Blog / News

Reminder: Deadline to Join Aifos’ Creditors List Ends on September 30

Raymundo Larraín Nesbitt, September, 24. 2009

We would like to remind all of those buying off-plan from Aifos that the deadline to submit your request to join Aifos’ creditors list ends on September 30. All of those who have not done so already please contact your solicitor as soon as possible.

You will have to forward your solicitor the following:

Original Private Purchase Contract signed with Aifos.
Original bank statements as proof of the different stage payments paid to Aifos.

Those who fail to submit the paperwork on time will be left out of the creditors list and will lose every chance of recovering anything from their deposits.

If you don’t have a solicitor who can represent you, please contact us urgently.

Please note the information provided in this blog post 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.

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Spain’s Senate Petitions Government to Suppress “Floor Clauses”

Raymundo Larraín Nesbitt, September, 23. 2009

For those who are wondering what on earth is meant by a “Floor Clause” (Cláusula Suelo), we had already reviewed them in detail in our article 10 Common Abusive Clauses in Spanish Mortgage Loans.

A “Collar” clause is when the minimum interest rate to be repaid to your lender in a mortgage loan is capped i.e. 4,5%. So even if the Euribor rate heads below, you still have to pay the said minimum interest rate. These clauses are the very reason on why many borrowers are not benefitting from the historically low Euribor rate to which most Spanish mortgages are referred to plus a spread (diferencial). We had already anticipated last year in our post, Steep Drop in Euribor Translates into Cheaper Mortgages, that lower mortgage repayments were to be expected in 2009. Many borrowers which were gleefully expecting to lower their monthly mortgage repayments in 2009 have come to know and dread this obscure clause which was worded in their Mortgage Deeds unbeknownst to them.

We had criticised these clauses as being basically abusive to borrowers because they were one-sided. The public outcry has been echoed at last at the Senate this morning.

This initiative was fostered by Senator Mr Francisco Javier Vázquez who belongs to Spain’s Conservative party. The Senate has pleaded that these abusive clauses ought to be removed in compliance with Spain’s new law on Consumers’ Rights, Law 1/2007, which was enacted by the current Socialist Government.

It is estimated that this initiative, if upheld by Spain’s Socialist Government, would benefit an estimated two out three borrowers translating into cheapermortgage repayments.

Source: El Mundo daily newspaper.

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

Larraín Nesbitt Lawyers is a law firm specialized in taxation, conveyancing, 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.

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Developer Aifos Files for Voluntary Receivership

Raymundo Larraín Nesbitt, July, 30. 2009

Rumours were confirmed last Wednesday 22nd of July when Aifos’ petition to file for receivership was formally accepted by Malaga’s Mercantile court number one. On the following day Aifos issued a press release by which it informed they had filed for voluntary receivership.

As we had previously pointed out in prior communications, filing for administration does not equate to bankruptcy as has mistakenly been reported at large e.g. In Spain’s highest profile administration procedure to date, involving well-known developer Martinsa-Fadesa, this company will restructure its 7 billion euro debt and will continue trading normally within the next years.

What developer Aifos has sought is for creditor protection allowing it to buy time to restructure its financial commitments. However, the mercantile judge ruling on the matter may ultimately decide at a later stage that Aifos should file for bankruptcy if it is deemed not to be able to continue trading. This will be decided upon in the ensuing procedure.

As from the time the official announcement is published in Spain’s Official Law Gazette (B.O.E.), creditors will have a deadline of one month to join Aifos’ Creditor's list. (EDIT: Today 31st of July it has been officially published)

Off plan purchasers may fall in any one of these three categories:

Purchasers that signed a Private Purchase Contract and have not had their off plan dwelling delivered.
Purchasers who had already withdrawn from their Private Purchase Contracts and had filed a lawsuit with no final ruling issued yet.
Purchasers who had litigated already and had a final ruling on their case but had not been refunded yet.

As a general rule everyone who purchased a non-delivered property through developer Aifos, whether having litigated or not, should retain a lawyer (and court agent) to join the Creditors’ list and/or litigate. The difference between cases is on their rights (i.e. those with final rulings will be labelled as “ordinary” creditors which lands them higher above on the Creditors’ ladder). Notwithstanding the above, all three cases will be considered as non-secured creditors.

Purchasers will have to liaise with their existing legal representative or else appoint a solicitor to either join the Creditors’ list and/or litigate. Once the receivership has been accepted trials will now be heard only at Malaga’s Mercantile court number one unlike before in which it was actually Civil courts that passed judgement on cases involving Aifos.

Appointed lawyers will seek to best defend their client’s interests in the ensuing procedure taking the following actions amongst others:

Claiming from the judicial administrators the creditors’ position of the clients submitting all the necessary documents on time and in the due manner. To challenge adopted resolutions on the matter if proven detrimental to the inclusion in the Creditors’ List.
Continued monitoring of the receivership procedure ensuring client’s rights are upheld.
To negotiate with the judicially-appointed administrators reaching agreements as necessary.
To keep the client informed on the ongoing procedure.
Assisting to Creditors’ meetings to defend the client’s interests.
To claim or challenge judicially agreements taken by Malaga’s Mercantile Court.

We will be sending this week to all our Aifos’ clients a detailed newsletter informing them of the legal situation and the available options available to them. This newsletter will also be available to non-clients upon request.

If you have purchased a non-delivered property through Aifos and wish to receive further information on this matter, please contact us free of compromise. One of our lawyers will contact you to explain clearly your legal options.

E-mail: Contact Form
Phone: +34
Summer opening hours: Monday to Friday, from 9:00 till 15:00 hours

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New Express Eviction Law: Much Ado About Nothing

Raymundo Larraín Nesbitt, July, 13. 2009

Within the next months we are going to be bombarded with articles spinning the Government’s eagerly anticipated new Express Eviction Law which has yet to be pre-approved by the Senate before it is returned to the Congress of Deputies for its final enactment and publication in Spain’s Official Law Gazette.

This new law aims primarily to tackle cases of non-paying tenants which overstay in let properties, to the astonishment and despair of landlords.

But will it really help out? In short, no.

The proposed measures implemented by this law can be easily challenged or overcome by tenants. Besides the new measures will not shorten the eviction procedure significantly as sought as it hinges on the courts not being clogged, as they always happen to be. The shortcomings of the proposed measures are self evident.

The core of this proposal is the much vaunted 2 weeks waiting time, dubbed express eviction, as from the time there is a ruling evicting the tenant. But there’s a catch; the trick is that the said ruling can easily take 6 months on average dependent on the courts’ agility, so the tally would really be 6 months plus the 2 weeks. So yes, there is some reduction in the timescales involved to evict non-paying tenants, albeit not groundbreaking enough to open a champagne bottle as we are being led to believe. This half-baked attempt to redress matters will at best save only a couple of months. Landlords will still have to wait months to recover the possession of their let properties.

This is a classic example of passing new laws to satisfy the broad public (read electorate) at large which at the end of the day may only complicates matters further without really tackling pressing issues and even leaving the door ajar to potentially adding new problems. At best we can label it as a half-hearted attempt to address the situation.

At a time when many ex-pat landlords are already struggling with their mortgage loans, as they relied on the let’s income to offset it against the mortgage repayments, the last thing they needed was the aggravation of withstanding non-paying tenants. This situation has lead many landlords to default on their mortgage loans which in turn have lead to a soar in repossession procedures.

A golden opportunity has been missed –again- by the legislator to address Spanish Tenancy laws that are heavily biased, for historical reasons, in favour of tenants. These laws need to be urgently and decisively adapted to modern social reality. When this is done, here’s wishful thinking, letting will become a serious alternative to purchasing properties allowing the Spanish rental market to pick up from the ground as in the rest of Europe.

In the meantime we will regrettably have to continue waiting until a law is passed that will boldly challenge this unfair situation once and for all allowing for express evictions instead of politically ill-conceived piecemeal attempts aimed to satisfy everyone.

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

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Spanish Mortgages: No Tax on Term Extension or Switching to Interest-only

Raymundo Larraín Nesbitt, June, 26. 2009

Spain’s Tax office has replied within the last month two binding legal queries which shed some light onto the taxation of the amendment of mortgage terms.

On the first reply of 25th of May, the Dirección General de Tributos (DGT) clarified that switching to interest-only will no longer attract Stamp Duty. On the second reply of 10th of June, the DGT has stated that changing the mortgage’s reassessment date will no longer pay Stamp Duty either. It would be regarded as exempt following art 9 of Law 2/94. E.g. a borrower changes the mortgage resetting from once a year to a quarterly basis.

Regardless if the borrower chooses one or both options they will not attract tax. Also, a lender cannot lawfully charge more than 0,1% to extend mortgage repayments.

This is welcome news indeed for struggling mortgage borrowers that will now have more options available to them without being taxed on choosing them. Reducing citizen’s tax burden is always the right path on the road to financial recovery.

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Paying the Rent Late Twice will be Cause of Eviction

Raymundo Larraín Nesbitt, May, 4. 2009

A mere delay in paying the let for a second time, by a non-paying tenant who has been previously sued by the landlord, will be a just cause for an eviction procedure. This new scenario has been made possible thanks to a recent rulling by the Spanish Supreme Court of Justice.

As explained in my article on Tenant Eviction in Spain, one of the strategies a non-paying tenant could follow to stall the procedure after the landlord had filed a law suit against him requesting a formal eviction, was by paying late (“enervación”). This stalled the procedure and forced the landlord to continue with the tenancy agreement. Albeit the tenant could employ this tactic only once.

The new change will mean that if the tenant should pay belatedly a second time (i.e. for two consecutive months), after the landlord has previously initiated an eviction procedure for the same reason, it will no longer mean the case can be dismissed or thrown out of court. It will mean the tenant breached the contract. Period. Spain’s Supreme Court has now unified the different approaches and regards that the tenant has breached the Tenancy agreement, provided the contract stipulates a deadline in which the payments have to be met every month.

This puts an end to non-paying tenants which continuously abused the legal system on deciding when they felt fit to pay their landlords in lieu of when they were meant to. This change has been brought about by one of the latest ruling of Spain’s Supreme Court. This is the second ruling on the same issue with a similar outcome which will now set jurisprudence in our legal system. The prior ruling is also from this year.

Both of these rulings aim to address the increasing problem landlords are faced with in Spain on letting their properties to professional defaulting tenants. Additionally, the dire financial circumstances have forced what used to be trustworthy tenants into defaulting their lets and abusing our system too. These rulings will now add new legal tools to defend landlords, as in Spain, the laws have been traditionally biased towards tenants for historical reasons which need to be adapted to social reality without delay.

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

Related Legal Service

Tenant Eviction Service

Related articles

Tenant Eviction in Spain – 8th June 2014

Urban Rental Law in Spain – Spain´s Tenancy Act (Ley de Arrendamientos Urbanos, LAU) – 8th May 2016

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Careful with Scammers Posing as Spanish Lawyers

Raymundo Larraín Nesbitt, March, 18. 2009

Within the last year we’ve seen an alarming increase in the number of queries regarding the legitimacy of certain Spanish law firms and lawyers. These companies are in fact non-existent and act only as shelter companies devised to fleece foreigners offering them dubious legal services often related to some murky financial interest, which is in the end nothing but some sort of advance fee fraud. Foreigners should be well advised that these scammers pass themselves off as legitimate Spanish law firms and lawyers. They prey exclusively on foreigners and are in fact not even Spanish themselves. Their command of English is very good.

Spanish lawyers belong to one of the numerous Bar Associations that sprawl throughout Spain. There are a total of 83. Every lawyer member of a BA will have a registered number. It is very easy to check in less than a minute if a Spanish lawyer is legitimate, providing he is in fact registered of course.

These fraudsters will always contact you to offer legal assistance in some service of which you by chance are the sole lucky beneficiary. The potential reward to reap is huge (hundreds of thousands if not millions) in exchange of a reasonable legal fee which in comparison doesn’t seem like much. The preffered contact method is email (which they may follow up by ordinary post), and they will offer you either of the following legal “services”:

Letting you know that after a long and winding investigation it has surfaced that you are the sole live beneficiary of a considerable Spanish inheritance from some distant relative you had in Spain (unbeknown to you) that has sadly passed away.
Offering you to join group actions to recover deposits from bogus resale time share companies in ongoing court proceedings (Reclaim Certificates).
Notifying you that you have won the Spanish Lottery (despite never having played it) or that you have been selected in a random draw and are now the lucky beneficiary of a special promotion from the generous Spanish Lotto Administration.
Contacting you regarding using your bank account, in exchange of a sizeable commission, for some million dollar bank transfer with origin in some dodgy place in Africa. This is known as the Nigerian Letters.
Offer to assist you in the verification and payment of unclaimed funds located in Spain of which you happen to be the only beneficiary.

An example of enquiries about such bogus firms are the following:

Martinez e Beneficio
Alberto Ganez Y Socio
Perez, Gonzalez and Associates & Perez, Carrera and Associates

Our recommendation, as always, is to never ever pay moneys upfront if you have the slightest suspicion about the legitimicay of the people you are dealing with.

We have compiled a list of Spanish bogus law firms which is continously updated.

Other interesting links

Protecting Yourself from Pyramid or “Ponzi” Schemes – 21st February 2009
Fraudulent sell of shares from Spain – Boiler rooms UK FSA’s link.
European Mediation Limited

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Bogus Spanish Law Firms

Raymundo Larraín Nesbitt, March, 13. 2009

Public Warning.-Scammers passing themselves off as Spanish lawyers and law firms

Foreigners should be well-advised that there are many scammers trying to pass themselves off as legitimate Spanish law firms and lawyers. They prey exclusively on foreigners and are in fact not Spanish themselves. They are mostly Nigerian (lately there's a surge of British and Irish citizens involved too). It is calculated there are over 300,000 Nigerians worldwide scamming people. The golden rule is they never scam nationals of the country in which they live in. So Nigerians located in Spain (Madrid, Málaga and Granada) scam everyone except Spanish themselves. Nigerians are among the best educated elite in Africa and their command of English is often superb.

Spanish lawyers belong to one of the Bar Associations throughout Spain. There are a total of 83. Every colleged lawyer has a registered number. It is very easy to check in less than a minute if a Spanish lawyer is legitimate i.e. registered to practice Law in Spain (just follow this link).

Besides, registered lawyers have Professional Indemnity Insurance.

These fraudsters will contact you by a cold-call, e-mail or letter offering you either of the following 'services':

1.- As the only beneficiary of a Spanish inheritance from some distant (and unknown) relative in Spain that has passed away.

2.- Offering to recover resale time share deposits in ongoing court proceedings (Reclaim Certificates). They will offer you "group actions" against timeshare companies through cold-calls. Ask them how they obtained your contact details and the details of your timeshare investment. Remember that legitimate Spanish law firms never cold-call potential clients.

3.- Notifying you that you have won the Spanish Lottery (despite never having played it) as a promotion from the generous Lotto Administration.

4.- Contacting you regarding using your bank account, in exchange of a commission, for some million dollar bank transfer with origin in some dodgy place in Africa. This is known as the Nigerian Letters.

5.- Offer to assist in verification and payment of unclaimed funds of which you are the beneficiary.

6.- Acting as intermediaries in car sales at very reduced prices. They will request you deposit the funds in their lawyer's account.

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Protecting Yourself from Pyramid or “Ponzi” Schemes

Raymundo Larraín Nesbitt, February, 21. 2009

Photo credit: Daily Mail

As history’s finest investor, Mr Warren Buffet, once said, “You never know who’s swimming naked until the tide rolls out.” Well the tide has rolled out and investors are panicking withdrawing and liquidating their portfolios in a frantic rush against time to raise funds. It is in such dire times of massive redemption requests when Ponzi schemes are unravelled in all crudity and it becomes all too apparent who was in fact swimming naked. Within the last months we’ve witnessed Madoff’s and this very week Stanford’s Ponzi schemes imploding, sucking in their wake thousands of millions of euros. Are we immune in Spain to such financial ploys? Not so.

What is a Ponzi Scheme?

This scam involves promising high yields (above the market average) to dazzle gullible investors. These yields are actually paid to existing investors from the funds of newcomers. So a Ponzi scheme needs to continuously lure in a base of new investors to self-perpetuate itself. They normally spread themselves like viruses by word-of-mouth but do not frown advertising themselves in local newspapers. The first recorded case was in the USA in the last quarter of the XIX century although its name is taken from an Italian-American immigrant, Charles Ponzi, who fleeced thousands of investors in Boston in the 1920’s out of 10 million dollars.

How Long do they Last?

Not long, normally only months or a couple of years at most, a noticeable exception would be Madoff’s which lasted remarkably over three decades escaping all detection. As these pyramids need to continuously find a new influx of investors to meet the promised repayments of existing ones they eventually self-implode collapsing like a house of cards as they are unable to keep the rapidly growing pace. Noticeable cases in Spain (aimed exclusively at Spaniards) have been Forum Filatélico and AFINSA both dealing with postage stamps.

I’m too Smart to be Caught in One

No-one is too smart. Judging by Madoff’s and now Stanford’s cases in which the World’s supposedly finest and most sophisticated affluent investors have been caught-up one should not underestimate one’s own greed. These scammers are top salesman and bank on people’s greed to make a living. In fact these Ponzi schemes are not that rare at all in Spain.

If you pick up any weekly English newspaper sold in Spain you will read advertisements that promise you suspiciously two digit yields from exotic and often obscure foreign opportunities. Naturally, these financial advisors are unregulated by Spain’s CNMV (the equivalent of the UK’s FSA) and prey exclusively on foreigners, preferably on their own countrymen to create rapport. The reason that Spaniards are not targeted is that they would quickly raise the alarm of the local authorities so they are careful to only target foreigners, the elder the better, so as to go undetected for as long as possible. Then regularly wind up these boiler rooms and move on to their next scam. As it’s often said, if it sounds too good to be true it often is.

What do I do if I Suspect of One?

You can contact Spain’s CNMV (Spain's equivalent to the United Kingdom's Financial Conduct Authority) to check the financial advisors that have contacted you are indeed regulated to offer you financial products such as company shares. The CNMV regularly updates in its website such fraudulent companies. If you suspect the yield is too high you may want to take a second professional opinion from an unbiased source such as a chartered financial advisor or a qualified lawyer.

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

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Steep Drop in Euribor Translates into Cheaper Mortgages

Raymundo Larraín Nesbitt, December, 31. 2008

The (12 month) Euribor fell today to 3.085%, and will set the average for December at 3.4%.

The Euribor (ER) is the rate of interest at which banks lend to each other. It is the reference which most Spanish Lenders take to set the mortgages’ rate of interest. This rate is reviewable by your bank, depending on your Mortgage Deed, every six months or once a year. The European Central Bank (ECB), which sets European Monetary Policy for all EU members with the exception of the UK, has no direct control over the ER.

Post credit-crunch fear, shortage of liquidity in the markets, widespread bankruptcies and plummeting stock prices unseen since 1929’s infamous Wall Street’s Stock Market Crash has gripped banks with fear in the last quarter of 2008. This fear to lend to each other due to the mutual mistrust on one another’s writedowns has fuelled the ER hiking it to levels which were unprecedented historically.

In line with the US, the European Central Bank has lowered consecutively the interest rate which indirectly affects the ER. The Euribor rate reached an all time high on October 2008 peaking at 5.393%. To this you must add the spread on paying a mortgage which typically for a non-resident will be 1% on top of the Euribor rate. This caused a surge of mortgage defaults in 2008.

The reason being is that the ECB is lagging behind the United States Monetary Policy which has now set its interest rate at almost zero (0.25% to be exact) to hopefully fuel the ailing American economy. So the ECB has quite some catching up to do next year as its interest rate is currently held at 2.50%. Currently the Euribor rate for 12 months is set at 3.085%

In any case the continued policy of the European Central Bank to lower the interest rates over the last months will help to drive down the Euribor rate which is always news most welcomed by everyone, specially borrowers. Spanish banks will revise and adjust the Euribor rate which in turn will lower your monthly mortgage repayments. This normally happens in July.

For example, a typical mortgage of €300,000 revisable next July 2009 could drop by as much as €550 a month if the Euribor rate continues its downward trend and hits the 2% forecasted by financial experts by mid 2009.

So for all those that are struggling to pay their mortgage loan and are considering defaulting you should be aware of this significant drop in 2009. We suggest you find out at your bank when the Euribor rate will be adjusted for your own particular case and how much money you stand to save.

Related articles

Bank Repossessions in Spain – 21st February 2014

Advice to Struggling Mortgage Borrowers – 8th March 2011

Bad Debtor’s List (‘Fichero de Morosos’) – 8th April 2014

Spanish Creditors Pursuing Debts Abroad – 8th May 2014

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