a minority, are illegal and you may be criminally prosecuted on following some of them – even leading to a prison sentence. I am in no way advocating them, merely adding them as another option which – in my opinion – should not be followed.

4. Taking Justice into your own hands

Advantages:

– Very swift.
– Depending on how it is done, cheap.

Disadvantages:

– You may be criminally prosecuted for hiring thugs, for using physical violence or intimidation, for breaking into the property etc.
– You will have a criminal record if sentenced.

5. Negotiation

Same as point four above, I do not condone this option.

Advantages:

– Very swift.

Disadvantages:

– Is tantamount to caving in into blackmail.
– May prove expensive depending on the amount agreed as ‘compensation’ to ‘free’ the property.
– There is no guarantee that squatters will not return. In fact, it may backfire, as new squatters may be drawn to occupy the property knowing the owner is willing to pay to have them removed.

6. Squatting the squatter

This option consists in outwitting them using their own tactics against them, exploiting the law in your favour – just like they do. You become a squatter on your own property. You will wait patiently outside, until the squatter leaves the property for whatever reason. Seizing the opportunity of a vacant property you then force your way in and immediately proceed to change the locks – again.

Should the police be called in you can always claim that it is your home, showing the title deed and that you’ve decided to change the locks. You will not mention at all the word ‘squatter’ and in any case you can always report them if they foolishly tryin to force themselves back in your property. Squatters will be hard pressed to sue you, as you are after all the legitimate owner.

They will not try to break into the property once you are inside as this would be a crime punishable with jail, which is exactly what they try to avoid at all costs. What you cannot do is first file a ‘denuncia’ against them and then pursue this option as you would surely be prosecuted – you cannot hedge your bets pursuing both options; it’s one or the other. If you follow this option you must forget requesting police assistance and stick to your guns. Just to make it clear, I do not advocate this option.

Advantages:

– Very swift.
– Depending on how it is done, very cheap.
– No violence necessary – there should be no violence at all.
– You can always prove you are the rightful owner if necessary i.e. Title deed, witnesses

Disadvantages:

– Cunning but not very legal. If along time has elapsed, such as weeks or months, squatters may have already registered themselves as inhabitants in the property at their local town hall, in which case your legal position would be tricky to say the least. This would considerable weaken your legal stand and may lead you to being prosecuted.
– You’ll need to be in full control of your emotions.
– Professional squatters will work in teams and they will rarely make the stupid mistake of leaving a squatted property empty. However, not all squatters are professionals as explained in the article’s introduction. If you force your way in while there’s someone still inside you may find yourself being prosecuted for illegal trespassing (regardless if you are the owner). So make sure there is no-one inside at the time.

My Advice

Depending on the personal circumstances of your case the procedure will vary. It can be very fast or slow (years). If there are witnesses, i.e. neighbours, and it has just occurred squatters can be immediately evicted fast-tracking it. However, if time has elapsed, as in days, a legal ruling may be necessary which may delay the procedure furthermore. Most foreigners won’t be as lucky and will only realise they’ve been squatted on booking a holiday and flying over only to find their second home ‘invaded’.

If there is violence or intimidation involved, or if there is actually someone living at the property at the time of occupation I advise you follow a criminal procedure.

Professional squatters will never resort to violence or intimidation to avoid prison sentences. Normally you are better off pursuing a civil procedure against them to have them removed.

Or you can take your chances following one of the above non-legal options – not recommended.

The average time to fully evict a group of squatters is 18 months. This may vary, depending on the cases’ circumstances, as described above. Personally I do not like the current laws on the matter and find them both slow and ineffective. Let’s hope lawmakers address the legal shortfalls in the future adopting a harder and more decisive stance to this worrisome trend. Property owners deserve more legal protection; after all, they pay taxes – well, most do anyway.

In Conclusion

I would advise an owner who has fallen victim of squatters to seek immediate legal counsel. This is necessary because, depending on the circumstances on how they broke in, different legal options fan out. Rushing in to call the police or file a denuncia against squatters – though human – may not be in your best interests.

Speak with a seasoned lawyer first, you may be surprised.

Owners that take justice into their own hands, particularly on using violence and/or intimidation, may find themselves being criminally prosecuted and remanded in custody pending trial.

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in conveyancing, inheritance, taxation, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

Legal services Larraín Nesbitt Lawyers can offer you

• Property Litigation
• Tenant Eviction Service

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.012 © Raymundo Larraín Nesbitt. All rights reserved.

A rent-to-buy contract let’s you enjoy a Spanish property now, whilst leaving the door ajar for purchasing later, if house prices continue to fall in Spain (as most people expect them to!).

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8^th of April 2012

Original article from 5th November 2.009

Introduction

It has become Spain’s favourite sport to second-guess on when the real estate market will pick up again. Reputed experts, both national and foreign, are jumping in giving all sort of contradicting timelines for its recovery i.e. 2014, 2017 and the most pessimistic ones on 2020. Although it may be fun to indulge on this sport on whether it will be an “L”,“U”,“W” or X-shaped recovery the gist is that it remains a fairly futile exercise as everyone – both experts and laymen alike – are basically clueless on where the market will be heading next. Property prices are now cheap but who is to say they won’t be cheaper next year or even the year after?

As appealing an amusement as may be, I believe it is impractical and rather sterile for most would-be buyers who are now sitting on the sidelines waiting for events to unfold, as in hindsight very few people call the market bottom correctly and most miss out on a lifetime opportunity to snatch a bargain in the dip.

These potential buyers who are now sitting on the fence musing over how much lower house prices can fall may in fact already – unbeknownst to them – profit from today’s market turmoil. A rent-to-buy contract does exactly that. It is an interesting alternative worth looking into in times of uncertainty (such as these) on where house prices will be heading next. In this article I will show you how to take advantage of today’s market uncertainty turning it around in your favour.

A lease purchase simply removes all the associated angst on whether one should still be holding out or else be moving in for the kill. The truth of the matter is that no-one has a clue on when the market will finally hit rock bottom. And even then it may be lingering on a valley for quite a while until it picks up again. So it may be worthwhile playing it smart following this rent-to-own option, jumping in today at tomorrow’s prices.

What is a Let-To-Own Contract?

This type of contract, “contrato de alquiler con opción a compra”, allows you to lease a property, whether off-plan or resale, with an option to buy it within a given deadline normally spanning 2 to 5 years. The main advantage is that the full let is discounted from the final purchase price. So if you finally opt to buy the property within the deadline, the paid rent (rental premium) will be deducted in full from the pre-agreed sales figure. Alternatively, should you choose not to, you can simply walk away and move on.

This contract has multiple advantages for both grantor and grantee in the context of a deflationary environment – such as the current one –. If you are of the opinion that property prices in Spain will be falling steadily over the next years, rent to buy will appeal to you.

The advantages under normal circumstances far outweigh the potential disadvantages. It is worth noting that the below listed advantages are almost certain to take place under normal circumstances; however, the disadvantages may – or may not – take place, which is why I label them as “potential”.

Advantages

For the option holder

Foremost is the flexibility it allows you. You can actually withdraw from the contract as if it were a normal Tenancy Agreement should you spot a better opportunity within the next years, forfeiting the lease of course. At no time are you forced to buy the property at the end of the deadline, it is your choice. This lack of commitment actually enables you to be on the prowl looking out for other opportunities without being tied down.

As written in the definition, the rent premium is deducted in full from the sales price, so it is not forfeited as it would normally be the case in a Tenancy Agreement.

The pre-agreed price of the property stipulated within the contract is normally well below the current market price so as to provide a reasonable incentive to prospective buyers. A markdown varies from contract to contract, but in my opinion should span 20 to 30 per cent discount on current sales prices to warrant signing it. This helps to offset the risk of property prices decreasing even further in the near future (next couple of years) as the pre-agreed sales price has already factored this in. By the same token, should property prices rise again, the pre-agreed price is respected. Win-win.

It allows you the opportunity to scout the area and know your neighbours well before you move in for the kill (commit to purchase). Did you know your next door neighbour may be a local DJ playing music late into the night? Well you could have easily avoided all those sleepless nights if you had first rented the property rather than buying it outright. When you are a foreigner it is important you carefully choose an area where you can blend in nicely. For example, not all areas are family friendly, so it may take a while until you find one that ticks all the right boxes.

If you are still based abroad, and find yourself constantly commuting to Spain, this contract is a great option as it gives you freedom and you only commit if you decide so. No strings attached.

You may freely agree on the time frame to exercise the purchase option tailoring it to suit your needs. Normally they span 2 to 5 years but can agree elsewise.

In some contracts you may assign the option to buy. This allows for even greater flexibility as the would-be buyer can sell on the right to a third party allowing for a speculative angle.

Unlike the UK, there is no option fee to be paid on exercising the option right.

For off-plan you can actually claim back the VAT you are overpaying for the lease which will be set at 18%. Buying off-plan freehold property has currently set a VAT of 8%. You are entitled to claim back the difference only if you exercise the option to buy from a developer. It is advisable there is a clause specifically worded on this point.

You are actually living in the property that will be yours in a near future without being riddled now with the associated stress of applying for a mortgage loan. Although you may not qualify for a mortgage loan at the present time you may qualify in a few years’ time when the credit market ease’s up again. Currently lenders in Spain are focusing on lending only against properties they own (because they are desperate to get rid of them).

If the property is within a Community of Owners you may come to know of internal problems which are non–apparent. You may possibly never have come to knowledge of these quirks unless you had gone through the hassle of leasing the property first. Not least is worthwhile mentioning that you will not be expected to pay the Community fees, these will be taken care of by the landlord.

The applicable laws will normally be Spain’s Tenancy Act (Law 29/1994), the Spanish Civil Code and the Private Contract of course. Tenancy laws in Spain are historically biased towards tenants so it’s always good to be protected by them being a tenant. I advise lodging this contract before the Land Registry.

For the option grantor

The advantages are self-evident. Foremost you actually have a tenant who is foremost interested in buying the property not just in renting it out, avoiding pesky time wasters altogether. An option to buy actually increases the pool of genuine potential buyers as it makes it easier for them to commit now.

The let can help offset any mortgage repayments, community fees or expenses in general thus avoiding slipping into arrears.

Having a tenant inside should normally ensure the property will be looked after properly avoiding it sitting empty which may lead to break-ins or in the worst cases even being vandalised.

On very long-term options it is normal to implement additionally an option fee. If you’re tenant defaults you can always pocket it besides the let’s deposit and the rental premium. It’s a win-win.

Potential Disadvantages

For the option holder

You are actually letting a property. You must ensure you will be able to meet the let on time otherwise you will be jeopardising the contract. Bear in mind currency exchange rate fluctuations if you’re source of income comes from abroad i.e. sterling pounds or dollars against the euro.

As it’s a let, the rent premium may be revised annually by your landlord bringing it in line with inflation. Spanish Tenancy Agreements are normally referred to the Consumer Price Index (IPC in Spanish).

For very long-term options, exceeding normally 3 years, an additional deposit (option fee) may be requested by the landlord besides the normal 1 or 2 months’ deposit for letting out the property. This may not appeal to everyone of course but it is done as a sign of a serious commitment on behalf of the potential buyer.

The main disadvantage is that these contracts last typically 2 to 5 years and in the interim the landlord’s financial circumstances may change – for the worse – i.e. if the property has a mortgage loan taken against it and the landlord defaults, it may lead to a full-blown repossession procedure. You would still have a right to let the property if it’s repossessed, as the lender must respect long-term tenants, albeit you may no longer have the option to exercise the purchase of the property in the same conditions as you agreed to initially. You would actually have to raise the funds now and pay off the outstanding mortgage on the property if you wish to buy it off from the bank. Not to mention that if you additionally paid an option fee you would likely forfeit it in the event of a foreclosure. But truth be said, lenders are showing themselves very flexible with properties they own allowing for plenty of room to negotiate. It is a buyer’s market after all and they are unlikely to let go easily of a potential buyer caving in where necessary to secure the sale.

Buyers prefer long-term options to build up equity and in the interim keep an eye on where the property market will be heading next. Short-term options appeal to vendors but on doing so they will be reducing the pool of potential buyers as few buyers will be interested. It’s a tug of war on which a consensus, balancing both opposed interests, must be sought. At the end of the day concessions will have to be made by both parties.

An important problem to consider is committing yourself on a pre-agreed price that on the long run, despite the hefty built-in discount acting as an incentive, may still be above the current market price. Obviously it makes no sense to execute the option if you are buying a property above the current market value. It would then be a case of a lost opportunity; what could you have done with the rental money if you hadn’t signed this contract? At no time are you forced to buy the property but you will of course forfeit – in full – the paid rental (opportunity cost) negating the main advantage of pursuing a let-to-buy. If you are of the – gloomy – opinion that property prices will be cheaper in five years’ time, you may want to hold out a little longer until you sign a rent to buy contract.

For the option grantor

From the grantor’s perspective it’s that you are letting your Spanish property with a potential view to selling it on at some point in the future. Letting entails the risk of the tenant defaulting becoming a non-paying tenant in which case a formal eviction procedure would have to be followed before the law courts. This can however be mitigated to a great extent requesting for long-term options (those exceeding 2 or 3 years) a deposit (option fee) from the option holder as a token of good will or else you can always include an arbitration clause in lieu of having to resort to the civil courts which brings down significantly the timescale – and costs! – on having the non-paying tenant removed from your property.

The opportunity cost. On signing this agreement you will be held legally bound for whatever timeline you’ve agreed upon. This is particularly annoying in the event of a cash-buyer springing out of the woodwork knocking at your door… Although it may sound unrealistic given today’s bleak outlook, should the market pick up again this is bound to happen and must be carefully weighed in. By accepting a rent-to-buy contract you are implicitly gambling the market will remain depressed for the next years. It makes no sense whatsoever to grant this option if you expect the market to rebound in a couple of years.

It goes without saying you will have to carry out a thorough screening procedure on potential candidates weeding out unsuitable profiles (bad debtor´s list). Fortunately you can now rely on external databases, such as FIM’s, which can greatly assist you eliminating professional non-paying tenants that abuse Spain’s legal system.

In Conclusion

Rent-to-own schemes may not be everyone’s cup of tea albeit it is a very interesting option to pursue if you’re serious and committed on buying a property below the market value (BMV) taking advantage of today’s market turmoil. On following it, you will simultaneously retain a certain degree of freedom should either your personal circumstances – or the markets’ – change. Buying property is always a serious decision for most people and this type of contract actually allows you the flexibility to live in it without forcing you into buying it.

When the market picks up again in “X” years’ time (take your pick), these contracts will no longer be as widely available as they are today both on off-plan and resale property. It is precisely the current financial uncertainty which drives landlords and developers to offer this type of contract that may benefit both them and the would-be buyer (option holder).

Those who are resolute on buying a cheap property, which has already a pre-agreed significant built-in discount in relation to today’s prices, may already profit from the current market uncertainty removing all the associated stress – and potential lost opportunity cost – of second-guessing where today’s property market will be heading next. Might as well leave all the guessing-work to experts throwing darts, however fun it may be, and just play your cards right. Mind you, these “confounded” experts do seem to always get it right… in hindsight.

And to close this article, I recommend you hire a registered Spanish lawyer to either draft this contract or else to review an existing one (if it’s the case) so as to avoid rash decisions that may lead you to future losses.

Remember: only because a contract is labelled as a “let to buy” it doesn’t automatically qualify it as a good deal (it could very well be a raw deal); especially if the built-in discount is not high enough to offset the risk of prices decreasing over the next years – very likely.

“All that glitters is not gold” – Aesop.

Ancient Greek fabulist or story teller.

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in conveyancing, taxation, inheritance, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

Legal services Larraín Nesbitt Lawyers can offer you

• Rentals
• Conveyancing – Buying

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Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.009 and 2.012 © Raymundo Larraín Nesbitt. All rights reserved.

The Spanish housing market will recover when the unemployment goes down says BBVA, one of Spain’s biggest banks. Lawyer Raymundo Larraín Nesbitt looks at the new labour reform and how it might lift employment, which might in turn help the housing market.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8^th of March 2012

Photo credit: BBC. Building the Great Pyramid.

Introduction

Spain has the dubious honour of being the country with the highest unemployment rate of all developed countries (OECD), followed closely by Ireland. The causes of this are many and its analysis would exceed the object of this article. However, I will focus on one of the main culprits which has brought about this situation – Spain’s outdated labour market laws.

Labour law in Spain has its roots deeply embedded in the Franco regime. Traditionally it has been overprotective of workers to the point employers regard them more as an obstacle than as a useful tool. It is safe to say that labour court rulings in Spain are biased towards workers. Ironically, these overzealous laws have played out against the workers themselves at a time of great economic weakness fracturing Society, broadly speaking, into a two-tier system of workers:

A. Those with a job. They enjoy a high status of legal protection. To the point that many employers would rather hold on to a bad worker than make him redundant as the severance pay would far outstrip the benefits.

B. The jobless. The losers. They find themselves locked out of the labour market. Particularly affected are young workers, the unemployment rate of under twenty-five-year-olds is well above 50pc. Employers – fearing Spanish draconian labour laws- are highly reluctant to take on new employees, even if required, as labour laws are far too rigid and strict and always biased towards workers. In times of great financial uncertainty employers would rather avert additional concerns and problems and refuse to hire new employees.

This has led to a paradoxical situation, whereby long-standing workers, albeit inefficient, are kept by companies as the costs of dismissal would be prohibitive whilst younger workers, more prepared and with languages, are let go or even not hired quite simply because companies cannot afford the expenses of a dismissal.

The above generalisation helps to explain why Spain has reached all-time record levels of unemployment reminiscent of the Great Depression. Moreover, I believe the official unemployment figures are in fact well below reality. Many young people have flocked abroad seeking new job prospects or else have been forced to extend their studies with the hope of seeing better days. Not to mention the huge amount of people who are studying hard to secure a post as a civil servant which used to guarantee a lifetime free of economic woes. All these are conveniently excluded from the unemployment figures and could easily add over a million to the official unemployment figures.

To give you an idea of how this situation is endangering public finances in Spain, there used to be a ratio four workers for every pensioner; now there is barely a ratio of two workers per pensioner. Moreover, if we take into account not only pensioners but also unemployed and civil servants each active worker is now shouldering – all by himself – a civil servant, or a pensioner or an unemployed on a ratio one to one. Clearly, this is unsustainable. There are scarcely 14 million active workers in Spain and well over 14 million unemployed, pensioners and civil servants. If this troublesome trend continues unchecked, Spain will need to leave the Euro to re-instate its Monetary policy to devaluate its new currency and regain competitiveness. However, Spanish politicians are adamant; they have no intention of leaving the Eurozone and are now addressing the problem of Spain’s weak competitiveness in other manners, such as the current labour reform which in time will lead to lower wages. Much like the trial Greece is undergoing.

As the current Minister of Economy, Mr Luis de Guindos, in Spain phrased it: “Spain needs a very aggressive Labour Market reform”. The aim of this reform would be to get rid of the dead wood and make hiring and firing of workers more flexible. Spain’s Labours laws were far too rigid as they were and locked out of the job market millions of workers because employers feared hiring them. The official line is that the aim of these reforms will pave the way to create a stable legal framework which – in time – will enable growth in the job market. Here’s hoping.

However, the cynic in me sees these changes in law as rather opportunistic. The perfect embodiment to administer bad medicine to an already ailing patient. Lowering wages and smoothing redundancy procedures, making it altogether less onerous for employers. In other words, these reforms will make jobs even more precarious. Wages in Spain are already very low and will be furthermore post-reform. Some economists may argue this is a necessary evil to recover lost competitiveness as Spain faces ruthless competition from third-world countries with more lenient (or non-existing) labour laws. Maybe it is indeed the case; I won’t dispute it. But, being pragmatic, what I find undeniable is that in both the short and medium term, this change in law will make it easier overall to lay off workers and reduce wages. In time, we will see if it actually did contribute to job growth, decently paid jobs that is, not low-pay, dead-end McJobs.

I am of the opinion that Spain needed to address its anachronistic labour laws, which dated back to the Franco era, to make them fall more in line with real world’s demands. I believe this reform should have been implemented more gradually, in a more consensual manner with all opposing forces, rather than just flogged by the ruling government under the pretext of a dire economy. They have chosen a time where the job market is weak and cornered; labour laws have swerved from one extreme to another: from over-protectiveness to almost anything goes. I’m afraid the reform may have in fact been, true to Mr Guindos’ words, over aggressive and perhaps even short-lived as it will surely be challenged by opposing political parties in the near future.

Highlights of the Reform

Royal Decree law 3/2012 came into force on the 12th of February. It brings a slew of changes which I will list briefly in bullet points:

• Unfair dismissals. Severance pay is reduced from 45 days per year worked, down to 33 days per year worked. The maximum amount of months one accrues has been brought down from 42 months to 24. This applies not only to new contracts, but to pre-existing contracts as well.
• Objective dismissals: companies making losses in three consecutive quarters can now lay off staff with only 20 days of severance pay per worked year. Accrued claim is limited to a maximum of 12 months.
• Discounts to employers of up to €3,000 that hire long-term under thirty-year-old workers (SME companies with a maximum of 50 employees). Bonuses on enrolling workers in training courses (acquiring new skill sets).
• Making internal clauses flexible i.e. modifying working hours, changing work shifts (night / day), changing responsibilities and tasks etc. If the worker disagrees with these imposed changes he can request his contract is terminated by the company which leads to a severance pay of 20 days per year worked with a maximum of 9 months accrued.
• Employers are free to reduce wages alleging financial difficulties. i.e. recession
• Forbidden to sign consecutive short-term contracts for more than 24 months.
• Large companies may now ignore the collective labour covenants (“convenio colectivo”) if they are able to demonstrate three consecutive quarters in losses setting out worse conditions than those laid out in the covenants.
• Companies that hire long-term unemployed will receive a discount of €4,000.
• The tax allowance given to woman on returning to their workplace post maternity leave has been eliminated.

In Conclusion

Spain has undertaken the most drastic labour reforms of its short-lived Democracy to ensure its inclusion in the Eurozone and help revive an ailing economy. These reforms will generate great controversy and spark much debate amongst the Spanish society. They are – without doubt – a major milestone in Spain’s labour reforms marking a turning point in Spain’s jobless tide. Let’s hope this is the inflection point from which a new, more robust job market emerges.

The winners of this reform are employers to a great extent and unemployed workers to a lesser extent. The losers are all those that now have a job and have seen their hard-fought rights and benefits significantly reduced.

If you are a worker in Spain, or plan to seek a job in Spain, it is very important you acquaint yourself with Spain’s labour laws which may differ significantly from that of your home country. There are niche lawyers known as “abogados laboralistas” who specialise in this branch of law. Laboralistas are the lawyers you must seek in cases of unfair dismissal to take your case to court. You are bound to win.

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.012 © Raymundo Larraín Nesbitt. All rights reserved.

As explained in previous articles on Bank Repossessions in Spain, the responsibility of a borrower on defaulting a loan is personal and unlimited in Spain. Frequently, post-repossession, a borrower will still owe capital which increases exponentially over time due to the compound interests and associated repossession expenses creating a debt spiral which acts as a black hole.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8^th of March 2012

Introduction

In the above article from 2007 I already offered as an alternative solution to borrowers to pursue what is known as a “dación en pago” (handing back ther keys to a lender); a solution of last resort. A dación en pago allows a borrower to legally hand back the keys and in exchange a lender fully discharges the borrower of the debt. This is formalised before a Notary public by means of a deed whereby property ownership is relinquished in favour of a lender. In this manner, speaking of foreigners, the lender would be unable to pursue you abroad for the outstanding – mounting –debt considering it settled for good. It is akin to placing a legal firewall to avoid jeopardising your home country’s assets.

The dación en pago was an option lenders welcomed back in the early days of the recession – particularly in the case of foreign borrowers – as they normally held no other assets in Spain and pursuing them abroad for the shortfall – although legally possible – was normally a fairly complex and expensive procedure not making it worth their while from a financial point of view. Being pragmatic, it made more sense to accept a dación rather than follow a protracted and winding repossession. Back then lenders demanded properties be in positive equity to accept a dación en pago. As the recession unfolded, giving way to the most important one the world has known since the Great Depression, lenders grew more and more reluctant to accept a dación en pago proposal (as they themselves struggled to secure finance from abroad) to the point this window of opportunity was eventually shut off, even if the property was in positive equity territory.

This procedure is loosely based on art 1.175 of the Spanish Civil Code and article 140 of Spain’s Mortgage Act. There is no article in our legal system which actually enshrines the dación en pago procedure. This is the reason why I always wrote that a dación en pago was not a borrowers’ divine right, despite claims to the opposite by self-appointed qualified online experts. Rather, it was a voluntary agreement reached with a lender (because they actually stand to lose a great deal on accepting it). That is why they insisted as a pre-requisite the property be in positive equity for them to even consider studying a dación to offset their losses on taking over the property. It was really up to them to either accept or decline the proposal; it was pointless to challenge their refusal throwing good money after bad, even more so if the property was in negative equity.

Until now.

The Government’s concern has grown deeper as the recession in Spain has gathered pace since 2007 with thousands of families in its wake being repossessed every year and still owing significant amounts of capital they will never be able to repay back to their lenders. Lenders know it all too well and sell off these bad debts in tranches for a fraction of their book value to specialised institutional investors and debt-recovering companies. This disturbing trend has continued unabated in 2012. This has created serious social problems as hundreds of thousands of families are effectively evicted and locked out of the financial system with no hope of obtaining a loan as they are viewed as financial pariahs by our so-called modern society.

The Spanish Government has finally reacted in 2012, some five years after the recession began, publishing a non-binding Code of Practice for lenders to adopt the dación en pago procedure following a major social outcry which was echoed in Congress. This episode has witnessed some embarrassing moments of its own, such as the intervention of Ecuador’s president advocating the dación in favour of its struggling countrymen facing looming repossessions in Spain. However, if lenders should choose to formally adopt the Government’s proposal, it becomes compulsory for them, being forced to accept a dación.

The catch, as always, is that a borrower must fulfil stringent criteria to qualify for it which – in practice – leaves out most foreigners. Speaking clearly this means the Code of Practice introduced by the Government will benefit foremost nationals and lock out most struggling foreign property owners as one of the requirements is that the Spanish property must be your only asset; excluding those borrowers who hold property abroad i.e. in their home country.

Advantages

They are blatant. You can now walk away from the threat of a looming repossession procedure safe in the knowledge that your lender has signed a legally binding deed before a Notary in which they forfeit taking legal action against you for the outstanding debt. The peace of mind this has given my clients is simply priceless and cannot be understated enough.

The generalised adoption of a dación en pago procedure will make banks think twice before they lend money. This will enable that hundreds of thousands of families are once again recovered for society at large allowing them to move on with their lives starting anew rather than sentencing them for the remainder of their lives as financial zombies. Everyone deserves a second chance in life.

Potential Disadvantages

As a result lenders will now strive to protect themselves as these newly-introduced measures effectively break a long-standing status quo lasting for over a century.

I can foresee lenders adopting the following measures to counter their real estate losses as a consequence of generalising a dación en pago procedure:

– Credit restriction. Lenders will foreseeably tighten their criteria when it comes to lending for property-related purchases. Only those families which are deemed financially capable of repaying their loan will have access to credit. Up until the recession began, mortgage loans were handed out recklessly to anyone with a pulse. This has backfired spectacularly over time on financial entities, particularly on savings banks which had lenient standards to put it mildly, as it was entirely predictable. Seeking short-term gains, losing sight of the long-term business viability, brings these debt-laden problems.
– Credit will become more expensive. Meaning the rate charged to certain borrowers will be increased as a result to offset – repayment – risks.
– Additional guarantees/collateral requested i.e. family assets, personal guarantors (i.e. family members that guarantee a mortgage loan with their own properties etc. As a side note, I always advice everyone to never accept being appointed as a personal guarantor, even if it is for a family member or a friend, as you stand to lose your own property if they default on their mortgage loan. It is very foolish.

Bank shareholders and stakeholders have good reasons to be weary of these measures introduced by the Government as they will potentially incur in heavy losses. Being cynical I guess it will eventually be the taxpayer – you and me – who will pick up the tab after all.

Code of Good Practice

Was approved on the 9th of March and is compulsory for all those lenders who voluntarily adhere to it. It introduces three very interesting measures.

1. Debt restructuring. Before a dacion is even contemplated – providing you fulfil the below requirements set out in point three – a lender will first strive to restructure the debt. Amongst the measures introduced are:

– 4 years of interest-only (“carencia”)
– Extending mortgage repayments up to 40 years
– Reducing the applicable interest rate to Euribor plus 0.25

2. Debt reduction. Failing the above, the lender will then be forced to bite the bullet and write-off part of the debt burden to make repayment terms more manageable for the borrower. At this point the lender will be incurring in losses for the first time. The threshold is that repayments must be below 60pc of the family’s monthly income.

3. Dación en pago. Only if the two previous points fail, will a lender then consider following a dación en pago as the last resort. Lenders will incur in heavy losses on accepting it, which is why this option is only considered if there is no other one available to them. More details on this can be found in my article Dación en Pago Explained, from 2009.

To benefit from a dación en pago a borrower must comply with the following five points:

– Failed the above two points: debt restructuring and debt reduction plans. Post-restructuring, repayments that still exceed 60pc of the family’s monthly income will qualify for a dación.
– The value of the property, following a sliding scale, must be below €200,000 in large cities, such as Madrid, and below €120,000 for towns with less than 100,000 citizens.
– The property must the borrower’s only home (in Spain or elsewhere).
– All family members must be jobless (in Spain over 1,5mn families comply with this).
– No one acting as guarantor.

At the time of writing this article, 95pc of Spanish lenders have adhered to this Code of Practice. A list of all those lenders which have voluntarily accepted it will be published before the 10th of April.

In Conclusion

The generalisation and adoption of the dación en pago procedure, now finally a borrowers’ right, is a welcome respite for struggling borrowers. However, as I’ve pointed out, these new measures will benefit Spanish nationals foremost for a number of reasons.

More could be done to generalise it so that even more borrowers were eligible making it truly an option open to everyone that needs it. A compromise had to be reached at some point with lenders and the above five requirements were decided as the cut-off point. In any case, it is a positive first step in the right direction and thousands of families will now stand a second chance in life as a result of it.

If you are unsure on whether you may qualify for a dación en pago, seek legal advice.

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in inheritance, conveyancing, taxation and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

Legal services Larraín Nesbitt Lawyers can offer you

• Dación en Pago

Related articles

• Lifetime Loans or Reverse Mortgages in Spain Explained – 21st February 2011
• Advice to Struggling Mortgage Borrowers in Spain – 8th March 2011
• Spanish Mortgage Loans: Beware of Abusive Clauses – 8th January 2012
• Spanish Mortgage Loans: An Overview – 21st February 2012
• Mortgage Collar Clauses Revisited (‘Cláusulas Suelo’) – 8th December 2013
• Bank Repossessions in Spain – 21st February 2014
• Bad Debtor’s List (‘Fichero de Morosos’) – 8th April 2014
• Spanish Creditors Pursuing Debts Abroad – 8th May 2014
• Dación en Pago Explained or How to Hand Back the Keys – 8th December 2014

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.012 © Raymundo Larraín Nesbitt. All rights reserved.

Mortgages are a useful legal tool that allows most would-be buyers the necessary financial means to acquire an overseas property. Spanish mortgage loans are similar to their UK counterparts with some nuances borrowers ought to be keenly aware of.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
21^st of February 2012

Introduction

The purpose of this article is to continue the trend started in last month’s article (Spanish Mortgage Loans: Beware of Abusive Clauses) and shed some light on this often overlooked and obscure matter that may in time have such a large impact on our lives.

In this article I will focus specifically on real estate related mortgages.

Definition

A mortgage loan is an accessory contract, as the main contract is always the loan itself, which places a royal right against a real estate asset (whether movable or immovable) and is agreed upon in a public deed of registry. A notary public (notario) will bear witness and sign both the purchase deed and the mortgage deed along with borrower and lender. If a translator is necessary, they will also sign alongside. The deeds then have to be lodged before the Land Registry. The registrar (registrador) undertakes a second legal check before the mortgage is lodged. Both the notary and registrar are top-ranking civil servants who have attained a Law degree and have studied a very hard exam that can take several years to be admitted in their positions.

From the above, it can be surmised that a private loan that is not witnessed by a notary nor lodged at the land registry is not valid. In fact, any other mortgage loan that is drawn up afterwards and complies with the above legal formalities will always prevail against any former ones that lacked said formal requirements.

Essential Elements

In Spain, prior to signing a mortgage deed, lenders are required to clearly lay out the essential elements of the offered mortgage in a document known as a binding offer.

Capital: this is the amount you are taking on.
Duration: it is the period within which you must settle the loan i.e. 20 years
Rate of interest: is the price of the money you are borrowing. The higher the interest, the more you pay on the long run.

Types of Mortgages

There are many different types of mortgages. I will solely focus on this article on property- related mortgages and its main variations.

Fixed interest: As its name implies, the interest rate is locked throughout the duration of the loan. This has its advantages, such as giving forward visibility and not falling victim to fluctuating interest rates. It allows the borrower to plan ahead its monthly financial commitments eliminating any uncertainty as to what is owed to a lender each month. The main drawback is that the borrower will have to normally pay a premium throughout the life of the mortgage loan to offset the lack of risk and compensate for when interest rates are raised. This premium may be a couple of points above the current rate of interest.

Variable interest: The loan is normally referred or linked to an index which fluctuates over time. In Spain over 95 pc of mortgages belong to this type. Most of these mortgages are referred to the Euribor rate of interest which stands for Euro Interbank Offered Rate. It is the rate at which banks within the eurozone lend to each other (when they actually do trust to actually lend to one another…). The main advantage is that when interest rates are low, such as now, monthly repayments are also low saving borrowers considerable money on the long run. The disadvantage is that should rates rise, your repayments will follow suit thus increasing your monthly loan burden.

Spread (diferencial): In variable interest loans, points are added to the referred index. If you are non-resident in Spain this spread will be considerably higher to offset the risk of default as opposed to resident borrowers. The latter are considered “safer” as they already have assets within the country that can quickly be seized if necessary.

Interest-only (carencia): Some lenders may offer interest-only mortgages, particularly to young couples, as a teaser to entice them. In Spain these periods normally will last only a couple of years at most. It is a good idea for first-time buyers to get hold on the property ladder at a time when their source of income is precarious or low. Within the last years it has additionally been offered to struggling mortgage borrowers with the aim of easening up the financial burden of their repayments. In some cases to qualify you may need to demonstrate you are currently unemployed (sic).

Legal liability of a borrower in the event of default

This is a fairly important point that differs widely from its UK counterpart. If there is one milestone I want to highlight in this article, hands down it is this one.

In Spain, a borrower has a personal and unlimited liability which extends to all his current and future assets. The legal implications of this are very serious. Unlike in other countries, where in the event of the borrower defaulting the liability is limited to the value of the guaranteed real estate itself, in Spain the liability can have far-reaching consequences. A Spanish lender pursues the borrower himself, not the property, as the responsibility is personal. Additionally this implies that lenders pursue you abroad – and may seize – your home country’s assets for the shortfall incurred on defaulting on your Spanish mortgage loan. More on this in my article Spanish Creditors Pursuing Debts Abroad.

Because of how the legal system of repossessions is designed, biased towards lenders, a borrower can find himself owing a great deal of money to a bank after the underlying collateral, the real estate, has been repossessed. Unlike the UK, the deadline to repay this mounting debt does not expire, at least in practice. Compound default interest rates are added as well as the associated repossession expenses (i.e. lenders’ lawyer’s fees).

Formally a borrower’s responsibility on defaulting a mortgage loan is twenty years. However, in practice lenders may at any point in time interrupt this by means of a formal notification to the defaulter thus renewing the twenty-year deadline. Rinse and repeat and you may find yourself in the receiving end of a mounting debt spiral which follows you to your deathbed. Lenders outsource this debt-chasing to law firms who will make sure the debt remains always alive by contacting the borrower regularly, ensuring the twenty-year limit is always in order. The logic behind this, is that the defaulting borrower may come into wealth over time, i.e. inheritance, and may now be in a situation to settle his debt. In my humble opinion this system should be amended and borrowers should be given a chance to rebuild their financial lifes without turning them into financial pariahs.

Additionally, lenders will inform credit-rating companies, such as Experian, of your credit worthiness which may have a large impact in your home country. You can read further on the practical consequences in my article Bad Debtor’s List (‘Fichero de Morosos') The conclusion one can draw is that defaulting on a Spanish mortgage loan is a very serious matter that ought to be pondered very carefully and in my opinion ought to be avoided at all costs.

Fortunately in Spain debts are cleared on a debtor passing away (and naturally no one is sent to prison in Spain for bad debts). The exception to this rule is that debts can be inherited on accepting a troubled Spanish estate. At times it may be wiser to waive off the right to accept an inheritance if it implies the passive outstripping the rights and assets.

Dación en Pago

For all those who’ve slipped into mortgage arrears in Spain or are likely to and are thinking of handing back the keys as a solution, there’s a formal legal procedure to do it known as dacion en pago. For a property owner, a dacion en pago means basically handing back the keys to their lender (relinquishing property) and in exchange being discharged of the remaining mortgage debt. You can read an in-depth article on how it works in practice on reading Dación en Pago Explained or How to hand Back the Keys.

Unlike other countries, the dación en pago is not a legal figure that formally exists within our legal system. The procedure is loosely based on art 1.175 of the Spanish Civil Code and article 140 of Spain’s Mortgage Act . For the lender to accept it two conditions are required:

1. The property must not be in negative equity (no-negative equity rule).
2. The lender must not have started a repossession procedure against the borrower.

Even if you have slipped into arrears by some months, lenders will still accept a dacion providing you comply with the above two requirements.

When I first wrote an article on the matter, on the 21st November 2008, lenders were more open to the idea of a dacion. However, as the financial crisis has intensified and persisted over time, lenders have grown increasingly reluctant to the idea of accepting a dacion en pago. Only borrowers whose properties are significantly in positive equity territory are allowed to follow this procedure. Over the years they have raised the yardstick to the point it has become unattainable for most defaulting borrowers. There is now a social movement in Spain, which is gathering pace, to have the dacion en pago included as a figure in our legal system.

What many fail to see, is that a dacion implies huge expenses for a lender on accepting it not to mention the running expenses of keeping a property (i.e. Community fees and property taxes). To this you must add the huge provisions they need to set aside to cover the risk. The last thing Spanish banks need now is yet another repossessed property or dacion which act as financial millstones around their necks at a time where they are struggling to secure finance abroad. Hence their growing reluctance to accept a dacion, even if that means resorting to a repossession procedure.

For more advice on how to cope with mortgage repayments, please read my article Advice to Struggling Mortgage Borrowers in Spain.

Bank repossessions in Spain

This subject and its associated legal procedure is covered in detail by my article Bank Repossessions in Spain.

Lifetime loans or reverse mortgages in Spain

This subject is covered in my article Lifetime loans in Spain Explained, published in SPI on the 21st February 2011.

In Conclusion

House ownership in Spain accounts for over 80pc of property. Owning one’s own property is deeply embedded in the Spanish psyche. Most buyers rely on a mortgage to finance their dream property. Make sure you fully understand the mortgage terms prior to signing a mortgage deed. Do not be afraid to ask any queries on the matter no matter how stupid they may seem to you.

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in inheritance, conveyancing, taxation and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

Legal services Larraín Nesbitt Lawyers can offer you

• Conveyancing – Buying
• Conveyancing – Selling
• Mortgage Service

Related articles

• Lifetime Loans or Reverse Mortgages in Spain Explained – 21st February 2011
• Advice to Struggling Mortgage Borrowers in Spain – 8th March 2011
• Spanish Mortgage Loans: Beware of Abusive Clauses – 8th January 2012
• Spanish Mortgage Loans: An Overview – 21st February 2012
• Mortgage Collar Clauses Revisited (‘Cláusulas Suelo’) – 8th December 2013
• Bank Repossessions in Spain – 21st February 2014
• Bad Debtor’s List (‘Fichero de Morosos’) – 8th April 2014
• Spanish Creditors Pursuing Debts Abroad – 8th May 2014
• Dación en Pago Explained or How to Hand Back the Keys – 8th December 2014

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. Voluntas omnia vincit.

2.012 © Raymundo Larraín Nesbitt. All rights reserved.