Cadizcasa Blog » Spanish law

DIY LEGAL ADVICE CRAZE WHICH IS DESTINED TO LEAVE MANY IN DIRE STRAITS

cadizcasa — Wed, 16 Mar 2016 11:49:00 +0000

I have never had a great love of solicitors, who seem to have the ability to make good while the sun shines and still make good under leaden skies and far be it from me to try and spend a client´s money for them, but some expenditures are totally necessary. For instance, legal advice.

I have watched with concern over the past two years, the increasing number of clients venturing in to DIY legal work when buying in Spain. The trend for giving on line advice through forums about buying, and companies providing checklists for those with no legal qualification to follow, is worrying. While it might drive traffic to these sites, it is not doing you, the buyer any favours.

It is my experience that there is a distinct desire not to engage a solicitor by many people looking for a property to buy. This is a highly dangerous pastime. Many say to me that they will engage a solicitor “when we find the right property”. Quite frankly, that is like bolting the gate when the mare is already half way down the lane to the village. You need legal advice from the moment you view a property which interests you. If you are looking at buying a property which is not fully legal, you should be taking advice before you even venture as far as a viewing.

I have had people trying to work out their own taxes for a sale. Often this is impossible, because even the solicitors have to consult the Townhalls to work out the total costs. Others ask for legal papers which within a couple of questions, it becomes clear they have no idea what they are asking for and probably even less idea about what to do with them if they can obtain them. Trying to look through page after page of a Spanish escritura (title deed) when you don’t know what you are looking for is a pointless task. It is easy to miss something, misinterpret something or just not understand the nuances of the legal language.

Taking a trip to the local Urbanismo office at the Townhall is also a pointless task unless you speak Spanish and have some appreciation of the information they can offer. By the time you get to proindiviso, afuera de ordinacion and sin licencia de obra, most people´s eyes are spinning like a Catherine wheel on Guy Fawkes Night. If you do get a helpful assistant who can manage a couple of words in English, “not legal” tends to send people running for the plane. There are many facets of illegal and some are considerably less worrying than others, so you really need to be equipped to dig down and get the full picture before you can make an educated assessment about a property. Many people buy, what in the purest sense are “illegal” properties, but having had everything explained to them by a qualified person, they have chosen to take in many cases, a small risk and to buy, but you need that expert advice before you should make such a decision.

Likewise, worrying about how you will know if someone owes money to the electricity company or the community is not something you should be concerning yourself with until you have agreed a selling price and are on the paper trail towards a purchase. Solicitors obtain certificates from the various utility companies and the community Administrators to ensure that all debts are paid just prior to signing at the Notary.

The most alarming situation I have encountered are properties where an inheritance has not been dealt with in Spain. The inheritors think they can sell because the property was passed to them via a Will in the UK. This is not the case and there is considerable paperwork required to sort out such a case and many months can pass before a solution is found. So, if your property was inherited, you need to deal with this aspect before you try to sell as the delays incurred could cost you the sale and again, you need a solicitor.

When I see people in the A & E with checklists self diagnosing their injuries, then I will accept that you are safe to buy a house without the expert advice of a solicitor, because while making a bad purchase may not kill you, it will certainly cause you stress and anxiety, not to mention expense and many will find themselves in dire straits.

THE NEW RENTAL LAWS NOW BEING ADOPTED BY ANDALUCIA

cadizcasa — Wed, 16 Mar 2016 11:42:08 +0000

The long awaited rental law has now come in to being for Andalucia. In the form of the Decreto 28/2016, de 2 febrero. As expected, its publication has been met with a wave of panic and confusion amongst holiday home owners. So I will quickly put you out of your misery and say, that YES, you can continue to rent your property, but you do have to comply with certain terms.

Why has this new law been brought in? Within the pre-amble to the new law is says that the Comprehensive Tourism Plan 2012 – 2015 stated that “there has been an ever increasing use of private accommodation in tourism”. The face of tourism has been changing since the turn of the century. From 2000 onwards, we saw a different type of tourism, a much more self-sufficient client who wanted to do their own thing. People moved away from hotel based holidays, they did not want to be herded in to dining rooms which looked like school refectories, or told that they had to stay out of their rooms between certain hours for the purposes of cleaning. The attraction of white flesh being barbecued in the Spanish midday sun, lined up like sardines on the hotel sunbeds, was on the wain. The new breed wanted to explore in their own time, and under their own steam. They wanted to go native and eat in proper Spanish restaurants where the locals ate and they wanted to experience Spanish life as it really is, not that hybrid, EuroSpain we used to peddle to them in the 70´s and 80´s.

The pre-amble further goes on to say, their aim is to prevent unfair competition, and to regulate and ensure a quality of service to tourists. To establish minimum guarantees of quality and safety for people using tourism services. I think the point may have been missed here, because it seems pretty obvious to me that people are moving because they are not getting the quality of service they want in the other sectors and the massive increase in private holiday rental suggests that people have found what they want in private letting. So perhaps the best thing to do, would be to support and help those who are actually providing what people do want and what they are prepared to spend their hard earned cash on.

Yet another rather odd claim is that they are aiming to protect the environment and urban environment and the impact this type of tourism has on it. I am no genius, but I somehow think that providing building licences to build large hotels accommodating hundreds of people, not to mention, their carbon footprint, is not the best way to protect your environment.

The law does not affect a property rented to the same person for 2 months or more, i.e. a long term rental. It only affects short term letting where people rent for a few days or weeks and it only applies to single or double rental units. A group of properties consisting of three or more units, owned by the same owner, located within the same building or neighbourhood, which are located within a 1km radius of each other, will be classified as Touristic Apartments and will be subject to Decree 184/210 of 20 April.

In order to continue renting, you will have to register, receive a registration number and comply with the following points:-

- The number of people allowed to use a rental property will be the capacity which is shown in the habitation certificate. Therefore adding sofa beds or inflatable beds to increase capacity will be a no-no. Due to the unique situation we have in Andalucia with many properties not holding a habitation certificate, some of the Townhalls, namely Conil, are currently looking at offering an alternative document to cover this gap but it will depend on the local Townhall as to how they deal with this and a property without a habitation certificate cannot join the register and is exempt from renting at this time.- All rooms require to have direct light and ventilation and have coverings for the windows by way of blinds or curtains.

- The property must have suitable furniture, equipment and utensils and in sufficient quantity, for the number of people occupying the property.

- Properties available for rental from May to September must have a cooling systems in all bedrooms and the lounge, this must be a fixed system not a portable system.

- Those operating from October to April must have a heating system in all bedrooms and lounge and it must be a fixed system not a portable system. This is not compulsory when the property is located in a building classed as “of Cultural Interest” or where the modification or building work for such an installation is prohibited.

(Most importantly, you do not need to do all the work at one time. Owners will be given one year i.e. to 12 May 2017 to make these costly and time consuming alterations to their property).

- A full first aid kit must be supplied.

- Tourist information must be supplied either in paper or electronic format. This must include a map of the local area, information on restaurants, cafes, shops and food stores, the closest parking to the house, medical services, public transport and general guides to the local area.

- A complaints book must be made available as well as a sign saying that a book is available.

- There is a mandatory clean before the entry of new tenants.

- Clean bedding and linen must be made available and a changeover set also supplied.

- Clients must be given a contact telephone number where any issue or question can be dealt with immediately. This can be the property owner or their representative.

- You must supply operating instructions for all appliances and devices.

- You must inform clients of any restrictive rules such as those which apply to smokers and pet owners

The law then goes on to describe what you need to do when a new client arrives to stay in the property.

- You must supply a document, stating the name of the owner. The alphanumeric registration code of the property which is shown in the Registry of Tourism of Andalucia, you must confirm the number of people allowed to occupy the property, the dates of entry and exit and the total price plus the phone number as described above for the person to be contacted regards issues or questions. One copy of this must be signed by the clients and retained by the owner/agent for one year and made available to the authorities if requested.

- If, not otherwise specified by the owner, the entry time will be 16.00 hours and the departure time will be 12.00 hours.

- The landlord or agent must show the clients around explain the use of the various appliances within the property and supply them with pass cards and security codes as necessary.

- All clients must provide a copy of their identification, passport or identification card, not only for the person who made the booking but for everyone who will be staying in the property.

- Prices quoted must be inclusive of water, electricity, heating and aircon, also cleaning , bedding and linen. It is compulsory to handover receipts/invoices for every payment made including the reservation fee to a guest. This renders unusable, any form of meter in the property where a client has to purchase cards in order to top up their credit to use the heating or cooling system.

- All contractual terms must be clearly laid out in advance and any penalites.

The landlord is free to decide on any of the following points providing the client agrees (price, booking, reservation deposit and cancellation terms. If these are not worded in to the agreement, then by default, the standard rules apply, which are:-

- A maximum reservation fee of 30% of the total price

- If a booking is cancelled over ten days before arrival a 50% refund of the reservation fee must be returned to the client.

- If the cancellation happens in under 10 days, 100% of the reservation fee may be withheld by the owner/his agent.

- If the owner require to cancel, he can do so without penalty over 10 days in advance prior to the date of arrival.

- If the cancellation is made under 10 days prior to arrival, the guest must be compensated 30% of the final total price.

- If the cancellation is due to unforeseen event, both the client and owner are exempt from paying compensation to the

other party. Such instances would be flash flooding, earthquake, strong winds, general strike.

If you provide at the time of booking, your terms and conditions for the above, then you do not have to comply with the government rules. However, if you do not supply to the client, your terms and conditions for payments, arrival times etc, the government rules will apply.

These are the rules and regulations. One thing is for sure, you need to register. The register is being called the ATR which stands for Andalucia´s Tourism Registry and in order to join the Register, you will be required to supply the following:-

- Property address, catastral reference, number of potential guests, which is required to match the habitacion certificate which you also need to supply.

- The owners´s personal address and the address for official notifications.

- Full information for the management agency or designated person if the owner does not wish to deal personally with clients. The owner is responsible for ensuring that the ATR is updated of any changes so the information held remains accurate at all times.

We understand that registration will be open on 11 May 2016 for Andalucia.

Once your inscription is made, details will be passed to the local Townhall and the alphanumneric code allotted to your property must be displayed on all advertising and publicity material i.e. internet, brochures, magazine adverts, rental advertisements.

There are some, but very few exemptions from the new law:

- You are exempt if the property is let to friends or family without an exchange of money.

- As discussed previously, when a property is let for more than two consecutive months to the same person that is regarded as long term letting.

- Properties on rustic land, as these are subject to their own legislation under Decree 20/2002.

- Also mentioned previously, landlords who own three or more properties in the same building or within 1km of each other. This is not good news at all, as these properties will now be covered by the much harsher Decree 194/2010 (Tourist Apartments) which basically says that these properties are regarded as a hotel. They are subjected to much stricter regulations i.e.that an owner cannot use the property for more than 2 months per year and that they must give the management of the units to a professional company for a minimum period of 10 years!!

Now, here the otherwise relatively clear law becomes a bit vaguer when dealing with who this law affects. It says that it is for property located on residential land, in Andalucia, rented out to tourists regularly for short term, holiday lets (days, weeks, up to 2 months), where a reservation system is in place and enabled, i.e. the property is visible to clients and they can book or where the property is advertised on specialist media by companies who intermediate between landlords and tenants in exchange for commission or payment such as travel agencies, real estate agencies, holiday rental websites such as Airbnb, HomeAway etc.

As is always the case, if you cannot bend the child by reason, use a rod! Fines and sanctions have been put in place, ranging from 2000€ to 150000€ and there is also a possibility that they may stop you renting at all if you really upset them or commit repeated offences. Some may try to continue renting without applying for the necessary registration but those not registered, either under this new legislation or the older law dating to 2002 for rural property will shine like a sore thumb on the pages of the online rental agents and if Spain has the will, people could be prosecuted in the future.

For those not in a position to handle their rental property requirements under the new law, personally, Cadizcasa will be offering a complete package service in due course and further information can be obtained by contacting us at info@cadizcasa.com

The fact an alphanumeric code is going to be allocated to each property once registered makes hiding a bit difficult should an owner think that might be a solution. It is widely believed that the Spanish government are using internet crawlers, also sometimes called spiders, to systematically search the web looking for property which does not show a registration code and is, in their eyes, advertising illegally. Of course, finding an ad for a house in Medina Sidonia for holiday rental, with a UK mobile number and a contact named for instance Jacki, does not lead them straight to your door, but it certainly gives them a good lead. The internet holiday rental portals are currently hiding behind data protection which prevents them giving personal details to third parties but whether the Spanish government will find a way around that obstacle, only time will tell and you have to consider whether holiday makers will want to book a property which they do not see as having been “approved” by the local government. So, it may affect bookings for those who decide to lay low and hope this whole affair goes away. Of all the laws I have seen brought in to Spain over the past 16 years, this is the most heavily backed law. It seems that the Junta are determined to make this law work so beware.

Registration has been in place in Catalonia for some time now and the Catalan government certainly seems to have the hump with the modern way of renting through international property portals and their angst with companies such as Airbnb and HomeAway has culminated in them taking cases against both with fines of 30K.

Airbnb has responded by arguing the benefits they provide to cities and their residents. They cite the financial benefit home rental offers to hard up property owners. In the case of Barcelona, one study cited by the company found that 75% of those renting homes out through Airbnb have incomes below the national average. It is my experience with non-resident property owners, that they rent in order to cover the costs of keeping a second home abroad, a pastime, supported and encouraged by past Spanish governments in order to bring foreign money in to the country and support local trade.

A recent report suggested that this company alone had brought 4000 new jobs to the city and 128 million euros per annum in revenue.

I therefore, find it very sad to read some of the comments made by Reme Gomez, of the Barri Gotic neighbours association in Barcelona´s Gothic quarter. She says “people are making money and the rest of us are paying for it”. Her organisation has spent 10 years calling for a complete ban on private tourist lets. She claims that “in many cases the flats are used as a place to party, following many of the apartments in her own housing block having become tourist holiday lets. She goes on to say ” rowdy drunkenness aside, there’s an inherent conflict between the schedules of locals, who often work and have children, and those of tourists, she added that “tourist flats oblige the rest of us to live in a hotel, but without any of the same conditions” she says “if you´re in a hotel and its 2am and the other guests are being too loud or vomiting in the stairwell, you can call someone to deal with it. Here no”. Antisocial behaviour whether it is by a local or a tourist is a police matter if it affects the wellbeing and peace of the neighbours and I am a bit bewildered that there is nothing said about their involvement here. I do sympathise with the nuisance aspect, I come from a tourist city myself and am well aware of the behaviour of some people when they are out of their home environment and think they are “anonymous”, but to prevent tourists enjoying the spectacle of some our most beautiful European cities because a very small minority of tourist cannot behave in a civilised way, would be a tragedy and something which I do not feel anyone has the right to impose.The answer is to take to task the property owners for failing to control their rental clients, not to shut down tourism and deny many the chance to see a fabulous area of a truly spectacular city.

Not everyone is so anti tourism, Amsterdam was one of the first cities to pass an “Airbnb friendly law”. New legislation was created, with the sharing economy in mind, that permits residents to rent out their homes for up to two months of the year for up to four people at a time. Owners must pay the relative taxes including tourist tax. A bill was also passed in France legalising short term rentals of primary residences, a great boost for Paris tourism. Certainly in areas of the UK a property is rates exempt so long as it is advertised for holiday lets on a holiday portal or with a rental agent.

Spain has had it tough for the past 7 years, we need to open up to tourism, not shut down to it and our government needs to get with the modern world and stop looking at holiday rental portals as if they are the gateway to the underworld. After all, its not that long since the man at the back of the “New Wheel Invention Exhibition” was muttering that we did not need a round thing to move stuff about more easily, his dad didn’t have one nor did his grandad, and they did just fine!

THE PAROT DOCTRINE

cadizcasa — Wed, 09 Jul 2014 10:23:18 +0000

You may have read in the papers about Spain´s Parot Doctrine being over turned by the European Court of Human Rights, forcing them to release from prison some pretty heavy duty criminals before the end of their full jail terms.
The Parot Doctrine was a 2006 Spanish Supreme Court decision that sentence reductions for good behaviour where a prisoner could “earn” one day off their sentence for every two worked or spent studying should be taken off the total sentence and not the maximum sentence. This meant that for prisoners in Spain, where total sentences can run in to hundreds or even thousands of years, a prisoner would have little or no chance of earning time off their sentence by good behaviour. This was found to be a “cruel punishment” by the Strasbourg court.
The Parot Doctrine is named after Henri Unai Parot, an Eta member from the French side of the Basque country who was the first person affected by this new process.
Following the overturning of the Parot Doctrine by Strasbourg, a high profile prisoner named Ines del Rio Prada, 55, has been released and gone to ground. Spanish official sources say she is not registered anywhere in Spain, causing concern in many quarters. Ines was a member of the Madrid Commando, a particularly bloodthirsty cell of the Eta organisation. Arrested in Zaragoza in July 1988, she was caught driving a car packed with explosives intended for an Eta attack on the Costa del Sol.
She was sentenced to more than 3,828 years in jail, most of the sentence pertaining to her role in an attack on the Guardia Civil police in Madrid which left 14 dead and 40 injured but also other attacks in which she killed a total of 24 people. The sentence was converted to the maximum life sentence of 30 years meaning that she should have left jail in 2008 having “earned” 6 years of reduction in sentence by working in the prison but with the Parot Doctine applied she remained in prison after 2008.
Spain have been ordered to pay Ines 30,000 euros as compensation for the additional years she served past the natural end of her sentence.
That said, she is unlikely to see a penny of the payout as she was ordered to pay nine million euros to the next of kin of the victims and to those left disabled in the blast, as well as to the State for the clear-up operation and the cost of treating the injured.
Ines had given an address in Tafalla (Navarra) during her prison term and she has also been connected to two addresses in Pamplona, one where her sister lives, but she did not show at any of these addresses after her release. The last sighting of Ines was in the backseat of a vehicle being driven away from the prison by family members who had met her at the prison gates waving the Basque flag. Ines husband nicknamed “Willy” is also a central member of the Eta organisation.
Another Eta prisoner affected by the Parot Doctrine was released recently from Worcester prison in the UK. Antonio Troitino, sentenced for his part in the bombing of Hipercor in Barcelona in 1987, is the only case involving the UK courts. He was originally sentenced to 2,700 years for his part in the murder of 21 people but he was released 4 years early for good behaviour.
Some 7 days later Spain used the Parot Doctrine to circumvent the time limit and ordered Troitino to be rearrested. He fled and was eventually apprehended on an international warrant in the UK in June of last year.
The High Court in London ordered that he be released from Long Lartin prison recently on condition that he report daily to a police station. Spain´s high court now has to decide whether to push for his extradition but in light of the release of Ines del Rio Prada the question is whether they will take things further.
The overturning of the law not only affects terrorism cases but also other serious cases such as the brutal abduction, torture, rape and murder of 3 teenage girls in the Valencia province in 1992. Referred to as the “Alcasser murders” the brutality of the crime has affected the small town ever since and its population has dropped over the ensuing years, some say as a direct result of the stigma attached to the crimes. Miguel Ricart one of the accused had the Parot Doctrine applied to his sentence by Strasbourg and was released on Friday, raising fears about the safety of the public when such notorious killers come back on to the streets.
There are 47 member states in the Council of Europe and Spain is one of only five who do not have a life sentence, the others being Portugal, Norway, Croatia and Serbia who´s maximum sentences range from 21 to 40 years.

SPANISH PLANNING PERMISSION – FACT OR FICTION?

cadizcasa — Wed, 26 Sep 2012 08:44:55 +0000

Many people think that Spanish planning permission is fiction. It does not exist, you don´t need it or you can just ignore it. Planning permission in Spain is not dissimilar to planning permission in other European countries such as the UK. If you want to build an extension, you need permission, if you want to build a garage you need permission, in fact, if you want to move the toilet pan from one end of your bathroom to the other, you need to seek permission from the appropriate authority.

So why do so many people fail to get planning permission? Well, they ask the builder when he is round to quote if they need it and he says no. This little white lie comes in the category, “the cheque is in the post”, “trust me I am a doctor” etc. Why would they tell a little porky – because the builder knows that if they apply it will take a considerable amount of time before they get the permission, if they can get it at all and the client will probably have taken cold feet and changed their mind before they ever get to loading up their trowel with a bit of cement. The other popular smoke screen is that you can do the work and get retrospective planning permission. Well, in some cases that is true but as with any retrospective planning permission, the planning department have the right to tell you the work has not been carried out to their requirements or would not have been allowed in the first place and they can make you pull it down. On top of that, you may well face fines and penalties for not having sought the right permission in the first place.

Sometimes, people do not get permission because they wrongly assume that as they have only closed in a space, which already existed they do not need any permission. Wrong! Closing in a space like a terrace by bricking up the gaps constitutes an extension and needs planning permission. The only way you can close an area without planning is with removable units, which can be de-assembled and removed. Likewise people assume that removing an internal wall to open up a space also does not require permission, well again, you are wrong. The reconfiguration of internal spaces also requires paperwork. So the next time your wife says, how about knocking down that wall and making this a big kitchen diner, tell her to buy a tray and carry the food to the table in the next room! It will certainly be cheaper and stop you getting hit with fines or worst still demolition notices to remove your work of art and restore the area to its former glory.