Property Law

When one reads “Property Law” it comes to mind purchases, leases, community of owners and even Town planning.

However, Property law is much more than that. It covers all matter related to ownership, possession, division of co-ownership, ius in re (later we will explain what they are), claims to developers and builders, consolidation and segregation of property, boundary marking, title deeds of completion and/or horizontal division, injunctions, etc.

In Ypama Abogados we have great experience in these matters since the family business of its founding partner is the real estate one.

In addition, we are legal advisors of developers, constructors and estate agencies, what makes us experts in the field.

Conveyancing.

On Internet you can find information on conveyancing and this encourage many people to carry on with purchases without professional advice, but nothing replaces the experience of a lawyer.

For example, on the page of the Notary of Irun, D. Jose Antonio Hebrero Hernandez there is an excellent guide on the subject, and we recommend reading it: www.tuguialegal.com. (You also have very interesting forms).

Information:

1 Purchasing a house.

1 º). – Rights and guarantees of the buyer as a Consumer.

2 °). – Cross-checks before signing of the deed of sale.

3 º). – Proceedings after the signing of the deed of sale.

4 °). – Defects detected in the home after purchase.

5 °). – Expenses involved in property sales.

2 Conveyancing taxes.

1 º). – Tax on the Increase of Value of Urban Land.

2 °). – Transfer Tax  (TPO).

3 º). – Value Added Tax (IVA).

3 The purchase price of a VPO higher than the legal one.

4 The right of first refusal of VPO in the Basque Country.

5 The down payments in the purchase of homes.

Purchasing Model Contracts for:

  • Sale of urban property with flat rate cash lump sum paid.
  • Sale of urban property with price per unit.
  • measurement cash lump sum paid.
  • Sale of urban property off plan by developer.
  • Sale of urban property completion by developer.
  • Sale with earnest money deposit.
  • Supply with deposit not being earnest money
But the guides provide information for the majority of cases. They do not include cases with special problems. Thus, in this guide does not say anything about doing a pre-check of the town planning compliance, which is essential if you buy on the Costa del Sol, as you can read I our  specialized section.

There are, also, two things that have to be said about models of contracts: The first thing is that the models are a starting point from which to make a good contract, but you have to “adjust” them to the special needs of each case. The second thing to bear in mind is that contracts are “a whole” and if you modify a clause, you will have to revise the rest of them to check that the contract remains consistent in its entirety.

A contract model is useful to give an idea about what needs to be discussed and what issues need to be negotiated among the parties, but the final contract should be draft personally by a lawyer.

For instance, did you know that the typical sentence in a contract stating “free of liens, charges and encumbrances” do not includes town planning debts (in other words, you can find later that you are responsible for expensive charges being claimed by the Town Hall)?

In Ypama Abogados we will advise you on this issue and others that are not in the guides you can find on internet.

Leases.

Again, about this issue you can also find great information on www.tuguialegal.com:

Information:

1 º). – Definitions and legal regulation.

2 °). – Lease length.

3 º). – Subrogation rights at the death of the tenant.

4 °). – Lease rent.

5 °). – Expenses, repairs and improvements.

6). – Form of contract and deposit.

7 º). – The right of first refusal.

8 °). – Lease termination.

9). – The assignment and subletting.

10 °). – Leasing and the sale of the property.

Leasing Model contracts:

  • Housing leases for less than five years:
    • Furnished accommodation, rental payment by bank transfer and rent increasing as from 6th year based on what is agreed.
    • Furnished accommodation, rental payment by bank transfer and increase of rent from 6th year based on what the law allows.
    • Furnished accommodation, rent paid in cash and rent increase based on what is agreed.
    • Furnished accommodation, rent in cash and rent increase based on what the law allows.
    • No furnished lease, rental payment by bank transfer and rent increase based on what is agreed.
  • Housing leases longer than five years:
    • Furnished accommodation, payment by bank transfer and rent increase based on what is agreed.
    • Furnished accommodation, payment by bank transfer and rent increase based on what the law allows.

Another trustful and excellent web page on leases is http://www.caballerogea.net/Sumario%20web.htm,  by D. Jose Alfredo Caballero Gea, Doctor in Law and Justice retired. On his page you can find models of leases` contracts for almost all circumstances.

At present, the subject about which law firms are consulted the most is how to claim a tenant who does not pay, or how to evict him if needed be. Many people have heard about “express eviction” (desahucio expres) and they wonder what this would mean.

Express Eviction is the result of the amendments made in 2009 to the Civil Procedure Act, which is the rule governing the court proceedings in civil matters.

The reform introduced innovations that were intended to “accelerate” the evictions. Among them we highlight the following:

  1. The eviction date can be set from the same moment of the lawsuit and no later than one month from the view.
  2. The tenant has a term of three days to apply for legal aid after being notified of the lawsuit. After that, he could not stop the procedure claiming to have no lawyer because he cannot afford it.
  3. Where the landlord notifies the tenant of the demand for payment but the latter does not receive the notification, the landlord may have the demand added to the Official Court Notice. This way, the tenant is deemed to have received notice without any further action by the landlord.
  4. If the defendant does not pay, does not oppose the claim, or does not show agreement within 10 days of receiving the Court notice, then the Court officer will issue decree ending the process and urging the claimant to enforce the court order, being sufficient the mere request.

All these amendments put an end to behaviours that had been routine practice in court and could delay the procedure for more than a year.

Having this information available on internet is quite interesting and it allows landlords and tenants to have a general knowledge about their obligations and rights; but it would never be as complete and accurate as the advice provided by an experienced lawyer such as Ypama Abogados.

Communities of owners.

In a Community, the buyer of a house or an apartment owns his own house or apartment outright – as the British would say, ‘freehold’ – and shares the use of the remaining areas as part of a community of owners – “common-hold”.  The owners would agree the works needed on the common areas and a budget for those works. They then become responsible for paying their share of those common expenses (community fees), as stipulated in their title.

Neighbourhood problems in the communities of owners are another issue that causes further consultations on the Internet and law firms.

Also in www.tuguialegal.com you can find much useful information and forms:

Information:

1º).- Definitions and legal regulation.

2º).- Title of incorporation (Master deed) and Bylaws (statutes).

3º).- Governing Bodies: Owners General Meeting, President and Administrator.

4º).- Meetings and resolutions.

5º).- Book of Minutes of the Board.

6º).- Duties of owners.

7º).- The Reserve Fund.

8º).- Liability for unpaid fees.

9º).- Activities forbidden.

10º).-Challenge of General Meetings Agreements.

11º).-Community fee.

12º).-The division of a freehold within the Community.

13º).- Refurbishment works by owner.

Leasing Model contracts:

  • Minutes of Meetings and notices:
    • Board`s minute general model.
    • Board`s minute authorizing the segregation of annexed property.
    • Ordinary General Owners Meeting Announcement.
    • Extraordinary General Owners Meeting Announcement.
    • Application for General Owners Meeting Announcement.
  • Certification of agreements
    • Literal Certification of Board of Owners` Agreement.
    • Certification stating that there are property`s unpaid fees.
    • Certification of being up to date in community fees payment.
    • Application for the Certification of being up to date in community fees payment.
  • Communications and notifications
    • Notice to the Community of new address for notifications.
    • Notice of change of ownership of the property.
    • Notice to the Community of beginning with refurbishment works in the freehold.
    • Notice to the Community of the need of urgent repairs.
    • Notice of publications of General Meeting resolutions in the Community board.
  • Representation to attend Meetings
    • Appointment of representative to attend Meetings
    • Appointment of representative in case of co-ownership of the freehold.
  • Prohibited Activities.
    • Request of the President for the cessation of prohibited activities
    • General Meeting Agreement to exercise cessation of forbidden activities injunction.

Or find more information on the webpage of the retired Justice http://www.caballerogea.net/Sumario%20web.htm. You can also download the booklet prepared by the Town Hall of Córdoba on http://www.consumo.ayuncordoba.es/secundarias/omic/folletos/PROPIEDAD_HORIZONTAL.pdf.

Again, this information is very interesting, but it does not take into account the specific circumstances in your community of owners. If an owner has closed its terrace, has he done it with “glass curtains”? Are already there in the community other enclosures? If the problem is an issue with noises, is it caused by a business or an individual? What time is it produced?, and so on.

Only direct consultation and personal advice can give you the proper solution to the doubts and conflicts between neighbours. In Ypama Abogados will listen to you attentively .

“Ius in re” or “real rights”.

As mentioned above, Property law is much more than conveyancing, leases and neighbourly relations.

Property law is about rules and regulations over property, being the above only some specific cases of legal relationships.

Ius in re is a complete and absolute dominion over a thing available against all persons and it is commonly known as “real rights”. It is opposed to “personal rights” (or ius ad rem), that is a right exercisable by one person over a particular article of property in virtue of a contract or obligation incurred by another person in respect to it and which is enforceable only against, or through, such other person.

There are several forms of a real right, the most important of which is the right of property. In addition, real rights include the right to use another’s property and extract income from it—the so-called usufruct; easements—for example, the right of passage through another person’s plot of land; the right of lien on movable or immovable property; emphyteusis, that is the right of engaging in agriculture on a plot of land belonging to another person. All these real rights may arise as a result of a contract concluded by the owner, or on the basis of a will, or a contract concluded by a previous owner of the property.

In the civil law of Great Britain and the USA all forms of a real right, with the exception of the right of lien, are regarded as different kinds of the right of property.

The elements that characterize the real rights are: they fall on an object and, as a result, the can be claimed against everyone; real rights are confirmed by their exercise, whilst personal rights will extinguish themselves with it (when you claim and collect your credit against a debtor, the credit will extinguish); real rights will extinguish when the object disappears; they can be registered in the Land Registry.

But the essential characteristic of real rights in Spain is that in order to acquire them you need to follow a certain procedure (such as the delivery of the thing in conveyancing).

These characteristics mean that any issue that has to do with real rights is better to be supervised by a lawyer. 

For instance, in cases of co-ownership – when something is owned by several people – if the object owned is indivisible (pro indiviso), in Spain it means that each co-owner owns the entire object and has the right to use it as a whole (each owner does not own a part of the thing). Therefore, you need to establish some rules to organize the use of the thing.

It is the typical situation when a house is bought by several persons. It is also the situation that is created when you purchase a house being marriage under the community property matrimonial regime.

To terminate the co-ownership there are only two ways, that one co-owner buys their part to the others, or that a third party purchase all. Neither marital separation nor divorce will extinguish co-ownership, unless it is specifically agreed and approved by a judge.

When the co-owners are at odds, then it is better to terminate the co-ownership. It can be done voluntarily before a notary public, or by means of a judicial auction; but given the characteristics of being a real right, it is best to always have the advice of a lawyer.

Another issue related to property rights are the “expedientes de dominio” (claiming the ownership of a land in court) or “Acta de notoriedad” (claiming the ownership of a land before a public Notary).

These procedures are steps to take when the real right of ownership of a property is not registered in the Land Registry.

When land which is unregistered is disposed of, whether by sale, gift, assent, mortgage or any other means, it has to be registered by the incoming owner (or where it is mortgaged, by the existing owner) and the applicant must prove to the land registry and/or the Court that he is legally entitled to be registered as owner of the land.

More topics related to real rights are (land consolidation) “agrupación de fincas” and (segregation of property) “segregacion de fincas”.

Land consolidation is a planned readjustment and rearrangement of estate properties and their ownership. It has always been regarded as an instrument or entry point for rural development, but it is also the way to legally group two different apartments or houses. It is a very common issue in community of owners, because it implies to change the Community incorporation deed.

Segregation of property is the subdivision of a property; it can be a plot or a house. It is also a common issue in community of owners because if the community does not approve it, the owner cannot divide his freehold.

In order to consolidate and segregate a freehold in a community of owners, the permission of the Community must be granted and it may require reaching a unanimous agreement in the General Meeting of Owners, which is not so easy sometimes to obtain. Under certain circumstances, the agreement can be reached by majority and this is much easier.

In addition to this approval, a licence from the Town Hall is also needed.

All these issues require a detailed study and preparation to be done by a professional. In Ypama Abogados we have experience in all of them. Come, tell us about your particular situation and we will give you the best advice.