Legal questions and answers
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Legal Questions and Answers

This section features real questions asked on my radio show on Baywatch Radio. If you have any questions relating to property, the legal process or living in the Costa de la Luz please feel free to Contact Me
Lesley McEwan

Q Alison H -  I have been asked by someone interested in buying my house for a Nota Simple what is this and why do they want it.


A The NOTA SIMPLE This is a short informative note obtained from the Property
Register (Registro de la Propiedad) which gives the name of the owner and
details about the property, including the current owners names, the square
meters of the property for both the dwelling and the land, the boundaries, a
classification, whether it is rustic land or urbanized or if it can be
urbanized in the future, if there are any debts against the property for
unpaid taxes, mortgage arrears or fines.

Q James We are thinking of selling our house but my wife
has always wanted to build a garage.  We have had the plans drawn up and
have applied for permission.  She says it will add value to the house but I
am not convinced.  Do you think we should build it or try to sell without
the garage.

A Well James, at the moment the houses which are selling best on the Coast are
the keenly priced ones.  If you spend money adding a garage at the moment it
is unlikely you will get that money back. You would be better to sell the
house WITHOUT the garage but make sure your agent knows that there are plans
and a permission in place as that would be a good selling tool and many
buyers ask about garages.  That way the buyer has the option to have the
garage but you have not shelled out to build it.  Good luck with your sale.

Q Laura My husband and I viewed properties on the Costa de la
Luz and chose a house we really liked.  We were told that in order for the
owners to take it off the market we had to pay a deposit.  We paid the money
and were given a receipt showing the house address etc.  A few days later
the agent called to say the house had already been sold to someone else but
he had another similar house.  We did not want another house so we asked for
our money back and he said we would have to buy another house from him and
he would transfer our deposit over to the new house.

A Well Laura I do not know if this agent is a man in a car with a phone but or
if he has a company but either way he needs to learn something about estate
agency.  You agreed to buy a specific house.  He gave you a receipt with the
house address on it so there is no doubt that the money you paid was in
respect of that particular house.  In Spain it is common for people to
advertise their house with more than one agent and the first step for any
agent when you have a client interested in a property is to check that the
house no sold before you go any further. It is not your fault that he failed to check and he cannot hold on to your
deposit.  It is normal to offer an alternative property but not to say that
you cannot get your money back unless you buy another house from him.  This
is very poor  practice and a reputable agent would not be behaving in this
manner.  So tell him you want your money back.

Q Michael O. We returned to our holiday home at the weekend
to find it has been burgled.  I spoke to a neighbour and they said there was
no point in reporting the break in to the police as we have insurance.  Is
this correct that you do not report a break in if you have insurance”

A Well I am sorry to hear that you have had this problem.  Crime in Spain is
very low compared to UK but it does occasionally happen.  I am afraid that
your neighbour is not correct.  Any crime should be reported to the police
immediately.  Go to your nearest Guardia Civil office (they are the police
officers who wear the green uniforms).  Take someone who speaks Spanish and
ask to make a DENUNCIA. Now very important!!!!.Do not move anything in the
house !!!.. and try not to touch anything you think the burglar may have
touched !!!.. as the police might be able to get finger prints.   If they
broke the door to get in you need to leave it as you found it for the police
to take pictures etc.  Take with you to the police station a list of all the
items missing or damaged including damage to the point of entry like the
door or window.  Down the side of the list you need to give a cost for
replacement or repair.  If you have invoices or receipts for any of the
items take them with you also.   You will be taken in to a room with one or
two police officers.  One will type up your complaint (your denuncia)
including the list of missing items.  You will be given a copy to read and sign and a
copy for your insurance company.  A police officer will then accompany you
to the house to take finger prints and photos of the crime scene.  Normally
once this has been done you are free to clean up.

If you do not live here and a neighbour contacts you to say that something
has happened.  Your neighbour or a representative can make the denuncia on
your behalf.  I have made several on behalf of clients over the years and I
have always found the police to be professional, courteous and helpful so
have no fear of going to them.

You need to report any crime in your area otherwise the police cannot deal
with a problem unless they know it is happening.

Q Fiona D We have seen a house we like but our
solicitor has told us it is a proindiviso and said something about if we buy
it we would not own the land our house was on.  We are a bit confused can
you explain please.

A I am not surprised you are confused, property paperwork here in Spain is a
lot different to the UK.  Lets pretend we are in the 1960´s and a young
couple decide to get married. The family have a piece of land with an old
house and some chickens on it measuring 6,000 square meters.  So they say
lets give them that piece of land, they can do up the house and live there.
A few years later the babies come along and they have four children.  In
time the children grow up and find partners and they get married so the
parents say you can take a piece of the land each and build a house.  It
will be nice to have you near us. So they build another 4 houses on the
land and then finally poor old granddad dies and granny needs someone to
care for her so they all club together and build a little bungalow for
granny on the land so she can be near the family..In the space of 30 or
40 years we have gone from having 1 house on this land to having 6 houses
but as they are all family they never thought about having the land legally
divided because it did not matter as they were all happy living there.  Now
here is where the problem arises.  Poor old granny pops her clogs so they
sell the house to a neighbourthen broken hearted at the passing of
granny both the parents die and that house is sold to someone.  Then two of
the children decide to move away and they sell their houses.  Now we have a
plot of 6.000 square meters with 6 houses on it but now only 2 are
owned by the family and that is one way a prindiviso can be formed.  The
problem is that when you buy a proindiviso property it is like buying shares
in a limited company you only own in this case 16.6% of the land your house
stands on.  Your own 100% of the house but only 16.6% of the land.   It
means that all debts are communal – for instance there may be one rates bill
which has to be split up into 6 and paid by each individual ……..but ………..
the problem arises when one of the householders fails to pay because his part of
the debt then falls to all the people who own jointly that piece of land.
Whatnormally happens is that they form a community to make sure all the communal
costs are paid in an orderly way but the question for you is are you
happy to be part of a community.

Q Raphael G I want to buy a property in Cadiz City but my Spanish
friend said I should buy a new property rather than an old apartment.  I
have been looking on line and I cannot see any new build properties in
Cadiz.  Am I being silly or do they not exist.

A There has been no free land for building in Cadiz City for many years.  I
think what your friend means is that you should buy a completely renovated
property.  There are two ways that properties are renovated in Cadiz City.
The
first is where the 4 exterior walls or just the facade of the building are
kept and everything from the roof to the foundations within is demolished
and rebuilt.  The townhall in Chiclana has recently been refurbished in this
way where they kept the original historical facade but rebuilt the building
within.

The second is for the floors and roof to be retained but everything upgraded
to a modern standard new plaster,  new plumbing, new woodwork,  and new
electrics etc.

The third option is for a developer to buy an old building and do a brush
and make up job on it.  This type of property carries more risks because you
do not know what lies beneath the new paint. So what I think your friend
means is if it looks like it has just been painted over to make it look good, avoid it and go for one of the first two options, the new build within
the original 4 walls of the building or the complete renovation so you know
the important things are new and up to standard..

Q Julie in Tarifa How safe is it to rent out my property.  I am concerned
about damage etc.  Can I get insurance to cover rentals.

A Well how safe it is depends on who you rent to.  You want to go for
couples or family units.  Avoid large groups of young single people.   I
know it is a shame but generally the damage we see is caused by young single
renters in groups because they meet people in bars or at the beach and
invite them back to the house and then there is a party and we all know
where that goes.

Generally in Spain insurance policies cover for renting as it is a very
normal thing to do here.  They do not generally charge you any more for
this.  You will also need some cover for public liability just in case
anyone is injured in your property and again this is standard on a Spanish
insurance policy.  Always meet the clients yourself or get someone you trust
to meet them so they can see that they look reasonable.  If you have any
doubts at all do not rent as you will only lie awake at night worrying about
it.

Q Joyce M I want to rent out my property to help pay the bills.  Friends
have said just furnish it with some old furniture etc but I feel I want to
make it nice.  Do the furnishings make much difference to how much you can
get for a rental.



A Absolutely,  we have a lot of professional people who like to holiday in
this area and they expect at least the same standard as they have at home or
better.  If you furnish your property with old furniture (and I don’t mean
antique) then you will have to seek out a market in keeping with that i.e.
people who are happy with cheap and cheerful and in turn you will have to
charge a cheap and cheerful price.  I am not saying that you have to have
designer furniture but you need to put in clean, newish furniture which
matches and looks good.  You want neutral colours and above all comfortable
beds and a comfortable sofa.

Q Michael, Surrey We are renting out our Spanish property and using a
English short assured lease document which we used for clients who rented
our house in the UK.  If we have a problem with the tenants will we be
covered by this document in Spain.

A Unfortunately no.   No document written in English law can be applied to a
property in Spain.  If you want to have a contract with your clients then
you must have one prepared here according to Spanish law.  If god forbid you
needed to take action the action would be raised through the Spanish courts
so you need a Spanish contract.

Q Adrian says  have been told that I can give my solicitor a document
called a Poder and with that they can open a bank account, sign all the
documents for my house and move money around to pay for my house.  Is it
safe to do this type of document it sounds a bit worrying that someone can
do all these things on my behalf without me being there.

A Poder is basically a power of attorney and if you cannot be here in Spain
personally for the transaction then a Poder is the next best thing.  They
are drawn up for a specific use and often have a termination date.  You may
want to check the terms of the power with your solicitor before you sign.

Q Kathryn V I bought a new house two years ago and have had a letter from
the builder to say that I will soon have to pay something called IBI what is
tit and why do I only have to start paying now.

A Well Kathryn IBI is our version of rates.  It´s correct name is  *Impuesto
sobre Bienes Inmuebles*".  If you bought a new house then there is generally
always a delay before you start to pay IBI while all the documents are
registered and filed etc.  I must say that I have no problem paying my IBI
here n Spain as I pay the same for a whole year that used to pay for 2
months in the UK. So it is one of our Spanish bargains.

Q Tom Smythe Do I need to use a solicitor for buying property in Spain if
I go to a Notary.

A You absolutely must use a solicitor Tom. Although Notaries charge private
individuals and companies fees for their work, they are essentially public
officials or as I once heard it described they are a witness for the
state

They play a completely neutral role and it is the job of your solicitor to
ensure that your rights are protected not the Notary.  The Notary is only
obliged to ensure that both parties understand the terms of the contract,
that the terms of the contract do not contravene any laws, and to ensure
that the appropriate taxes generated by the transaction are paid.

If we can go back to Monty Python.  If I had a dead parrot for sale and you
agree to buy it for 10,000 euros we could go to the Notary and ask for a
contract to be drawn up for the sale of the parrot.

The Notary might think you were mad but it is not their place to comment.  So
long as they are satisfied that you are sane and understand it is a dead
parrot you are buying for 10,000 euros that is the end of their
responsibility.

This week we are tackling the horrible subject of legality, a subject which
is causing many people a lot of upset and problems.

Q Alicia we have just discovered that the
property we bought five years ago is not legal.  We bought from an estate
agent with an office.  The agent has now disappeared.  Why were agents
selling illegal properties.

A Well Alicia there were two reasons that people sold illegal properties.

There were a few dishonest agents selling properties like this but also around
the end of the 90´s and the beginning of the 2,000´s a lot of people moved
over to estate agency

Who had never been estate agents. It was seen as a easy way to make money

These people were not professionals and they knew virtually nothing about
the law and probably did not care.

People think estate agency is a bit like owning a pub, anyone can do it,  but
anyone who has been a publican will tell you that it is a hard and complex
job if you are going to do it correctly and to a high standard.

Now one of the few good things that the economic crisis has done is clean
out our industry and a lot of the people who only came in to the industry to
make a fast buck have moved on.

would strongly advise you to consult a good solicitor as soon as possible
and see if he can help you

Q Bert  what makes a house legal.

A Well I spend a lot of time in the planning and urbanismo office and I asked
them this question strangely enough on Friday of last week and the answer
was that legality has two requirements

The first is that you should have mains water, sewerage and electric and the
second is that you should have a Certificado de Obras (which is basically a
planning permission)  to build a house on the piece of land.   Now in turn
you should have a Primero Ocupacion which is a certificate to say that the
house is finished and suitable for habitacion but without the Certificado de
Obras you cannot get the Primero Ocupacion.   So the two elements that's
the mains supplies and the Certificates  together make a house legal.

Q Simon I bought a piece of land some time ago and I now want to build
a house on it but I have been told that there is a sum you need to do
regarding the size of house you can build.

A That's right Simon .. the councils have decided what size of land you need
in certain areas in order to build a house.  There is a calculation you need
to do which is a ratio of the size of the house to the size of the land.  I
cannot tell you what the ratio is so you need to go to the planning
department and tell them where your land is and ask them what size of house
you can build there.  If you try to build a house on a piece of land which
is less than the council´s minimum then you will not get a Certificado de
Obras so you need to be clear on the size of house permitted before you
start to make any further plans. This has been and still is a problem in
some areas where houses have been built on pieces of land which are not
large enough.

I recommend that you visit your local planning department and speak with
them before you make any plans.  They are very helpful and at least you will
have the advice straight from the horses mouth so to speak.

Q Aaron W I am selling my house and I have been told that
money is held back when I sell. What is that for?

A This only applies to non-residents.  It is to ensure that Capital Gains Tax
is paid even though the seller may no longer have any address in Spain. The
retention is 3% of the amount declared in the escritura (that is the title
deeds of the house)  at the time of sale.

It is deemed to be a down payment of the Capital Gains Tax due. In these
cases it is the responsibility of the buyer, via their lawyer, to lodge the
retention with the tax authorities within 30 days of signing the escritura
(or title deed) in front of the notary. Hacienda

The tax authorities  then have 6 months in which to calculate the actual
Capital Gains Tax  due and return any overpay. Of course the bad news is
that they can also claim any underpay.

Q Kathleen in Tarifa she says is it normal for Plusvalia to be
paid by the seller?

A Plusvalia is a local (municipal) tax charged by the town hall on properties
when they are sold. It is calculated on the rateable value of the property
and the number of years that have passed since the property was last sold.
The
idea is to tax the increase in the value of the land on which the property
stands.

The base for this tax is the valor catastral (an administrative value that
is usually lower than the market value, sometimes considerably so) of the
property. The amount due in tax will depend on how long the seller has owned
the property  -  the longer the period, the higher the amount of tax.

Normally Plusvalia is paid by the seller but it is negotiable and can be
paid by either party or divided between them.  Make sure it is made clear in
the sales agreement who is paying this.

Q William T   He says I am confused.  I bought a new house 4
years ago and have now sold it.   We have seen a house we like but they say
we have to pay the house price plus ITP.  When we bought the first house we
paid IVA.  Has this tax changed its name or is this a second tax we have to
pay.

A When you buy  a newly built property you pay our equivalent of VAT called "
IVA : Impuesto sobre el valor añadido" but When you are purchasing a resale,
you will pay a transfer tax called " I.T.P - impuesto de transmisiones
patrimoniales " So they are in fact two separate taxes William but you only
pay one of them depending on whether the house is now or a resale

Q Karen B  Do I need an NIE number? 


A Well if  you want to buy a house, a car , pay utility bills, apply for a mortgage etc
then you will need one.  Everybody in Spain has a personal identity number
and we show our identity documents for all sorts of things.  Sometimes when
you are buying things of a higher value like sofas, electrical appliances
etc  in you will be asked for your number …. It is very common here and the
Spanish accept that giving your identity is part of everyday life, so I
would advise you to get one.

Q Gavin ..  he says we bought what we thought was a lovely
property in the country just over a year ago where we could live quiety with
our dogs and enjoy our lives.  We have just discovered as a result of
applying for permission to build a swimming pool  that our house is not
legal.  My anger is that the previous owners told us that they had all their
papers and that everything was in order.   Is there anything we can do.  We
are loathe to spend money on solicitors if it is a lost cause.

A Well Gavin it is not a lost cause, for 4 years after you buy a
property you can take an action against the previous owners if they failed
to give you full information about the property before you bought.  From
what you have said it sounds like they not only failed to give you full
information but deliberately mislead you which you cannot do.  So it is
certainly not a lost cause and I would strongly advise you to see a
solicitor.

Q Clarissa We have an atic apartment in Jerez which
we use for holidays but our neighbour has now put up retractable sunblinds
which block our views when they are fully extended.  Can he do that without
permission.

A Well if they are only retractable sunblinds then he does not need any
permission to install them as they are classed as a non permanent item so he
has not broken any law. You will need to check if there is anything in the
constitution for your Community which prevents people having sunblinds but I
would doubt it.  In the short term I would suggest you speak to your
neighbour and say that the blinds are causing a problem for you and see if
he is prepared to maybe not put them out fully or only put them out at
certain times of the day but other than that there is not much you can do.

Q Albert we bought a townhouse which has an underground
garage.  When we bought it was described as parking for the house owners
where each house has a numbered space.  We paid an extra 12,000 euros plus
taxes for our space.  The developer who has not sold all of the houses is
now selling the spaces off to people who do not even live here.  Some people
are using the spaces to leave their old cars which are leaking oil/petrol on
to the floor of the garage and my wife is worried as she says she can smell
petrol in our kitchen and is scared there will be a fire.  We have spoken to
the developer but he just ignored us.  Can he do this?

A Unfortunately, Albert he can sell the spaces to whoever he wants.  The fact
you had to pay extra for the space suggests to me that the garages are on
separate Escrituras to the houses so they can be sold separately.  However,
if there are unsuitable items being stored there like cars leaking oil or
petrol then you should report this to the President of your Community
immediately or if your Community has not yet been formed  you should make a
complaint to the police. They will take up the matter with the developer
storage of hazards will nullify any insurance for the garage area and the
police and fire department will certainly be interested if something
dangerous is going on.

Q Anne W     My sister and I bought a house outside Tarifa a few
years ago.  We have lived here happily until the house next door was sold a
few months ago.  Our neighbour came and told us that we do not own the piece
of land where our driveway to the house lies.  He says it is part of his
land.  He has offered to sell us the piece of land if we want  but as we
have used this entrance since we moved here does he have any right to ask
for money now.

A Well, if he is right and you will have to go to the town council to confirm
that, and he does own the piece of land where your drive lies.  I would keep
him sweet and buy it from him.  The other alternative is that you cannot get
to your house by road so unless you intend to buy a helicopter in the near
future it is going to be difficult.

You are actually quite lucky that he is offering to sell the land as I have
heard of this situation before where the new house owner has simply
bulldozed the exisiting wall and built a new one completely closing off the
house from the road and then you are in a terrible position so I would say
negotiate with him and get that piece of land properly written into your
escrituras.

Q Andy We have bought a country house with well water but the well is on
our neighbours land.  He is Spanish and he keeps locking the gates when he
is not staying at the house which means that if the pump breaks down we
cannot get to it to repair it.  Does he have any legal rights to do this.

A Well he has every right to close his gate and lock it.  If there is nothing
in your title deeds which allows you access to the well for maintenance then
your access is at his discretion.  You really need to look at the options
for a separate supply of water or speak to your neighbour and see what he is
prepared to do to allow you access.

Q Nicholas Jones We signed up to buy an apartment 1 year ago and then
my wife's mother said that she would like to come and live with us so we
spoke to the builder and bought the apartment next door to make one large
apartment.  We have just been to view the new apartment but it is still two
separate apartments and the builder says he will make it in to one after he
gets the Certificate. Is this normal or are we going to have two kitchens
and two front doors for ever?

A Well the two apartments will be shown on the original plans as being
separate.  It is very difficult once a building is being built to change the
plans so What he intends to do. I think is get the certificate of first
occupacion then knock down the wall joining the two apartments and make it
in to one.  If there is a kitchen for instance he will seal off the pipes
inside the walls and cover them and make it in to a bedroom or whatever you
want but to get his certificate it has to look like it does on the plans
when the inspector calls.  Regards the front door it is up to you if you
want to seal that up after you take possession of the house.  You will have
two sets of all the paperwork including escrituras.  So you may want to keep
the other door in case in the future you want to make the large apartment
back in to two smaller apartments and sell one.

Q Monique We have been told that as we do not live all
year in Spain we do not need to be residents but a friend of ours says that
we do.  When do we need to become residents?

A You are resident in Spain for tax purposes if..You spend more than 183
days in one calendar year in the country whether you have obtained a
Residencia or not. Days spent in Spain do not have to be consecutive and
temporary absences from Spain are ignored for the purpose of the rule,
unless you can prove that you are habitually resident in another country for
183 days in the calendar year you will be considered a Spanish resident.  So
even if you stay here and go back to UK for long holidays you will still be
classed as resident.

You are also classed as a resident if your centre of economic interests is
in Spain, i.e. the base for your economic or professional activities is in
Spain that means if you own or run a business from Spain or work in Spain.

or your centre of vital interests is in Spain  i.e. your spouse and/or
your dependent children live in Spain. If this is the case you are presumed
to be a Spanish resident, unless proven otherwise, even though you may spend
less than 183 days per year in Spain.

And finally if you live on a boat within 12 nautical miles of Spanish land,
you are a Spanish tax resident. So there is no escape.. go and see a
Gestoria and get it sorted out before you have any
problems

Q John Why do Cadiz Casa obtain a Nota Simple and look at the
property records in the Townhall before they put a house on their website
for sale.  None of the other agents I have spoken to seem to do this.

A Well John far from being the odd men out.  We are doing what any agent
should be doing which is practicing due diligence.  That means that we
ascertain the legal position regarding a house before we sell it.  It is a
bit of a novel idea in Chiclana I know but we hope it will catch on.  We
look at the Nota Simple and we go to the planning department of the Townhall
and find out exactly what papers the house has and what it does not have so
we can correctly inform any potential buyer.  If you sell a house without
giving all the information then it can cause big problems later on for you
and for us plus it is only right that you should be giving the full
information to anyone looking to buy and that is how we operate our
business.

Q Anne and George they own an apartment which they rent out for
part of the year but they do not live in Spain.  They are asking “do we have
to pay tax in Spain on the money we get from our property even though we do
not live in Spain and are not residents.

A Short answer is yes.  A new law dated 2 March 2010 has introduced a change
in the Income Tax Law for Non Residents which changes the way they pay
Income Tax on properties let in Spain. Up to now, non resident tax payers
paid 24% of the gross income on properties let in Spain, they were not
allowed to deduct any expenses at all, there were examples when the tax paid
could exceed 60% of the actual profit.

However, The European Union has pressed Spain to change this situation, and
with the new Law, you can now deduct all expenses directly connected with
the letting of the property i.e.  electricity, water, community fees,
rubbish collection, local rates, maintenance, cleaning services, interest on
mortgage etc in exactly the same way as residents do.

However, it is not always straightforward. If you were letting your property
365 days per year, you could deduct all the expenses, but if you rent only a
fraction of a year the expenses have to be pro-rata.

If the property is only rented out for part of the year, the earnings are
calculated as above for the rented period. For the part of the year that it
lies empty, the calculation is made as for “Deemed (Rental) Income which is
based on the catastral value of the property so it is  a bit more
complicated.

Basically  if you are non resident but own a property in Spain you need to
make a tax return.

Q Richard We want to sell our house but we do not have a lot of
money to spend and there are bits which need work done on them in the
kitchen and bathroom.  Do you have any suggestions as we do not want to lose
a sale.

A Well the first thing to remember Richard is that a viewing will take on
average between 10 minutes and half an hour.  In that time you have to meet
them and have a chat, look at all the rooms and ask any questions they may
have so they do not spend much time in each room and what you think is
glaringly bad may not even be noticed by them as they walk round.

You can improve the look of any property by making sure that it is clean and
all clutter is tidied away.  Maybe put a nice table cloth and a  large vase
of flowers on the kitchen table which will brighten the room and give the
kitchen a cared for appearance.  The bathroom can be made to look nicer with
some bright towels, bathmat and maybe a picture.

Bear in mind that the people viewing may well want to redecorate anyway so
do not be put off .. and what you see as horrible someone else might
think is fine.

Q Sue I have had some Spanish clients view my house and they
turned up with a camera and photographed the rooms.  Is this normal.

A Its not abnormal.  I have had to trail round while a potential purchaser
photographs the house in great detail.

Some buyers especially Spanish buyers are very suspicious and they want a
photographic record of what is included in the sale .  Sadly they are
somewhat justified in this as some people do strip everything out of a house
including the kitchen units, curtain rails and even the light bulbs, I know
it sounds ridiculous but it is true.

It is very important especially with a Spanish buyer that you make clear
exactly what is included and what is not.  Even if you have to literally
walk round and point at every item.  The best thing is to give them a list
to confirm what is included.

Q Lilly we have recently had a terrible flood in our house due to a
mains water pipe which has been leaking inside the wall for some time giving
way completely and bursting through the plaster.

The insurance company came out and had a look and they are arranging to
repair it and replace the damaged furniture but our water bill just arrived
and it is 500 euros for all the water which has been running under the house
before we found out about the broken pipe.  They say we cannot claim this
from the insurance is that right.

A I am afraid that the insurance only covers the costs from the time that you
find the fault not any costs prior to finding it and the water loss was
prior to finding it.  If it is a relatively new house then I would try going
after the builder for defective workmanship but it depends on how old the
house is and you have not given me a date of construction so I cannot be
sure.

Q Bill  We bought an apartment with a communal pool so that we could
have holidays and do a bit of rental to help pay the bills.  The neighbours
are complaining because our rental people use the pool.  They are saying
that only house owners can use it and that they will ban us from the pool if
we continue to let our rental people us it.   Can they do this.

A This is a common problem in Spain with foreign owners and to be honest makes
you ashamed of your own countrymen at times.  You cannot dictate who uses a
communal swimming pool if they have the permission of the house owner.  For
instance your sister may move in to a house nearby which does not have a
pool and you would quite understandably give her the key to go over and have
a swim.  Nothing can be done about that.  Your right to use the pool will be
written in your title deeds and nobody can take that away from you so do not
worry.  If the people pay to stay in your house and have your permission to
use the pool that is the end of it.  Most houses have a number of people who
are permitted to use the pool so long as you stay within that number there
is nothing which can be done to stop you.

Q Lisa and Tony We bought a townhouse on a new development
to use as a shop to sell furniture and decorations.  We have received a
letter from the Town Council saying that we cannot use the premises for this
purpose and that we have to close down.  Can they make us close.

A In every new housing area there is a provision for commercial premises.  As
you will know sometimes all the shops are not bought and they lie bricked up
which is a real problem in some areas.  If you buy a townhouse within a new
urbanization and there is a commercial unit provision then likely in your
title deeds it will say that you cannot use a private dwelling as a retail
outlet.  You can use it as an office but not a shop.  My only suggestion is
that you turn it in to an office with photographs of the items and take
orders only at that premises but it means that you will need to find another
property to store the stock.  Otherwise, I thin it is likely that the Town
Council will close you down.

Q Ashleigh We live in an urbanized area  in a town
and behind our house there is a large plot of land which has not been sold.
We checked before we bought and the planning department have it registered
as a building plot for two houses.   Last year our neighbours  had 6 large
pigs delivered.  They have built a pigstye and the pigs are living there
quite happily but at the end of the year a whole group of people arrived and
a man in a white coat who killed one of the pigs right behind our house in
the field.  He then produced a table and started to butcher it and cook
things in an oildrum over a fire.  Our children were nearly hysterical and
all the other pigs were screaming.  Nothing further has happened but my
husband saw the man in the white coat at the house last week and we are
worried that they are going to do the same again.

A It sounds like they had what is called a matanza .  It is a very old ritual
where they slaughter a pig in the autumn.  I think the man in the white coat
was a slaughterman and butcher and they go round the annual matanzasa where
pigs are slaughtered and  kill the animals and prepare the meat.  It is a
bit old fashioned now but it does still go on but not usually in the middle
of an urbanized area.   It is more of a country thing really.

You need to go to the Policia Local who have a division to deal with
animals.  They are a protectorate and their sole duty is to look after the
welfare of animals.  Tell them what has happened.  They will be keen to
ensure that the animal was slaughtered correctly and humanely.  You need to
go also to the Guardia Civil and ask to make a denuncia on the basis that
animals are being slaughtered on what is designated an urbanized piece of
land for the construction of houses.  I am not quite sure what law would
cover this but you cannot use a plot of land for building as an abotoire.
The Guardia will go to your neighbours and say there has been a complaint
and that may be enough to stop this happening again.

Q Adele I have been told that when our area is urbanised we will
loose our front wall and a section of our garden.  Will we be compensated?

A Unfortunately Adele you will not be compensated.  The Townhall have to make
the streets the required width for emergency vehicles such as ambulances and
fire engines to get past and if your wall is in the way then they have the
right to remove it.  People in the same position who´s houses are on corners
will possibly lose more land if the corner is quite tight as they have to
allow for a fire tender at a certain speed negotiating the corner in one
cut.

Q Juan My parents were Spanish but I was born and brought up in the UK.
I bought a house in Conil 6 years ago to use for holidays.  I now want to
sell it but when I bought the builder wanted a lot of the money paid in
dinero negro or black money.  So the property was only declared at 80,000
euros and I am hoping to sell for a lot more.  Can I have some of the money
paid in black money still otherwise I am going to be paying a lot of tax.

A Well Juan black money is not legal.  It never was but it was an ignored and
accepted part of Spanish life in the past.  Inevitably the end buyer was
always going to be the loser because when the government clamped down on the
practise whoever was the last seller was going to have to pick up the bill
for all the black money transactions on that property in the past and
unfortunately that has tuned out to be you.  Property sales were nearly
always under declared to avoid taxes for both the buyer and the seller and
many envelopes of cash were passed around.  However, the Notaries are now
required not only to state the declared price on any house transaction but
the actual selling price as well so in my view you must declare the house
completely to avoid any problems and comply with the law.

Q  Karl.  My house is now 2.5
years old and a lot of things have started to go wrong.  The plaster on the
facade has started to crack and some has come away.  We had a leak though
the ceiling in the bathroom from a bad joint and some of the tiles on the
terrace have started to rise up and become loose.  I have advised the
builder who built the house but he has not turned out to repair any of the
problems and says it is too long since he built the house to come back and
make repairs.

A Well Karl most good builders will turn out for the first year or maybe even
the second year to repair problems but when you enter the 3rd year it can be
more difficult to get them to do things.  However, providing you bought a
property with a 10 year guarantee you are certainly covered as all of these
problems have a cover under that guarantee of more than 2.5 years.  I
suggest you dig out the paperwork you had from the builder when you bought
and find the bit about the 10 year guarantee.  Then go to the builder and
remind him about it.  If he still refuses to do anything you have two
options.  You can threaten him with a denuncia or speak to your
solicitor.  Alternatively
get your household insurer (this insurance is probably through your bank) to
come out and look and they will do the repairs and pursue the 10 year
guarantee people for the money.  So you have lots of options open to solve
this problem

Q Alison We put our house up for sale with a local agent  but we
have now seen it advertised with another agent, who we do not know at a
higher price.  Is this common.

A It is not uncommon for Spanish agents to pass properties to other agents and
that agent adds his commission to the price of the house which is why the
house appears dearer.  If the other agent sells your house you will still
have to pay the commission to the agent who took the house on in the first
place and the second agent will take his commission from the buyer. It does
give you the opportunity for additional clients but if you do not want
another agent to be involved then you have to tell them.  In this instance I
would ask your agent who this person is and why he has your house for sale.

Q Sid  I saw a house advertised for sale on the internet.
Theprice was 185,000 euros plus taxes.  We made an appointment to view the
house and liked it but the agent said the price had gone up to 192,000 euros
plus taxes. Can they do this and was it because we are Brits.

A Well Sid, the agent should really have told you the increased price before
you viewed, if they knew, but I would imagine if you look in the disclaimer
on their website it will say something about prices may be altered etc so
there is not much you can do other than ask if the seller will take an
offer.  Whether the price went up because you are Brits I cannot say but it
has been known for some agents to charge a higher price to foreign house
hunters.  I personally hate the practise and think it is offensive and
dishonest but there are some who do still practise it.  I suggest you find
yourself another estate agent.

Q Kelvin We are selling our house
and the Spanish buyer knows that we rent the house.  We have received a
letter from his solicitor saying that we are not to continue to rent the
house after he signs the private contract.  We have not received any money.
The estate agent has taken a 2000 euro deposit but that is all so can he
dictate what we do with our house.

A Sadly Kelvin he has the right to ask.  He does not want the house rented out
incase there is any damage or excessive wear and tear because after he has
signed the private contract there is no going back for him. He is committed
to buying. So he does not want to be committed to the purchase of a house
which might be damaged before he gets the keys.  In my view it is a
reasonable request.  The only thing you can do is delay the signing of the
private contract until your rentals are finished but bear in mind he may
decide to look for another house.

Q Audrey We have found a property in the Costa de la
Luz which we want to buy.  We were thinking of using a UK based solicitor
would you recommend this.

A Unfortunately Audrey I would recommend that you do not use a UK based
solicitor.  I know that they say they can do the same job but by virtue of
the distance it is very difficult for them to provide the same service as a
local solicitor.  As with most things you cannot beat local knowledge.  I
have dealt with clients using UK based solicitors and it has been very
difficult.  On two occasions the clients have been left to make their own
water and electricity contracts which if you cannot speak Spanish is almost
impossible and we have had to step in to assist them although this is
normally part of the solicitors duties and included in their fees.  So I
would strongly recommend that you contact the Spanish Law Society or Colegio
de Abogados for a list of solicitors in the area you are buying in and go
with one of those.

Q Angela  We are desperate to return to the UK.  Our
mortgage is 75,000 euros and has another 10 years to run but we are
seriously thinking of locking the door and giving the keys back to the bank
just so we can go home. We have been told that our house is illegal and it
will cost us a lot to get things sorted out.  If we do this will it leave us
in a bad position.

A Well. If you default on the mortgage which is what you would effectively do
then your owings to the bank will not only be the 75,000 euro cost of the
mortgage.  Every mortgage when it is set up has a default value noted on the
documents which you will have signed.   In Spain this is a very high costs
and can be twice or three times the mortgage.  So you could end up owing the
bank 225,000 euros not 75,000 euros.  Any other assets you have in Spain
could be seized to pay off this debt and if you retuned to Spain in the
future then you would not get another mortgage and as soon as the
authorities knew you were back the bank would most likely persue you.
Whether they would pursue you in the UK through the reciprocal agreement I cannot
say but remember we are both EU countries so there is a possibility.  I
really would not recommend that you take this course of action.  The best
thing to do is rent the house out and put it on the market.  If you have
made the decision to go then it is better that you sell for the price of the
mortgage and pay it off.  Remember also you will need to check if there are
any outstanding rates payments which need to be paid before you leave or
these could show up on a Nota Simple which might put the prospective
purchaser off.

Q Lilian We are thinking of selling our house but
do we have to use an Agent.

A Well you don't have to use one Lilian but there are a lot of benefits to
using one.  A good agent will be constantly receiving enquiries from people
all over the world looking for property.  We receive around 10 – 20 every
day.  They should be able to match the customer to the property and when  you
put your property on their books they should go back through all the
enquiries they have had and look for customers who have not yet bought and
are looking for something in your area.  Using a good agent also gets you
out of having to negotiate a deal with a prospective buyer and they will
make sure that your solicitor has all the details he needs to prepare a good
sales contract which will be binding and make sure that your sale goes
through without any problems.  They will also act as a go-between to sort
out what is included in the sale, to make sure a deposit is paid and to
arrange Notary appointments etc.

Q Damien We have put down a deposit on an off plan
apartment about 18 months ago.  We are very shocked today to receive a
letter saying that the builder has gone in to voluntary liquidation.  What
can we do.

A Well firstly, if you buy any property off plan you want to ensure that the
builder has a guarantee in place to ensure that if anything happens to his
company you will be covered.  Normally, the site will be taken over and the
building work will restart but if not then you should get your money
back.  However,
I would stress to you that you have to ask for the guarantee as not all
companies offer it voluntarily and it is not generally automatic.  So to get
the cover make sure you or your solicitor ask for a copy.

Q Jordan We want to sell our house and were advised
to get a Nota Simple it says Horizontal Division at the top but the man in
the office says our house is a prondiviso …….. we are confused.

A Well Jordan  the bit at the top which says horizontal division refers to the
house.  There are two divisions one for the house and one for the land.  You
need to read the main body of the document to see what it says about the
land.  Away back in time some naughty people discovered a loop hole in the
law which allowed them to divide one property into several apartments and
get the paperwork altered accordingly.  They then demolished the original
building and built new houses which theoretically then had a horizontal
division but the land was not divided.  So you would own 100% of your house
but only a percentage of the land it stands on.  That is why you will see
properties described as No1 or letter A on a Nota simple.  That is
identifying which part of the building which no longer exists you own.  If
the Nota simple office told you the land is a proindiviso then I would
imagine they are right.

Q Louise We are building our own house but we want to make a
few alterations.  Can we do that and use the original planning permission or
do we have to start again.  

A You can make up to 40% of alterations to the
plan  but over that you will have to submit new papers.  Small changes like
moving a door can be notified at the end of the build but if they are major
changes and amount to 40% or more then you will have to go back to the
Architect and get him to sort it out before you start.  Do not proceed with
the alterations until you have checked because contrary to common belief
Spanish Planning Departments can be very strict and if they are not happy
then you do not want to have problems at a later date and have to alter it
or worse still pull it down.