In total, the rain that fell in our region last winter caused damage for an estimated amount of more than several million euros, and generated an avalanche of insurance claims mostly for infiltrations and humidity in homes. This is confirmed by the data from the Consorcio de Compensación de Seguros, which since Christmas has received more than two thousand cases of damage to properties.

The Consorcio de Compensación de Seguros (in short, CCS), is an organization under the Ministry of Economy and Finance, that is responsible for covering those insured with private companies when the causes of the incident are a matter of extraordinary weather such as floods, rainfall in excess of 40 litres per square metre per hour (which occurred on many occasions last winter) or winds with an average speed of more than 90Km/h or earthquakes.

Ask your trusted Spanish lawyer for advice if you need help in filing the claim. Most insurance policies allow clients to use their own lawyers.

What is the procedure?
The first thing to have is a well-defined insurance policy that will clearly specify the covered risks and compensation, both for the property structure and the property contents.

From whom should you claim?
If the water infiltrates the property from bottom to top (for example from the street or from the garages into the house) you will have to address the claim to the CCS. If the water infiltrates the property from top to bottom (for example from the roof or terraces) you will have to claim compensation from your insurance company.

If the water infiltrations are caused by the neighbours, you can file the claim with your insurance company and they will contact the neighbours. If the neighbours do not allow the surveyor access to their property, you can make your claim in court.

Take into account that if the water penetrates the house through doors or windows that are not properly closed (or with defective seals) the insurance companies will not compensate for any damage nor will compensation be given if there are construction defects or where the building is not properly maintained.

How to proceed?
In the case of CCS claims, a special form has to be requested from your insurance company, an insurance payment receipt and the insurance policy have to be provided. The declaration will have to be done within seven days from the ascertainment of the damage, by sending the documents by fax to the local CCS office.

It is important to keep all the items that have been damaged or deteriorated until the arrival of the insurance company assessor. If you should have to throw any objects away before the assessor arrives, then you should document everything in an inventory and take photographs to prove their existence and the extent of damage.

The CCS assessor may take several days or even weeks to come and inspect the damage after receiving the claim. If you do not have clear evidence of the damaged objects then the compensation will be proportionately reduced. Remember that CCS covers vehicles, even if you only have 3rd-party insurance.

If you have to claim from your own insurance company the damage has to be reported within seven days from the ascertainment, and the same procedures have to be followed as for the CCS claim, ensuring that a proper inventory and photographic documentation of perished objects is included.
Very important: if the compensation payment is delayed beyond 40 days, you have the right to ask for interest for late payment (see Insurance Contract Act of 1980).

In many cases the amount the insurance company offers to pay is much lower than the claim; in this case it will be necessary to seek legal advice in order to file a claim in court. Your lawyer will be able to arrange for a report from a surveyor and take care of the necessary procedures for a successful claim in a legal process.

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Article 92.2.a) of the Andalusian statutes state that the municipal councils are responsible for urban discipline and are answerable to the Junta de Andalucía. The emphasis of these new regulations is placed on the restrictive part of the law, that is to say severe fines and demolition orders.

Article 27 establishes the requirements for inscribing your property in the land registry. You will need to have a habitation license from the Town Hall and a certificate for the completion of building works (fin de obra). These certificates will show that the work done on the property, whether it is an extension or the addition of a swimming pool etc., correspond to the plans that were originally submitted to the Town Hall. The end of works certificate is given when the architect presents a copy of the planning permission and the certificate, which has been endorsed by the college of architects, and these are approved. The completing of the new build has to be signed in deeds at the notary. The other requirement for the inscription in the land registry is to file a copy of the Building Book (Libro del Edificio). If properties are not registered with the land registry in their current form, then you will find that they are very hard to sell.

To be able to obtain water and electricity supplies to the property you will need to have the habitation license. While the building or restoration work is being done, the suppliers will normally provide a temporary contract until the building license expires.

The Decree 60/2010, of the 16th March regulates the procedures, amongst others, for suspending construction and the revision of licenses, constructions that do not have the relevant licenses, orders to return the property or land to its original state including demolition orders and reconstruction. The Town Hall can begin procedures for the violation of town planning and issue sanctions. The Registrars at the Land Registry must inform the Council responsible for town planning of applications for the inscription in the registry of properties which have licenses or those which do not need licenses, when they may be contrary to urban planning regulations or territorial regulations.

The infractions can be classified as: minor infractions, those where the suppliers of water and electricity, do not ask for licenses; more serious infractions where buildings are constructed without licenses or the transformation of land use which are contrary to town planning regulations; and very serious infractions include those of urban subdivisions on land which is not to be developed and those which do not have the necessary planning permission to be legalised at a later time. These specifically are where the land is classified as protected undeveloped land, coastal areas, parks, and listed buildings. The penalties for committing these kinds of violations can be found in Chapter III of Title VII of the Law 7/2002 of the 17th December, or in articles 207 and 208.3 of this Law. Unless the infringement is specifically stated in this said law, the town planning violations will be punished in the following manner: Minor offences can range from a fine of 600 euros to 2,999 euros; serious offences can range from a fine of 3,000 to 5,999 euros; and very serious offences can range from 6,000 to 120,000 euros. Complimentary regulations for sanctions can be found in article 216, 217 and 221 of the Law 7/2002 of the 17th December which can increase the sanction to the amount gained by the person at fault, as per Article 72.

The new regulations make a particular emphasis in the endorsement on plans from the college of architects that should verify that the plans conform to urban planning regulations. These are stipulated in article 6 of the regulations and they include the positioning of the building within the plot, where it is and how far it is from the boundaries and the distances between buildings. The land use, what kind of building it is, the height of the building and how much of the plot the building takes up. The kinds of documents that are subject to urban development control are those that include building, demolitions, and the division of properties; the endorsement is a stamp, which is put on plans that need municipal town planning licenses as per article 8 of the Regulations. If it is found that there are no serious town planning infractions, then the endorsement is stamped on the plans, conforming to article 14 of the urban disciplinary regulations, however if there are any and the architect refuses to correct his plans then the endorsement will not be given. The professional associations such as the college of architects will deny the endorsement when the plans do not contain the requisites in the corresponding regulations and they will contact the local authorities if they believe that any serious planning violations have been committed. The town-planning department will then take the relevant action for such infractions.

If you have a property in Andalucía, we recommend that you check that the description in the Land registry certificate (nota simple) coincides with the actual property; we often find that our clients have problems selling their properties due to not inscribing the reformations that they do or the swimming pools that they build. If in doubt contact your lawyer to discuss the matter.

www.velascolawyers.com

www.velascolawyers.com

First things to do
If the death occurs in hospital, the hospital administration will take care of the initial procedure. If the death occurs outside hospital, you should immediately call the Guardia Civil or the National Police. A Magistrate (Juez Forense) will have to come to authorize the removal of the body or to order an investigation, if he believes that there are suspicious circumstances surrounding the death.

If death was caused by a criminal act, there will be a full police investigation and this will inevitably delay the release of the body and the funeral ceremony. In either case, the doctor will issue a death certificate.

The first 48 hours
You should contact an undertaker (funeraría). Normally, in Spain the burial or the cremation will take place between 24 and 48 hours after death. If you need additional time for relatives and friends to come to Spain, this can be arranged at an additional cost. The undertaker will be able to assist you in most of the administrative procedures for either the ceremony or the repatriation.
Will and inheritance of Spanish assets
There are two possible situations:

1) If the deceased had a Spanish Will, the process should be relatively easy. All Wills in Spain are recorded in the Central Wills Registry in Madrid. You should contact a lawyer who will apply for a Certificado de Ultimas Voluntades, which shows whether there was a Will registered in Spain and a Certificado de Contrato de Seguros de Cobertura de Fallecimiento, which shows whether there were any insurance policies covering death. These have to be applied for by using special forms from the Ministry of Justice and a nominal fee has to be paid prior to sending the forms along with an original death certificate to the Ministry. The death certificate has to either be a Spanish or an International certificate, if not it has to be translated by an official translator and an apostille has to be attached.

2) If the deceased didn’t have a Spanish Will, the process to reclaim the inheritance could be potentially long and complicated, risking the loss of the Spanish assets, if things are not done in a timely manner. You should immediately contact a lawyer in Spain who will apply for the Certificado de Ultimas Voluntades. If the certificate is returned showing that there was no Will registered, then the process to determine the legal heirs will begin. This will lead to a declaración de herederos abintestato or declaration of intestate heirs.

Once either of the above has been completed, your lawyer will contact the notary to prepare the inheritance deeds (Escritura de aceptacion de Herencia). This document will have to be signed by all heirs or their legal representatives, stating that they accept the inheritance.

In order for the inheritance deeds to be correctly prepared you will need information regarding all assets, the deeds and last tax receipts for any property.

Fiscal matters
As from the moment of death, you have six months to:

Pay all Spanish inheritance taxes (these could be quite low if you are a Spanish fiscal resident). You cannot pay these taxes from the estate. However you can request a delay in payment or to pay in installments.

Inscribe the new owners of any property in the land registry.

Pay the municipal the capital gains tax.
The non-declaration of the inheritance within six months after the death could lead to high fines on top of the inheritance taxes.

Your lawyer will be able to assist and guide you through this painful but important process.

www.velascolawyers.com

(provided by: Velasco Lawyers

Several articles of the Residential Tenancies Act, the Civil Procedure Code and the horizontal property laws have been amended, and the keys of the reform are as follows:

* Previously a period of two months had to elapse between the time when the landlord demanded in an irrefutable manner (notarial or burofax) the payment of rental arrears and the time when he could file a complaint, this period has now been halved. The tenant can avoid eviction by paying all the rent owed.

* Article 437.3 of the LEC (Ley de Enjuiciamiento Civil or Civil Procedure Law) has changed in the sense that if the landlord agrees to waiver the tenant’s debts and costs, he may recover the property more quickly, but the tenant must agree to give up the possession of the property. In any case, the tenant has a minimum of one month to leave the property after he has been notified of the lawsuit.
Obviously, the landlord is giving up his rights for payment of any amounts due, but if the tenant is insolvent sometimes it is better to regain possession, as it will not be possible to enforce the ruling issued against the assets of the tenant if he does not have any.

* The ruling ordering the eviction will be sufficient to execute the eviction.

* The judicial process which is used is that of procedimiento verbal (oral proceedings) which are much faster.

* The new law also improves the conditions under which contracts may be terminated, for example where the landlord does not wish to extend the contract when he needs to use the property for himself, for his parents, his children, or even for his spouse in cases of divorce or the annulment of a marriage. In these cases the landlord/parents/children … have to start occupying the property within three months after the tenant had been evicted, otherwise the landlord could be liable to pay compensation for damages to the tenant and be obliged to allow him to return to the property.

* In the demand the landlord can request the eviction (lanzamiento or expulsion), if he does not request this at the time then he will have to follow the procedure when the sentence is passed. If the property is the main residence of the tenant he will have one month to leave the property unless the judge decides that there is a justifiable reason for him to remain and can agree to extend the deadline for another month.

If the defendant does not appear at the proceedings and/or does not attend the hearing, or even when the sentence was condemnatory but not picked up by the tenant in court the process will be longer.

* Regarding the accumulation of legal actions, the limit of 3,000 euros, which is fixed in the Article 438.3.3 of the Civil Procedure Law 1/2000 dated 7th January, is deleted in the case of a judicial procedure for eviction due to lack of payment, which means that apart from the amount that is being claimed, the landlords can claim jointly the rental and other amounts owed (electricity/water/community payments) using the procedimiento verbal.

This Act offers theoretically the possibility of fast eviction within a period of two weeks. In reality, due to the saturation of the courts at present, the process is now closer to 10 months.
Our advice to landlords is that when you come to writing up your rental contract you should always seek the advice of a reputable lawyer who has experience in these matters.

At this time of economical unrest, many people are trying to sell their second homes and in Spain (as in most places) the procedure is complicated. You should be aware of the legal considerations and tax issues to avoid complications later on. The best way to make sure that you have all your bases covered is by having a competent lawyer. One of the easiest ways to find out how much your property could be worth is asking your lawyer to find out from a valuation company. The certificates that you receive are especially practical for determining the price of properties not only for selling but also in divorce cases.
As the vendor you will have various costs to pay when you sell your property. These include the municipal capital gains or ‘plusvalia’. This is calculated by the Town Hall and is based on the increased value of the land since it last changed hands. Normally the vendor pays the estate agent, but this can vary depending on the agreement made by the buyer and vendor. The vendor has to pay his lawyers fees. You also have to pay Capital Gains Tax on the difference between the amount that you bought the property for and the amount that you are selling it for. This profit is adjusted depending on the time that you have owned the property.
Whether you are residents or not, the capital gains that you pay is 18% but non residents have to pay 3% directly to the tax office at the time of sale. The buyers retain (3%) from the sales price and pay the tax office by completing a form 211. You should keep in mind that your yearly non-resident’s tax has to be paid up to date. When the buyer and vendor have come to an agreement on the price of the sale, a private sales purchase contract is drawn up and a deposit of 10% is paid. Although there is also the possibility of signing an option to buy contract and paying amounts of less than 10%.
Another possibility is to sign a rental agreement with an option to buy, which is a common formula amongst our clients who have problems trying to get the financing to buy and for the vendors trying to find a buyer. If there is a mortgage on the property being sold, it has to be cancelled at the time of signing the sales purchase deeds, unless it is being taken over by the new owners. Most banks have a clause in their contracts saying how much has to be paid as a penalisation for early repayment and this is normally 1%.
Other costs that have to be paid are for the economic cancellation which is around 50 euros, registry certificate, and the notary and registry fees for the cancellation of the mortgage. These costs depend on the amount of the mortgage at the time of the cancellation and the registry where the mortgage is inscribed. There are no taxes to be paid for the cancellation of the mortgage but the form 600 has to be presented with the deeds at the land registry. If the money for the cancellation of the mortgage comes from a tax haven, then the notary has to be given a copy of the form DP2.