Author: Francisco Delgado Montilla

ADVICES FOR OWNERS OF NON-REGISTERED HOMES IN THE LAND REGISTRY

Written by Francisco Delgado Montilla on 14 December, 2011. Posted in asesoramiento legal, assimilated out of ordination, developer, Featured, Headline, legal advice, New building declaration, out of ordination, property law, Property law, URBAN LAW. No Comments on ADVICES FOR OWNERS OF NON-REGISTERED HOMES IN THE LAND REGISTRY

New building declaration and Land Registry records

The possibility of registration in the Land Registry of constructions without building permits after four years of completion, is provided by a State regulation – Spanish Royal Decree Real Decreto 1093/1997 of 7th of July, Section 52 provides this possibility, as well as the following requirements for this registration: 1) proceedings of town planning discipline shall not appear in the Land Registry against the construction; 2) the time fixed by law shall have been elapsed in order to “tackle” this infraction through the administrative procedure and 3) certification of the year of completion of the construction.

Thanks to the above mentioned Section of the Royal Decree, thousands of constructions have been registered in the Land Registry, although they did not have the building permits or the constructions did not comply with the conditions of the building permits.

This Section has not been modified and is still in force, however some elements has been incorporated to increase the requirements demanded by the Land Registry offices and to “toughen” the requirements for the admission of this registration, as for example:

1) Amendment of Section 20.4 of the Spanish Land Law which refers to the declarations of new buildings and incorporates a new requirement for its registration in the Land Registry—the submission of a certificate from the city council stating the fuera de ordenación (out of ordination) condition for this construction.

2) As a result of the approval of the new regulation Reglamento de Disciplina Urbanística (town planning discipline regulation) by the Junta de Andalucía Regional Government in May 2010, pressure and control have been increased above these constructions located in non-developable (non-urbanizable) lands. The Junta de Andalucía have notified the Directorate General for Registries and Public Notaries, so that they demand new obligations for the registration of declarations of new buildings, as for example, the submission of a certificate from the city council, so that the Registry record the “fuera de ordenación” condition (out of ordination) or the “asimilado a fuera de ordination” condition (assimilated to out of ordination).

3) Some Land Registry offices have begun to demand the submission of this certificate from the city council as an essential requirement for the registration of the declarations of new buildings.

What do all these changes mean for owners who want to register their home?

In the event that in the future the Land Registry requires owners the submission of this certificate from the city council to register their home, swimming-pool, garage or any other construction in their property, these below may be the consequences:

1) Increase of the economic costs for the declaration of the new building, because some city councils are approving ordinances for the payment of fees for obtaining it, as they need financial resources; in some cases, these costs may range between EUR 2,000-5,000, depending on the square meters of the property.

2) As any other application to city councils, this procedure would be slow and may imply several months until obtaining the certificate; in case owners need to obtain the declaration of new building urgently because of a sale, this period of time may become an important handicap.

3) The fact of recording in the Land Registry the “fuera de ordenación” (out of ordination) condition or “asimilado a fuera de ordenación” (assimilated to out of ordination) condition on their property, implies the documentary evidence of some limitations, which may affect the sale price when transferring the property to a prospective buyer. It is also worth mentioning that the prospective buyer may demand a discount in a possible transaction regarding this fact.

To sum up, in the event that the Registry offices toughen in the future the requirements to register any construction in the Land Registry and the resulting increase of the costs and period of time for the procedure completion, we advise you to take advantage of the current situation and execute the Public Deed of Declaration of New Building of your home as soon as possible and submit it to the Land Registry to avoid any problem in the future.

Author: Francisco Delgado Montilla, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)

The Living Will Document

Written by Francisco Delgado Montilla on 21 September, 2011. Posted in advance directive, FAMILY LAW, Headline, living will. No Comments on The Living Will Document

Living will when losing mental capacity (f.e. by dementia)

A living will, also known as advance directive, consists of explaining how you wish to be cared for in the future if you lost mental capacity to decide for yourself. It includes your directives about the medical treatment to be applied in the future.

Warning: this type of document should not be mistaken for the will dealing with goods and assets issues; the living will is a decision to prevent future cruel medical treatments for terminally ill patients. It may be also applicable to patients suffering from a degenerative disease which may lead to their losing mental capacity, and therefore, their capacity to decide for themselves. It is also a valid instrument to provide directives in relation to donation of organs.

This document may be executed before a Notary Public or before three witnesses. Two of these witnesses shall not be relative within the second level of consanguinity neither share any kind of assets with the persons declaring their advance directives.

It is recommended that the living will includes the signatory’s values and reasons and the name of a representative who understands the signatory’s wishes and is willing to struggle to meet his or her directives. It is also recommendable the distribution of copies of this document, including to the lawyer if possible.

The living will may be cancelled at any time if it is destroyed. In this case, copies shall be also recovered; otherwise, a declaration shall be made before witnesses expressing the change of mind in writing or orally.

The issue of living wills: this type of document reflect the testator’s wish to die in dignity, avoiding medical treatments leading to artificial maintenance of life in a persistent vegetative state without hope, or considering these expectations, by application of solutions directly leading to reach an end. This issue is a highly delicate matter, because of the legal and moral consequences which it implies:

1.- This will shall never include provisions leading to obtain illegal results; however, as it is executed in consideration of death, it may refer to acts which might be legal in that moment, although it may be illegal at the moment of the execution.

2.- The Notary Public shall not try to replace the testator’s moral criteria with his or her own ones, when the grantor tries to decide about his or her own death; that is, the most pathetic sign of the constitutional right to confidentiality.

A State law provides the patient’s right to establish a living will, but the implementation of this right is delegated to regional governments, as well as the creation of registries. Several regional governments have set forth regulations about this issue; the Andalusian act Ley 5/2003 of 9^th October, about the declaration of advance living will deals with this issue in Andalusia.
Author: Francisco Delgado Montilla, C&D Solicitors (lawyers)

CURB ON “FLOOR CLAUSES” IN MORTGAGE LOANS

Written by Francisco Delgado Montilla on 1 June, 2011. Posted in derecho hipotecario, euribor, Headline, hipoteca, Inmobiliario, intereses, mortgages, Property law, property law. No Comments on CURB ON “FLOOR CLAUSES” IN MORTGAGE LOANS

More lifetime mortgages (reverse mortgage) Spain

Lifetime Mortgage (reverse mortgage)

According to the report published by “Optima Mayores” Advisers, the demand of lifetime mortgages has increased to 17% (19,900 applications) until April in comparison to last year same four-month period.

This increase in the lifetime mortgage demand matches the senior citizens’ growing needs to obtain an income and the better knowledge of this product in Spain, where it was first launched in 2004. Spanish Senior citizens’ pensions are at 40% below the European average, what indicates their necessity to face their retirement financing with a peace of mind. Regarding British senior citizens, the Euro and Pound Sterling exchange rate fluctuation has also reduce their earnings.

What is a lifetime mortgage?

A lifetime mortgage is a financial product that consists of a loan for seniors aged 65 or older or dependents, secured against the home where they live. They retain ownership of their home until they die, when their inheritors shall repay the loan or sale the property.

The maximum loan to be granted is based on a percentage of the property appraisal value. Then, the homeowner may receive a regular fixed amount or a lump sum payment.

Who qualifies for a lifetime mortgage?

The following requirements shall be fulfilled to qualify for a lifetime mortgage:

– The applicant or the selected beneficiaries shall be aged 65 or older; or otherwise, they shall be individuals with high to severe dependency levels.

– The borrower shall receive the money from the loan in regular fixed amounts or a lump sum payment (incomes).

– Only the creditor (banks or savings banks) is entitled to demand the repayment of the debt and the mortgage foreclosure when the borrower dies, or if provided in the agreement conditions—when the last of the borrower’s beneficiaries die. The mortgaged property shall be valued and insured according to the Spanish legislation in force.

These are the official requirements to be protected by the Spanish legislation regulating this type of loans and to be entitled to the tax advantages established by this legislation.

Clients and banks may freely agree about lifetime mortgage transactions which include a varied set of terms and conditions; consequently, a professional advisor’s counselling in this proceeding is a determining factor for the good end of the agreement to enjoy the best advantages and conditions available.

Spanish legislation regulating lifetime mortgages

In Spain, this type of mortgages are regulated by Law 41 of 7^th of December 2007—Mortgage Market Reform legislation. This Law provides that the lending institution is obliged to offer an independent advice to individuals, so that the consumers’ rights are preserved and the economic and financial conditions suit their needs. This counselling and negotiation tasks are normally provided by specialised lawyers and companies offering this service to private customers.

If you are thinking about a mortgage which best suits your economic needs, take your time and ask for advice to specialised lawyers. They will ensure the best deal for you.

Author: Francisco Delgado Montilla, C&D Solicitors (lawyers)

ANNUAL TAXES FOR NON-RESIDENTS WHEN OWNING A PROPERTY IN SPAIN

Written by Francisco Delgado Montilla on 19 November, 2010. Posted in Featured, Headline, Income, Inmobiliario, NON RESIDENT, property law, taxes. No Comments on ANNUAL TAXES FOR NON-RESIDENTS WHEN OWNING A PROPERTY IN SPAIN

Inheritance tax Spain — solicitor english speaking

All property owners in Spain are liable for some taxes every year. Even if you are (tax) non-resident, when owning a property, you must fulfill your fiscal obligations here in Spain by submitting your yearly income tax declaration for non-residents (IRNR).

In the event you are non-resident in Spain, the reason why you are subject to this tax is because your Spanish property is not your principal residence. Non-residents remain subject to the tax because, by definition, Spain is not their principal residence, so that it is necessary to calculate your property owners’ imputed income tax on your second and further homes you may have.

Be aware of tax year in Spain ends by the 31^st of December, so that your income tax declaration should be submitted to Tax Authorities before this date, by filling out the application form number 210.

The calculation of the IRNR will depend on several factors, among others, the type of property (urban or rustic), when the rated value of the property for tax purposes was raised, price or valuation of the property, etc.

If you are in this situation and you still have not submitted your Property owners’ imputed income tax, you have one month approx. to be up-to-date with Tax Authorities.

Author: Francisco Delgado Montilla, C&D Solicitors (lawyers)
Torrox-Costa (Malaga/Costa del Sol/Andalucia)