Our philosophy has always been that customers are fully informed and that the issues should be treated with clarity and transparency. We are convinced that only good knowledge allows us to make good decisions.
There are so many questions that arise around real estate and 67 years of expertise entail an accumulation of information, data, “wisdom” that we want to share with our customers, friends and collaborators.
We hope and wish that it is useful and interesting.
Joana and Immaculada Amat
The placement of a sign implies the alteration of a common element: the facade. It should therefore have Community authorization. However, current horizontal division deed usually foresee this possibility (subject to aesthetic measures) of installing signs without authorization, in this case the stipulations of the writing prevail. Two details in this regard, the decision of the Board should be taken by majority, and it may be of interest to know that the lintel of your door is not understood to be part of the facade and does not affect, for this reason, the rule of unanimity. We advise you, however, to request permission from the community, if only for courtesy.
Finally, and from the most practical point of view, we must have in mind that most of the municipalities (if not all), request the corresponding permission and in order to obtain it must be attached the community permission or the deed that authorizes the placement.
When in the statutes or in a deed of new work and division in horizontal property it is foreseen the possibility of being able to subdivide a premises, evidently it is thought that the two resulting premises may have this condition and to have the status of independent premises it is necessary that both premises can be accessed directly from the public road.
This issue has provoked many judicial procedures, since in many cases the communities have refused to open a new door to the street from the segregated premises. What does the jurisprudence say?
There is a judgment of the Audiencia of Barcelona dated May 3, 2005, which, using common sense, expressly authorizes the opening of a door from the premises to public roads, since otherwise it could not be considered an independent building and would not make sense the authorization provided in the statutes. In this sense, we also find different judgments in recent years.
On the other hand, in most of the sentences before 2000, the interpretation is very restrictive.
You may know that the quorum required for the installation agreement is three-fifths of owners and fees. Your vote must be negative, and in this case, you can refrain from participating in the cost of the lift, but until you pay the amount that corresponds to you plus the interest you can not use it.
Regarding your concern not to hinder the installation of the lift due to the fact that there are elderly people, we must inform you that in the case that your refusal implies not obtaining the majority of 4/5 parts, the jurisprudence has been comparing the installation of an elevator to the disappearance of an architectural barrier if there are people over 70 years old among the neighbours and, in this case, the disappearance of the architectural barrier, the quorum required is a simple majority.
Regardless of what the community has stipulated (whether in the deed, or in statutory regulations), we believe that there is an even more important factor that must be taken into account: safety for everyone – as you know the risk of fire is high in a parking lot, that is why the regulations are strict in the case of keeping away from the vehicles any material that can help spread the fire. Another important factor that must be taken into account and that helps in complying with fire regulations is that insurers can refuse, in the unfortunate event that an accident occurs, to take charge of the damages, since all the Companies establish, in their clauses, very restrictive rules in this matter.
Indeed, the coexistence and recently the so famous civism are values for which communities must make more efforts. In this sense, posting a note or warning is a good choice but it may not be enough to create awareness for a responsible and peaceful use of community elements. Our advice is to establish a statute of rules of the community that must be approved unanimously and, as far as possible, raised to public and registered in the registry in order to provide legal security. This formalization will only display its practical effects if efforts are made to inform everyone and especially the new owners. We are sure that your administrator will do so.
The reasons for not passing the presidential turn are not established in the Horizontal Property Law and rarely are the Constituent Title. That leaves us two ways: the free decision of the Owners’ Board, that is, you can propose it in the meeting and the neighbors can accept (or not) the reasons. In the event that the Board denies the possibility of skipping the presidential turn, it may also request, within one month of the holding of the meeting, judicial assistance. In this sense, we must say that in general terms judges usually exempt this obligation for health reasons (among other cases). In this case, the certificate will be mandatory. If you would like more information about the judicial procedure that should follow, please do not hesitate to consult us again, but for your peace of mind, we have to say that a good administrator usually frees the president from day-to-day tasks, since he assumes all the responsibilities in full, except for representation in front of third parties.
Even if there is an agreement adopted unanimously by the owners, in which community rules are approved, which include the prohibition of having dogs on the flats, if the agreement is not notarized and later registered in the Land Registry it is not enforceable to third-party owners – and even less to non-owner third parties – unaware of the decision and its consequences. Even if the agreement is registered in the Registry, a tenant would not be obliged (except in the case that it was stipulated in his rental contract).
We believe that in these cases the most important thing, more than strict compliance with the rules, is the guarantee of coexistence, with a flexible attitude by both parties, community and tenants.
Dear reader, in the first place it would be convenient to examine the constitutive title, it will mention the regime of contribution and expenses that corresponds to it. In case it does not say anything, the Horizontal Property Law provides that the premises participate in the common and necessary expenses of the community. Therefore, you must continue to pay community expenses according to your coefficient.
You should look at the deed of division in horizontal regime if your local participates in the expenses of the lobby and staircase, such as cleaning, electricity and water consumption, repairs to the entrance door, etc. If affirmative, you will be entitled. If you do not participate in these expenses, due to the fact that you are a totally independent establishment, you can not use the lobby and, consequently, you can not demand a mailbox.
Dear reader, as an innovation and improvement of the quality of life the air conditioning has a quite favourable treatment. In the first place, you must ask the community for permission, which by simple majority should inform you of the most suitable place for the installation. It must be made clear that they can not be prevented, they can only demand that they place it in the place chosen by the community.
If yours is the first request for authorization, it would be very good if the community took advantage to choose a suitable place for the performance of the machines as well as for the aesthetics or noise, and that has enough space to service owners.
You only have to communicate the change of use if in the constitutive title (the horizontal division) it is expressly prohibited, and in the case that the change of use modifies the coefficients with respect to the common parts. If it turns out that it is not allowed, it would need the unanimous approval of the Homeowners Board.
We want to take this opportunity to make two additional comments:
Our first answer is YES, you must pay all of the community expenses, even if you do not use most of the common elements. Anyway, this answer has some nuances:
The biggest problems usually occur when the staircase costs are not properly maintenance such as, for example, adapting the stairway-lobby to the regulations on the elimination of architectural barriers. In this case, we understand that the premises must contribute to the expenses according to their coefficient.
This question is asked more and more frequently.
According to the current Catalan regulation, which develops the basic regulations of buildings CPI / 96, which deals with the conditions for fire protection, it must be affirmed that it is not possible to close the exit door to the outside of the building.
The regulations require that the doors located in the evacuation routes be “easily operable”, which is why it is generally prevented that the doors that must be used in case of evacuation while the buildings are occupied can be locked by the side from which evacuation is planned (interior to exterior). Case of course of application to the exit door to the exterior of the residential buildings.
Effectively and in accordance with the ELECTRICAL REGULATION FOR LOW TENSION REBT-2002 approved by Royal Decree 842/2002.
This legislation creates new obligations and periodic responsibilities to the communities of owners and to the administrators or presidents who represent them, with regard to the good conservation of the electrical installations and the maintenance of the safety measures of the same.
A deadline that ends in September 2008 (extendable in the regularization files in progress) is granted to proceed with the first compulsory revision and from that moment, it will proceed (every 5 or 10 years) depending on the power and characteristics from the team to a mandatory periodic review.
We consider that it is undoubtedly a very timely measure. Of all the bad state is known in which they find many facilities and the nonexistence of a maintenance culture in our country.
But when it comes to putting it into practice, it is a laborious and complex process, since in the first place an important bureaucratic task must be carried out, and in the second place it will require the intervention of engineers, authorized installers and collaborating companies of the administration that must emit – the appropriate certifications. As you can guess the coordination of all this is not easy.
Therefore, we recommend two things:
We can not answer without before trying to clarify different aspects mentioned in your question. In the first place, different kind of “problems” must be distinguished: a bad finish is not the same as a construction defect, nor is the malfunctioning of a door, each of which is subject to different terms of responsibility and / or guarantee. Consequently it has a different form and time to claim.
That said, what can be stated is that the maximum, not to say sole responsibility of the administrator is to safeguard the possibility of the eventual exercise of the actions that you as owners must decide to undertake or not. In this sense, our experience indicates that it is essential to advise a constant maintenance work and from the beginning 8 to be able to make effective and preserve the guarantees that exist) and advise in severe cases the preparation of an expert opinion that includes an economic valuation with views to an eventual reparation and / or legal claim.
For your peace of mind I want to inform you that the courts accept as a way to paralyze the prescription of the action against the promoter for defects and / or constructive defects the most varied forms of complaint (fax, bureaufax, emails etc.).
Remember that in this as in any other decision, sovereignty resides with the Community Board.
Yes, without a doubt. The community of owners must guarantee the safety of their workers in all aspects related to the development of their work, in compliance with the Law on Prevention of Labor Risks (LPRL) and the regulations developed by it, applying the measures that relevant, such as training courses, appropriate equipment, etc.
A specialized company must be in charge of preparing a risk assessment, identifying the workplace, the existing risks, the list of workers, the result of the evaluation and the preventive measures to be adopted, methods and procedures. In addition, training will be provided in the minimum knowledge necessary for the development of prevention activities. Consequently, before the start of any task to be carried out by a worker hired by the Community, the contracted companies must be given an assessment of the risks inherent in the building and its facilities.
If you have the figure of the administrator, do not worry, it is one of the tasks that most professionals usually assume, if not the president should assume the responsibility of fulfilling these obligations.
It happens often, someone falls into the building and claims responsibility to the Community, probably because of this claim culture that is being implanted.
We must say that in this case the Jurisprudence is very unanimous when it comes to determining that there is no responsibility of the community if the building is in perfect conditions of maintenance.
It would be different if there were any deficiency of maintenance that could cause an accident, for example a rung in poor condition, a poorly lit area, a raised tile and many other things that can cause accidents in a building.
In this last case, the community would obviously be responsible and the insurance company should face the corresponding expenses and indemnities.
The charge is mandatory and free, although the board may take into consideration the allegations for reasons of reasoned excuse. It is a one-person function, the duration is one year which is understood to be extended until the ordinary meeting following the period for which it was appointed.
The functions are to convene and preside over the meetings of the owners’ board representing the judicial and extrajudicial community, raising the agreements to public if necessary, ensuring the good conservation and proper functioning of the elements and common services and ensuring the fulfillment of the duties of the owners of the holders of the secretary and the administration.
Anyway, if you have an administrator, only the judicial representation is non-delegable, since the rest of the functions are assumed de facto by the administrator on your behalf.
The fight against delinquency is one of the main problems that the president of the Community and its administrator must face.
The law has created a series of measures such as the creation of a reserve fund, the real effect of the property transferred to the payment of the general expenses corresponding to the annuity in which the acquisition takes place, the establishment of an agile and effective procedure of judicial execution for the collection of the debts with the community. It is an obligation of each owner to contribute in accordance with his share of participation to the general expenses, for the adequate maintenance of the property, his services, burdens and responsibilities.
Otherwise the community may demand it judicially. The judicial procedure once filed and admitted for processing, will consist of a rapid development procedure, so that the payment is made to the plaintiff or alleging what is appropriate in writing and opposition.
The owner who has outstanding and unpaid expenses pending, will be deprived of his right to vote, his presence and his quota will not be computed effects of reaching the majorities required by the Law.
Debts with the community of owners are considered as a preferential credit or always or always arising from the refusal to pay the general expenses of the contributions to the reserve fund or spills for necessary repairs.
If the flat is sold, the transmitters in the deed of sale must declare that they are up to date with payment by presenting a debt certificate, in which the approved and undistributed expense must be included.
In the event that they are not paid, the new owner will be obliged to pay the general expenses pending throughout the year in which the property was acquired, as well as all debts due corresponding to the year prior to their transmission, the seller can not be excused from the pending payments but the referred certificate.
Owners who intend to carry out works on privative elements must inform the President or the community administrator in advance. If the work involves the alteration of any common element must be approved by agreement that means a majority of 4/5. It is important to know that the new law establishes a presumption of consent if the existence of works considered, does not diminish the solidity of the building or involve the occupation of common elements in a well-known manner and the community has not shown opposition in the term of 6 years since they finished. Art. 553.36
The existence of Municipal Ordinances must not be forgotten, since in many cases these types of enclosures are explicitly prohibited.
The Community can demand the replacement of the common elements altered without their consent to the original state by contacting the corresponding department of the City Council of its population, which will initiate a sanctioning process that may even end in a contentious-administrative proceeding.
Despite legal protection, in most cases the solution is to hire a lawyer and it takes time.
The administrator advises that this decision is made once a technical architect has made a report on the state of the facade, the main purpose of hiring a professional is to avoid the large number of wrong decisions that are made and for this reason is necessary develop a basic and logical outline to follow in the rehabilitation process as a way of working. In this specific case it is necessary to eliminate the danger urgently, consult a technician if it is necessary to protect the façade and communicate it in advance to the town hall to record the actions carried out and which the Community plans to carry out.
Once the decision to start the works has been made and the rehabilitation project has been carried out by the technician with the choice of concrete solutions, whether partial or total, it is necessary to contact several companies to request several estimates always in agreement with the Community and follow the technician’s criteria when choosing the company that will execute the works. The architect will provide the instructions on what should be done, how to do it and approximate cost, and will finally assume the direction of the works to control and certify the set of works.
It is important to comment on the responsibilities that the community acquires in the subject of safety during the work, it should be noted that in most cases it is required to hire a coordinator in the field of Health and Safety during his tenure, which is usually assumed by the employees themselves..
The hiring of a technician to draft an executive project and facultative direction to carry out the control of the works in process besides being obligatory by law in the majority of cases entails undoubted advantages for the community, although in principle it may seem that it is an expense that could be saved, at the end of the works its profitability will be more than evident.
All buildings should conduct periodic reviews and comply with a schedule of regular inspections at the time analyzed aspects such as roofs, structure, facades, water network and sanitation among others, this means a guarantee that their buildings are in sufficient safety state within of the guaranteed period.
Precisely to be able to fulfill with the exposed thing in the previous paragraphs Amat. created a community maintenance department that coordinates all the relations between industrial technicians and the Community of Owners.
This is one of the most widespread fears that owners have when they consider the possibility of renting a home.
What does the Law foresee to avoid this possibility?
The Law of Leases only provides for the possibility that the lease contract may be terminated for the performance of damages when these are done intentionally and voluntarily, but not if they occur by chance or by negligence.
Our experience after 55 years managing rentals of homes is that intentionally and voluntarily never occur or almost never. Only on one occasion have we met with a performance of this kind. Negligence or lack of care if there is damage to the flats, although in many less than what the vox populi explains.
How can we avoid it or at least minimize the cost?
What Amat does To resolve this issue is to sign a document very careful of the state of the house at the time of granting the lease, at the same time that the tenant is requested a monetary amount, in cash or bank guarantee, as an additional guarantee. At the moment, when the contract is terminated, the document serves as a reference to analyze the state in which the house is left. Only the tenant can be held liable for any damage not attributable to normal use of the home. The cost, once requested the corresponding budgets, may be deducted from the additional guarantee.
Reading like this seems a complicated process, but it is not, in any case a little laborious, although it is possible to simplify it remarkably with some models of painstaking documents. What we can say is that the result is always satisfactory and guarantees the owners receive the property in an appropriate state.
The law speaks of minimum time therefore it is perfectly legal to extend this time, in fact we in these moments of so much uncertainty seems strictly necessary, and well, so by the owner that for him to be profitable the lease the most important thing is to have the building rented as long as possible as by the tenant who needs and claims stability.
There are tenants who are already well three years that is the minimum period but if we put ourselves in the place of a family with children looking for rent apartment and we think that this implies new schools, new friends for the children etc, it will be good to be able to offer more years, the five that already had all assumed or more if possible.
Everything will depend on how we approach the rest of the contract conditions, the rent and above all the future increases will be decisive at the moment of thinking about a longer contract.
If you really find a good balance between time and price we will have the goal achieved.
In the first place we have to say that the answer to this question is useful both in the case that you want to rent, and in the case of the owner who wants to set up this office.
And at the same time, reversing the situation, the same answer is also valid in the case that we have a place that wants to be transformed into a house, to rent it or to live the owner.
The question is whether to change the use, which until now has had, is necessary the permission of the community of owners and, if so, what will be the quorum to be applied.
In the past it was expected that if the title, that is, the deed, described the flat as a home, the change of use required unanimous vote of the community.
But this situation has changed radically and, according to today’s interpretation, the permission of the community of owners is not even necessary. Only it would be it in the case that expressly in the statutes of the community prohibited the change of use. If this were the case, and keeping in mind that the bylaws are registered in the Property Registry, unanimity of the vote will be necessary.
There is a resolution of the General Directorate of Registries and Notaries, dated March 23, 1998, which states that, although the writing of new work and division into horizontal property establishes that a certain department is housing, the right of the property is of an absolute nature and, therefore, is not to be understood as a prohibition to change the uses unless they are not validly prohibited in the statutes and legally registered in the Property Registry.
Even so, this change of use must be totally subject to the urban regulations in force in each locality, and it is, therefore, the municipalities that have the final say on the subject.
Nos planteamos muchas veces este tipo de pregunta, porqué realmente las decisiones a tomar no son fáciles.
Se trata de saber, con conocimiento de causa, sí es posible y rentable poner de nuevo en valor su inmueble, o por contra, si su situación es muy pésima, como reconvertir este patrimonio en nuevos inmuebles.
We often ask this type of question because decisions to make are not easy.
It is about knowing if it is possible and profitable to put your property back in value or if your situation is very bad, it is not worth such as reconverting this heritage in new real estate.
The goal but, in most cases, is to save and improve the building completely.
It is, surely, one of the most responsible and creative tasks of our profession, since being able to participate jointly with the property in giving a change of three hundred and sixty degrees, in many cases, of a patrimony, is a privilege and, Without any doubt, it is towards where the exercise of the profession of administrator of farms is directed and where its maximum sense is found.
What we do, in the first place, is an initial visit to the building to make a first assessment of the state of the property and demand the inspection of a technician, if deemed appropriate, in order to make an analysis of the structure and the finishes of the building.
Although it does not have a direct implication linked to the rehabilitation action, we carry out a study of the existing rental contracts. Usually, we find that on the farms there are tenants with old contracts and others with contracts made with the new Law of Urban Leases.
When we have a clear and total vision of the situation we study the possible alternatives, making a proposal to five years of how we see, under our extensive experience of administrators, how to reconvert this heritage into a healthy, attractive and profitable offer.
Depending on the real state of the property, partial or total renovations of the common elements can be made, housing reforms that are becoming available, adequacy of housing, accepting possible limitations, new forms of life, etc.
We must always take into consideration that all those works that are to be carried out for the essential conservation of the building can be passed on to the tenants who have contracts
from the previous LAU (prior to January 1, 1995), based on 12% per year, figure, which alone, already makes investment attractive.
In any case, whether they are conservation works or improvements, nowadays, with the attractive financing systems offered by the financial market, there are many good opportunities to carry out these projects for five years. Amat. It has subscribed alliances with financial entities to be able to face this type of works and they are of a substantial help when making decisions.
For this reason, we encourage our clients and any person with an aging heritage to start up in order to renew it and make its heritage a truly safe value.
If at the last moment, we observe that the actions to be carried out are of such a level and seriousness that their amortization is very long term, or it will involve some type of risk, especially of third parties, whether they are tenants, pedestrians, etc., we will analyze the possibility of selling this heritage and buying new properties that start a new cycle with guarantees of profitability and maintenance.
In terms of insurance, any precaution is small, at least this is our way of thinking and working.
We are very aware that in our country there is little insurance culture and we are very far from the rest of Europe. But that is not the reason why we must stop insisting on the subject, on the contrary, we must help create a better culture on the subject in question.
It is part of our professional responsibility to ensure that the assets entrusted to us to administer have all the guarantees in this regard.
That is why we require the tenant as part of the negotiation of the contract that has duly secured civil liability at least.
Everything and that, if any accident attributable to the tenant will happen, he would be responsible, we would have the problem if he had left the house, and will leave a judicial process in progress. All these inconveniences, from this moment on are for the owner: requirements or possible subsidiary responsibilities.
A problem that can be avoided if at the time of specifying the rent has had the foresight to think about this issue.
The best thing in these cases is to sign a bailment contract -preferably in a notary- under which the owner of a building transfers its use to the assignee and, in exchange, the latter is obliged to keep the building in perfect conditions and return it to the owner at the agreed time. By assignment, the property will not charge any amount during the term of the contract, the duration of which can be agreed freely. If no term is expressly or implicitly agreed, the owner may request the transferee to return possession of the property at any time.
In addition, the transferee is obliged to take charge of the expenses originated by the habitual use of the building and its maintenance.
If the contract has been signed in a notary it will have a very important effect in the Treasury and that is one proof to prove that the property transferred does not generate returns on the capital that must be declared in the Tax of the Income of the Physical Persons (something that would give rise, consequently, to an increase in the taxation for this tax). This does not prevent the imputation of real estate income, which represent a maximum of 2% of the land value.
The fact that you own a home has nothing to do with whether a contract with VAT will be finally made or not.
The one that will mark the obligation to apply VAT will be the type of tenant of the property.
If the tenant is a physical person who rents the villa to use it exclusively as a home, the Law establishes that VAT must not be applied to the tenant and the tenant only has to pay the rent of the house.
If this same house is rented to a company, so that one of the employees resides in a habitual and permanent way, Law 37/1992 establishes that the VAT tax must be applied, which at the moment is 21%, given that in order to be exempt from VAT, used as a home must be made necessary and directly by the tenant.
Finally, it must be borne in mind that if the lessee is a legal entity, for purposes of the IRPF, the reduction of 60% on the net income generated will not be applicable since, independently of the subsequent use of the home by this legal entity, does not constitute the dwelling of the lessee, so it must be understood that it is a lease other than housing, not satisfying the leased property the permanent housing needs of the tenant.
Our opinion but is not very favorable at least at the moment the approach made by the law, we see more disadvantages than advantages, we think only a good alternative in those cases that the property has no resources, or how to get it and before leaving an apartment closed it is much better to opt for this alternative.
The difficulties are the following:
a) You yourself have explained that they will do the flat to your liking, but our advice is that you give your approval to the project, because you could find solutions that do not fit the usual demands of the market and therefore with a few works done when you leave the tenant will cost a lot to fit with new tenants.
b) The degree of trust with the person doing the work must be high, both the tenant and his builder, it would not be the first or the last time we met with good projects but very poorly executed, again we would recommend his personal supervision .
c) We have not clarified this new law as this solution will compute fiscally, whether for an estimated rental value or for the value of the invoices presented etc. Both the part of the income not obtained monetarily and the part of the investment made by a person who is not the owner of the home
Today it is perfectly possible that you agree with the owner that the rent does not have the increase in the CPI, but remember that any agreement you make must be duly registered in the contract that is formalized, because with this you could have some fright, since the law tells us in the case of increments that if any type of increment is not contemplated by default, the CPI will be applied, clear gifts that we must record the will not to apply any type of increase, the fact of not putting anything precisely would lead to having the IPC automatically, it is essential that a good contract is made and nothing is left to chance, since the interpretation of the law can often be a little confusing.
The Law provides that in the case of the owner’s death, a subrogation for a period of 2 years, in the case of persons over 25 years, which is the case.
The confusion is given by the fact that the Law provided, in the case of people over 65 years, that they could have the right to subrogation until his death, but this assumption was only planned for the first 10 years of duration of the Law, that is to say, that ended definitively on December 31, 2004.
Taking into account only the only possibility that exists at this time, and considering that death is an unpredictable event, the legislator, with much success, gives a prudential time of two years for the surrogate to find a new home. It must be known that the act of subrogation is never automatic and that the Law gives exactly three months to show the owner the will to avail himself of the subrogation. After this period if the demonstration has not been made, as specified by the Law, the rental contract is definitively extinguished.
Your question does not tell us the date of the contract, only it was many years ago.
Since the Law, precisely, treats in a different ways contracts before January 1, 1995 of the subsequent ones to this date, corresponding to the enforcement of the new Law of urban leases, our answer will refer to the two suppositions .
Contracts prior to the new Law.
Regardless of when they are made, they do not change their situation. That is to say, the contract is not rescinded unless the owner, who is appointed until the death of the usufructuary (naked property) can demonstrate that the contract had been made damaging their interests very clearly. An example could be the contract, which for whatever reason, would have been formalized at a price below the market price at the time of signing.
Contracts signed with date subsequent to the validity of the new Law.
The contracts signed by the usufructuary are resolved when the right of the leased usufructuary disappears, whether due to death or termination of the usufruct.
That is why we advise, especially in the case of a long-term contract, that the contract be signed by the usufructuary, and give the approval that is named bare property or owner.
We understand that it refers to an old apartment and an old contract, of which in colloquial terms we say “indefinite contract”.
The Law neither now nor never allows a tenant to leave his home. Specifically an abandonment of more than 6 consecutive months, which can be proved, entitles the owner to the resolution of the rental contract.
There is an exception, and it is because of the tenant’s proven illness that it forces him to be months away from his home.
Even so, the last sentences allow the rental contract to be rescinded, in case the possibility of return of the tenant is impossible, as would be the case of people with Alzheimer’s disease, or of a similar illness, which are considered by the judges, situations without return.
The case that you expose is, unfortunately, very habitual, because the rents are very low and the tenant tries to turn the apartment into his second residence. But precisely the Law makes it very clear that a contract for the rental of housing is as long as it is the habitual and permanent residence of the tenant.
In the event that one wishes to act against a situation such as this one, an investigation of the circumstances should be started, evidence of the abandonment should be gathered, and where the tenant usually resides, and then proceed through the courts.
In Amat, in cases like this, we are very expeditious and act with all the firmness that the Law allows us, since in the end what these people do is a clear abuse, damaging the owners with rents below the price. market and at the same time potential new tenants, illegally occupying a home.
Contrary to the opinion, sometimes widespread, that the tenants can not do any kind of works to the rented property, the Law and especially the courts have a different criteria.
The Law of Leases provides that only the owner must be notified of the necessary works to adapt the home to the situation of the disabled: of him, his wife or one of his family. It seems, therefore, that any other type of work will require a written authorization of the owner.
In reality, judges only tend to estimate that it will be a cause of contractual termination, the works without authorization that modify the configuration of the house, the accessories of the same or that cause a decrease in the stability or security of the same and they are much more tolerant with the rest of works.
If a co-owner wishes to buy the part of the other, and especially in the case of reference, the tenant has no preferential right to purchase for two fundamental reasons:
Because in this specific case we are talking about being a tenant of a flat that is part of a property that constitutes a single registry entity, that is, that is not divided into horizontal property.
Because the owner of an undivided one has respect to the rest of the co-ownership, a right of preferential acquisition that is superior to any right that corresponded to the lessee.
It must be made clear that, because the property is consolidated in one hand, it does not imply any risk for the tenant, since it will continue to be in the same conditions he had to date.
Of course you do not have to leave, because the law already has planned this situation and is one of the few causes of subrogation that have remained within the current law of urban leases.
Article 12 expressly states that the owner may require the spouse of the tenant in the case that he receives a waiver from the latter, so that he has the possibility to express his will to remain on the flat or not.
What it has to take into account are the strict deadlines set by the Law, which are fifteen days from the receipt of the request by the owner; If after this period has elapsed, you have not indicated your willingness to stay, it will be understood that you will definitely resign.
In the event that your husband leaves without making any type of waiver, you will have a maximum of one month to notify the owner of his will to be the tenant.
In all the circumstances, the contract is not modified, but it is limited to continue until the end under the same conditions.
There are several formulas to give the flat to your son understanding that you want to keep the property. The most common of it, and the most advisable for us, is signing a rental contract.
This solution, even if often scandalizes customers when we recommend it, we consider that it has many advantages. If we look at it from the perspective of your son, the comfort of having your father as owner makes you accentuate the feeling of your own home, a fact that would not occur if you enjoy it for free.
If, on the other hand, we analyze it from your perspective, you will have the possibility to modify the situation every five years if, under any circumstance, something happened that would recommend it; the most frequent case unfortunately is that of couples who separate and have a child in common; If the couple has lived there as a free cession, the judge declares that domicile as a conjugal domicile and the mother and son can be until the age of majority of the child. This situation entails in many cases that the owners (ex-in-laws) of the person who occupies the home will most likely see how over the years a third person, a new partner, will live while their son, who has been really the house has been rented, he has to rent another house and he can not enjoy his parents’ apartment.
In a case like the one described above, if the situation had been the same but you had signed a rental agreement with your child, you only had to wait for the lease to end to be able to recover possession.
This is a situation that unfortunately will require a quick and drastic action, because although this person has no right (he had no family relationship with the deceased, only work) forces us to act in the precarious way; that is, we will have to file a claim in order to recover the real possession of the home. This lawsuit is neither easy nor fast, therefore we have to interpose as quickly as possible.
Very important!!! Any attempt of this person to pay any rent must be interrupted, no payment can be accepted for this concept, there may be a direct debit and even rents can be turned into the current account of the deceased.
We have a long experience in updating aging patrimonies. This case is quite common because of the circumstances of having suffered an obsolete LAU forty years.
In many cases all have a common point and it is the excellent situation of the buildings, whatever it is their status. This is a good enough criteria and enough to keep them.
Although it is not possible to give a concrete and individualized diagnosis without knowing the heritage in depth, we do have a clear criterion that is to conserve the best properties of the heritage, regardless of those that are in worse condition or worse situated.
With the sale of these buildings you can fully capitalize and reinvest the income on the rest of the estate, with planned actions to 4 or 5 years.
As asset managers, it is our responsibility to provide all the plans of economic viability, technical, agreements with tenants and everything that means an integral action on them.
Be sure that, although it is a medium-term task, the result is surprising both for the owner, who achieves a healthy, modern and profitable heritage, and for the tenants who, if things are done correctly, collaborate with enthusiasm, although suppose an effort as much economic as of annoyances, because they gain later in habitability and comfort.
Unfortunately I have to give a resounding NO, they have mixed all concepts, it is true that we can make the requirement via Notarial and probably out there to win a little but today and until we have not Jurisprudence about it, the notarial requirement not He is executive in himself. Once the request is made, we will have to go to the Courts to file an eviction for non-payment.
It is true that there have been small modifications of the eviction procedure that can alleviate and shorten the duration of the eviction procedure.
The most significant is the one that refers to the opposition or not of the tenant to the request for payment made by the Judicial Secretary, since if one does not oppose a Decree is issued, terminating the procedure and which is an executive title as well as the Judgment. . In other words, the non-activity on the part of the tenant allows us to save the view of the trial and we can go directly to close the procedure.
A second modification that simplifies the procedure is that now it will no longer be necessary to file a lawsuit to request the execution of the sentence. With a simple writing this will be enough. We return to the procedure that was already used before 2000, while reducing the duration and expenses of the owner.
And to finish the exhibition it is worth mentioning also a change that will facilitate the development of the procedure, both in the initial and executive phases, and which refers to notifications to the tenant. Until now, the difficulty in notifying the tenant was maximum, most of the time it was impracticable and there was no choice but to go to the edicts, with the cost and slowdown that this entails.
From the Reformation, the notifications will be made to the tenant at the address indicated in the application, and if it can not be carried to terms, by Strata to the Court (placing the notification on the bulletin board of the own Court), allowing the procedure continue its process.
This situation is complicated. Effectively, your son’s response is legally correct. Even if you have not signed a rental agreement with him, there has actually been a verbal rental agreement for which a monthly rent has been received. Given the start date of this situation (prior to 1995), an indefinite lease has actually been consolidated.
The possible solutions we believe are two:
First of all, you would have to talk to your child to see if he voluntarily agrees to sign a rental contract with agreed duration and updated price.
If this is not feasible, the other possibility is to update the rent that your child is paying according to the LAU of 1.994, applying all those concepts that the LAU foresees for permanent contracts (Tax on real estate, general services of the property, IPC , community expenses, insurance, etc.)
There are always regret situations of this type but given the circumstances has no choice but to enforce your child until the last requirement of the law, whether works not consented, increases, misuse, that is, everything that the law protect as owner.
Nowadays the new law provides that the owner can ask after the flat for him or for his descendants and relatives in the first degree a year after of having made the contract and, of course, societies can not apply this condition, therefore at first glance it would seem a good advice.
Anyway it is good that you value especially what is the flat that best fits your needs. This doubt is not usually, as it is not a usual reason for being evicted from a flat. Following reasons are the main common:
– On the one hand, the number of owners who ask for an apartment because of need (at least seen from the experience of 65 years) is very low. Within the last 10 years we have only had to apply twice and we have a portfolio of more than 4,000 departments.
– On the other hand, although it is true that a company can not ask for an apartment because of necessity, the company could sell the apartment and in the case that you have the right of first refusal it could be bought by a physical person instead of a company.
We can not avoid if a tenant wants to leave, but we would not worry too much about this issue because the market is much more stable than you think. During the euphoria years the average of years that a tenant was in a flat was three years and finally everyone wanted to buy. Since the crisis began the average has risen rapidly and we are already exceeding five years on average.
You have to consider that for the tenant each change is a cost, an effort and many times a new adaptation to an environment and if you have a family this is very important.
We consider that we have entered into a change of model, which necessarily has to be closer to what is happening in the rest of Europe and that therefore there will be many more people who will rent and look for stable rents.
Despite this and precisely because you can not put barriers to anyone, the tenant today has the right to leave the flat six months after entering, but you also have the right to request in this case a compensation of one month per year not consumed or its proportional part, we believe that the law seeks a way for the tenant to have total freedom but at the same time not to damage the property as much as possible with the compensations provided.
We remind you anyway that the contract is the key to everything and that therefore you have to try to have correctly agreed compensation or any other agreement that is considered essential.
According to the legislation, the precarious one consists of the possession or use of an alien thing without payment of price, nor reason of right different to the mere liberality or tolerance of the owner or real possessor, of whose will depends to end this possession. Within this assumption we find, both the possession granted by the proprietor’s liberality, and the tolerated possession, as the illegitimate or untitled possession, that the case in question, this illegitimate possession may be due to the fact that there never existed title or that it has lost validity.
In all cases, the defendant bears the burden of proving the existence of a title that covers the occupation.
For years there are insurance companies that offer insurance for unpaid rent, and some years ago the Government approved the decree rental guarantee that has the same purpose.
For our administered Amat has set very favourable conditions of guarantee on rentals of homes up to € 3,000 monthly rent, covering the non-payment of up to 12 months, eviction costs up to € 3,000 and also up to the same amount for vandalism, if at the time of access the existence of such acts is determined to the property. At the same time we also inform you that the policy for our administrators allows us to request advances of non-payment of rents once the demand is presented, so that the owner does not have to wait for the completion of the procedure to receive the unpaid rents; all these benefits for a very reasonable and affordable cost for all owners of leased farms.
The Public sector also have coverages planned to favor the placing on the market of rental properties; in this specific case the Generalitat de Catalunya has the will to cover up to 5 monthly payments of unpaid rents (maximum of € 1,500 per month for Barcelona city, decreasing the amounts depending on the population and social demand). However, it does not currently plan to cover expenses for eviction or possible vandalism, the owners may request the recovery of the avalloguer after 6 months have elapsed since the judicial decision of eviction or the extrajudicial agreement.
Both one solution and another are a great step forward for people like you to have confidence and make a clear commitment to the rental market. Currently our country is very far from the European supply of rental properties, and we really believe that these new initiatives (whether private or public) will help increase the supply, both for empty farms and for investors to trust again in the rental business as a safe bet to increase your assets.
To be able to buy properly, the company responsible for marketing would have to provide the following documentation of the dwelling in question:
In Amat. We consider it very important that the buyer is perfectly informed of the situation of the farm, both from a physical and legal point of view. This will allow you to make a purchase decision with more peace of mind.
It is the responsibility of the real estate agency to verify in the Property Registry the legal status of the property being transmitted, especially the data relative to the owner and the existing charges, and subsequently inform the future buyer.
In Amat. We believe that this obligation was born at the same moment that the commercialization of the home starts, and not at the moment of preparing the deposit or purchase document. And why do we think so?
Because it is possible and in fact often happens, that the selling party is unaware of the existence of any load on the property that is put up for sale, as for example in the case where there are censuses, or mortgages paid but not canceled in the Registration, or existence of some embargo …
In this regard, cite a ruling of the Audiencia de Barcelona of 2004, in which it was made clear that it is the real estate agent’s obligation to return the fees received, after signing a deposit, for failing to comply with the obligation to check the Registry, the ownership of the property sold. In this specific case, the agency thought that the only owner was the person with whom he had contact and spoke, when the property according to the Registry belonged to more than one owner. The rest of the owners did not accept the agreed conditions of the sale and, consequently, it was not formalized.
The doctrine considers that there are three types of arras:
Today it is quite usual for sales, especially in the second-hand market, to be made through the granting of a document of penitential deposits pursuant to Article 1424 of the Civil Code. We understand that this type of contract is good for the two parties involved in the sale, as for the seller means that if there is a breach can, with a simple notarial request, cancel the transaction and stay the amount received as compensation for damages and damages and for the buyer is a guarantee that the seller will not detract from the operation, since in any case, he will have to return twice the amount he paid.
From a legal point of view, the private document of sale has the same validity as the writing, so that this document is sufficient. Despite this, years of experience make us recommend that writing be granted as soon as possible.
And, why this? Because the private sale document, despite being valid from the moment it is signed, if the deed is not granted and registered in the Property Registry, does not produce effects against third parties.
In Amat., Throughout our extensive professional experience, we have found on several occasions with serious problems, with farms that for different reasons were not written at the time. We can put as examples:
Plots of urbanization purchased in the seventies and eighties, with private documents, after a few years when the owners have wanted to formalize the deed, it has been found that the promoter or society that sold them the plots no longer exists or is not located. This represents a true “calvary” to find the thread of the registry property.
Homes of those who have asked us to sell for sale and with the simple note of the registration requested, as usual in us – before putting it in your wallet – we have found that either, it was still in the name of the previous owner or owner , or had gone to auction and had been awarded. In this particular case, the owner had to present a third party domain to assert his rights in the Court.
Can you imagine the owner when we informed him that he was not the owner of the apartment where he lived? Can you imagine the years of legal proceedings and costs, to be able to recover the property?
For this and other examples that we can find, we recommend that public deeds be granted as soon as possible.
At the time of purchase, in addition to the amount, additional costs will be generated, which we must bear in mind when globally assessing the real cost of buying the home. These expenses are the following:
It must be differentiated if we are facing a first delivery of the dwelling in question (new housing, new work) or before the second or subsequent delivery of the same (used housing, second-hand housing).
In the event that we are facing a first delivery (new work), we will have to pay 10% in concept of Value Added Tax and also the Tax on Documented Legal Acts, which ranges between 0.50 and 1.5% , according to the Autonomous Community. In Catalonia it is 1.5%.
If we are facing a second installment or a second one (second hand), we must pay the Transfer Tax and Stamp Duty, in the form of Onerous Transfers, amounting to 10% of the sale value.
They are depending on the amount of the sale.
The mortgage is not an expense in itself but entails a series of ancillary expenses such as:
Expenditure derived from the appraisal of the property
Tax on Documented Legal Acts on the total amount guaranteed with the mortgage and which is 1.5%
Fees of the Notary, Registry and Management
Banking commission on the occasion of the constitution of the mortgage
If instead of constituting a new mortgage the buyer subrogates in the existing mortgage, the expenses are reduced, because the subrogation is exempt from AJD Tax (Documented Legal Acts) and there is no expense for the appraisal. However, usually, the expense corresponding to the subrogation commission will be incurred.
If the home is recorded with a mortgage and the buying party is not interested in subrogation to it, the seller has to pay the cancellation costs. What are these expenses?
It is a tax that is credited in favor of the municipality, depending on the years elapsed since the last transmission until the current sale. For its calculation, the cadastral value of the building is taken as a basis.
It is a tax that is credited in favor of the municipality, depending on the years elapsed since the last transmission until the current sale. For its calculation, the cadastral value of the building is taken as a basis.
Although in the case of sale of a floor, this amount is not usually important, since it is applied based on the assigned coefficient, when it comes to single-family homes or with very large community areas, it is advisable to request an advance of the amount to the City Council .
Certificate in compliance with the payment of community fees. The amount will be paid to the property manager.
It has a validity of 15 years, and therefore, if more years have passed since the property is your property, you will have to ask for a new one.
In relation to this issue, we advise consulting with the tax advisor, in order to assess the increase in equity that will occur as a result of the sale. This chapter may be minimized in the event of a reinvestment.
The invoice will have to be saved for the next income statement.
Obviously, there are many sentences that make it clear that, whatever happens, the amounts pending settlement that are part of the payment agreed between buyer and seller, if there is a condition, must be paid within the agreed term, otherwise, the selling party may request the return of the property but also may claim damages for the devaluation of the property due to the occupation and use made by the buyer. Neither can the purchasing party pay the pending amounts of the sale, deducting the corresponding amounts for the repair of constructive defects that the property subject to the transfer may have.
What the buyer can do, fulfilling its obligations and taking into account the existing defects is to claim their right in order to be solved as soon as possible. That is why the Law puts at your disposal the possibility of exercising sanitation actions for hidden defects, urging the corresponding lawsuit.
The private purchase option contract is perfectly legal and binds both parties. We believe that to be totally calm the registration of the contract in the Land Registry would be necessary. And this, for what? To avoid many legal risks that we detail below:
Quite the contrary, if the inscription in the Property Registry of the purchase option is made, any subsequent charge does not imply loss of their rights and in the event of bankruptcy, the judicially appointed Trustees can grant the definitive deed, after the consignment of the amounts corresponding to the price of the option.
As we have stated on several occasions, the optimum is that the time period between the deposit and the private contract of sale is the minimum possible, in order to avoid risks, for possible charges that may appear after the signature of the document.
On one occasion we read a sentence that, although it conformed to law, did not seem fair, as we understood it. In this judgment reference was made to a case in which a property was acquired in a private document and upon arrival the date of the deed the seller did not appear to grant it despite having been required by the buyer on several occasions, to the extent that the buyer had been in need of filing a lawsuit. Once the lawsuit was filed, a charge was placed on the property in question, the buyer filed a third party’s domain trying to prove that the property was already his property, despite not having possession, but the judge estimated that although it had some rights, it had to assume the subsequent load, since at the moment in which the mentioned load entered the Registry it did not have the complete property, because the delivery of the possession had not taken place.
This case is not very common, but there is always an exception that confirms the rule and this is where our recommendation resides.
Often in the second-hand real estate market this situation occurs, whereby the seller wants to sell the apartment or house in which he lives, with all his furniture and appliances, since he can not use them in the new address. Obviously this represents an increase in the price at the time of sale.
In a large majority of cases these issues are not consulted and go absolutely unnoticed, but if we entertain ourselves in studying them thoroughly, we can surely save a quantity of money, which although it will not be very important, will surely be a saving that will always help us to reduce the amount of the value of the high taxes levied on the sale of a property.
How to do it?
In the first place, it is necessary to record the value of the dwelling and the furniture separately in the deed of sale, attaching an inventory with the valuation.
What will we save?
For the value of the house we will settle the 10% rate, while the value assigned to the furniture will be settled at the 4% rate.
Can it cause us a problem to do the double liquidation?
Not one, as long as the value assigned to the home is at least the cadastral value multiplied by the coefficient corresponding to the population where the property is located. These are the values considered as minimum by the Generalitat de Catalunya to consider the operation as a non-priority check.
This is one of the points that arouses more distrust in the relationship between the customers – the seller and the companies that are dedicated to intermediation.
Customers – sellers ask us:
When do we have to pay the fees ?; At the time of signing the arras? In the element of the granting of writing?
The issue is important, and the suspicions are logical because, who more than least, has had an experience of this type or has a friend or acquaintance who has been in the unpleasant situation of paying the fees at the time of signing the deposit , immediately followed by the literal disappearance of the intermediary and from that moment on, having the imperative need to hire a lawyer to watch the operation until the writing and, as is logical, these situations create insecurity and distrust.
It is true that legally the obligation to pay the fees arises at the time of the deposits, and this is clear in a recent ruling of the Provincial Court of Barcelona, dated May 25, 2004, in which it is determined that if there is a order of sale, you have to find a buyer, a price has been agreed, and a penitential deposit has been signed, the right has been born to apperceive the fees, regardless of whether or not it is consummated, definitively the sale.
Despite this ruling, in Amat. We believe that the most equitable way to resolve this issue by both parties, is that the fees (commission) will be charged half at the time of signing the down payment and the other half at the time of granting the deed, thus the seller will be calmer we will watch over your interests until the end of the operation.
Pues sí, de entrada posiblemente habría que distinguir la obligación civil y la obligación administrativa.
Respecto a la obligación civil, la Ley de la Propiedad Horizontal establece, en su artículo 9.1 la obligación de comunicar al Secretario de la comunidad, la mayor parte de las veces al Administrador de fincas y por cualquier medio que permita tener constancia, el domicilio en España a efectos de notificaciones y citaciones por temas relacionados con la Comunidad de Propietarios.
En caso de no ocupar la vivienda y no haber indicado el domicilio a efectos de notificaciones, la comunidad enviará las notificaciones a la vivienda, a pesar de ser conscientes de que no será recogida y también en el tablón de anuncios, mediante un documento que contendrá la firma del Secretario y el visto bueno del Presidente. Dicho documento tendrá que permanecer en el tablón de anuncios durante tres días.
En cuanto a la obligación administrativa, el no empadronamiento tiene otro tipo de consecuencias, alguna de ellas de reciente aplicación.
Por un lado, si aún está empadronado en la vivienda que constituye su domicilio habitual, evidentemente no tiene el derecho político de votar. Por otra parte, no podrá recibir las notificaciones que hacen los diferentes Ayuntamientos para el cobro de los impuestos y las tasas municipales. Asimismo y desde hace poco tiempo en Cataluña y no a todos los municipios, si en un piso no hay nadie empadronado el mismo puede quedar incluido en el Registro de pisos desocupados, todo y que la consecuencias que se deriven de esta inclusión no están muy claras todavía pero puede llegar a representar el pago de más impuestos… o situaciones similares.
In the Land Registry we can find different types of charges. The most common are the following:
It is usual that in the purchase of a home, when asking for the simple note to the Land Registry, we verify that the property we want to buy has a mortgage registered as a load.
The mortgage is always constituted as a guarantee of an obligation that must be assumed (loan, bills, etc.) against a third party, who is the creditor. If we do not comply with the obligation, the creditor has a right over the property to be able to collect the debt, even if this property has changed ownership.
Thus, it is essential that the existing mortgage be settled by the seller prior to the purchase and the creditor (usually a bank) free the zero balance certificate.
But we must know that one thing is that the seller pays his debt (administrative cancellation) and another thing is that this mortgage is canceled in the Registry (cancellation of registration).
To make the cancellation of the registration, it is necessary to formalize a notarial deed of cancellation and that the seller deposits a provision of funds to the person who processes this management; once the management has been carried out and the mortgage has been canceled in the Registry, the agency must return the money remaining in the provision.
What can happen, and often happens, is that at the time of selling the administrative cancellation is made and the provision of funds necessary for the cancellation is deposited in the Registry, but said cancellation management is not carried out or is carried out late … The seller never recovers the excess of the provision of funds and the mortgage is still registered in the Registry. This is always an effect of the malfunctioning of the agency that has been entrusted with the management of the cancellation or for lack of monitoring of said management.
In Amat., as an added value service, in sales transactions, we protect that in the Registry the previous mortgage is effectively canceled, following up on the agency and informing the seller of the cancellation status.
Although it seems incredible, most of the time the cancellation in the Registry becomes effective more than 6 months after the date that is theoretically considered that the mortgage has already been canceled. This delay in cancellation in the Registry decided us to provide this service to our clients free of charge, doing a monthly follow-up until we verify that the mortgage has been really canceled and we can send the seller and the buyer the simple note that confirms it.
It is also common to find certain EASEMENTS inscribed in the Registry:
An easement is a burden imposed on real property (servant property) in favor of another property (dominant property).
The easements must be registered in the Property Registry in order to force the owner of the property to respect them.
Some examples of easements are the following:
Aqueduct easements (water channeling) have no effect other than to prevent, at times, building on the place where this servitude passes
Scrapping easement, which allows the sewers to pass through a building to go to find the general sewer.
Servitude of lights and views, which imposes restrictions when making the building project, preventing overtures to be made where the easement exists.
Right of way: obliges the owner of the property to allow the transit of people and / or things for their property, generally to be able to access other properties adjacent to their property.
The easements remain in the Registry throughout the years and can only be canceled if there is a consent of both parties. That is why it is common to find servitudes established at the end of the 19th century and which are still valid today.
A servitude can be extinguished among other reasons by:
– Disuse for thirty years (accredit it)
– The fulfillment of term in the temporary or of the condition in the conditional
– The resignation by the dominant estate
– The total loss of the dominant estate.
They are not seen frequently, foreclosed properties, but it is not strange either. It is necessary to be very prudent if you want to acquire a building where there are embargoes. This does not mean that it can be allowed to transmit the farm, but it is necessary to contact each of the individuals or legal entities listed as creditors and negotiate with them the way in which cancellation will occur, paying attention to specify Exactly, not only the outstanding capital, but also the pending interest, interest on late payment, commissions and all the expenses inherent to the lifting, in the Registry, of this charge. It is necessary to negotiate well, and in most cases, the possessor of the embargo wants to liquidate the issue and is in a good disposition to reach an understanding. In many occasions depends on the amount and the possibilities of auctioning, you can negotiate a rebate.
IT IS NECESSARY TO HAVE ALWAYS PRESENT THAT IF PURCHASED WITH PREVENTIVE EMBARGOES, THE BUYER TAKES CARE OF THEM. IT IS SUBROGATED IN THE PLACE OF THE DEBTOR.
To lift an attachment from the Registry, it will be necessary for the creditor’s party’s attorney to present the cancellation order in the corresponding Land Registry and Court as it is all settled and there is nothing pending payment.
Many people are surprised to read a number of conditions in the Registry Note. The affections are not burdens, they are marginal notes.
The difference between a load and a marginal note is in the fact that the load is real and therefore, who acquires the building acquires the load, since “they are part” of the farm. The conditions, on the other hand, are personal and affect exclusively the debtor, not a third party.
Each time a sale, a swap … is registered in the Registry … a condition is generated and it means that with respect to that property the taxes related to the transfer have been settled so that the self-assessment is subject to review, in the case of Catalonia the Generalitat, 2 years in the case of purchases and 4 in the case of inheritances.
It is true that in relation to information on the subject of surfaces there is a certain confusion.
What do we mean by built meters? The area between the perimeter of the dwelling
What do we mean by useful meters? Well, those of us who can step on, to understand each other, those who remain free to put the furniture. They leave to discount the built meters, the interior dividing walls. This surface is approximately 15 to 20% less than the constructed surface.
What do we mean by built-up meters? They are the meters built adding the proportional part of the common elements of the construction, that is to say, stairs, vestibule, landings, communitarian corridors, etc.
What do we mean by volume? This term is used when we multiply the surface parameter by height parameters. The truth is that this term is not used much, only when it comes to high-rise housing and especially “lofts”. In these new housing concepts, the volume is really important, since it is the parameter that serves so that a “loft” can be used as a home.
At the moment of truth and more specifically in Catalonia, we usually talk about useful meters and built meters and specifically in the promotions of new work, these are the two concepts that are used.
In the advertising of second-hand homes, it is often not clear what the parameter used is. It is advisible to ask for clarification.
The two concepts, useful and constructed, are important for the buyer, since they inform him about what he is really buying.
The Generalitat, in its periodic inspections of promotions, requires that both information be included in the information provided to the potential buyer.
In the first place, it is necessary to differentiate if the purchase is made on a plane, that is, before the end of the promotion or when it is already finished.
If the purchase of the house is made concrete even though the work is under construction it is very important that we inform of all the details of the future work, not only the constructive ones but also the legal ones. Therefore, it is necessary that you inform us in detail and that we ask, at the time of signing the contract of sale, the following documentation:
Final certificate of the work
Certificate of occupancy
First occupation license
Certificate regarding the ten-year insurance
Certificate of the bank on the mortgage situation if we subrogate or mortgage cancellation certificate and receipt of the deposited funds provision in order to make the cancellation of the registration, if it is the case.
Bulletin of the sub-management companies of the different services that the house enjoys (water, electricity, gas, etc.)
List of industrialists who have intervened in the work
Guarantee of household appliances.
In this case, the promoter at the time of making the sales contract or the deposit contract, will have to deliver the following documentation:
Simple note of the Registry to know the legal status of the farm
Photocopy of the writing of new work
Photocopy of the statutes and rules of the community of owners
Photocopy of the mortgage deed
This documentation will have to be completed in the act of granting the deed of sale. Surely, at this moment if the work has been finished for some days, presumably one of the co-owners will live and the community of owners will already be constituted. In these circumstances, the developer, at the time of writing, will be required to deliver:
Certificate of occupancy
Certificate of the bank on the mortgage situation if we subrogate or mortgage cancellation certificate and receipt of the deposited funds provision in order to make the cancellation of the registration, if it is the case.
Bulletin of the sub-management companies of the different services that the dwelling enjoys (water, electricity, gas, etc.)
List of industrialists who have intervened in the work
Guarantee of household appliances. Installed
Community certificate as the promoter is up to date in the payment of the expenses related to the housing object of transmission
In Amat. We are very clear that although it is the responsibility of the developer to provide all this documentation that we have commented, it is our obligation to ensure that it is delivered correctly and completely to the buyer.
Our opinion is that, in order to avoid later problems, the quality memory must be as detailed as possible and must contain the following documents:
Electric (point of light, plugs, …)
Water (connection points)
Heating (description of how it will be)
Air conditioning (how and where)
Another important point to keep in mind is that in the promotions of new work is not allowed to make changes to the finishes, as they cause many discussions in the progress of the work, delays and confusion. In the event that these changes are possible, the most common is to make a prior valuation of the changes with the corresponding budget that will have to be accepted by the buyer and of which he will pay half of its value, in advance, at the time of acceptance of the budget and the rest at the time of writing.
To be able to divide a premises if it is feasible to do it physically, it is necessary that several requirements are met:
From a civil point of view, the Horizontal Property Law recognizes the faculty of any owner to divide, add or segregate, as long as it is contemplated in the statutory rules. But it is necessary that the statutes expressly state that it is not prohibited.
Obviously, all these procedures represent a cost, but surely it is worth taking them because in the real estate market much smaller stores than large ones sell much better.
From January 1, 2013, the deduction for investment in habitual residence is eliminated. However, a transitory regime is established under which the following taxpayers may continue to practice the deduction in future years:
Taxpayers who have paid amounts for the realization of works and facilities for adaptation of the habitual residence of persons with disabilities prior to January 1, 2013, provided that the aforementioned works or facilities are completed before January 1, 2017 .
In any case, to be able to apply the transitory deduction regime, taxpayers must apply the deduction for said property in 2012 or in previous years, unless they have not yet been able to apply it because the amount invested in it has not exceeded the exempt amount for reinvestment or the effective bases of deduction of previous homes.
Therefore, in the case of consultation, and provided that the purchase of the new house has been made prior to January 1, 2013, the amounts paid will not be deductible until the amount of the same does not exceed the amount of the amounts deducted in the first house, provided that they have been able to deduct.
If, as in our case, we also have an exempt patrimonial benefit, since the amount of the first house has completely reversed in the second, and therefore the increase in patrimony generated by the difference between the sale price of the first house and the purchase price has not been taxed, to begin deducing the fees paid for the purchase of the second home, the amounts paid must be greater than the amounts deducted for the first house plus the benefit that has been exempted by the increase in equity.
On the contrary, if the house has been acquired as of January 1, 2013, the taxpayer will not be able to enjoy the deduction for investment in a habitual residence.
As an example (if the new home has been acquired before January 1, 2013):
We consider that the purchase price of the home is 12, the sale price is 20, that the fees deducted from the first have been 7 and that the purchase price of the second home is 25.
In this case, the increase in patrimony generated by the sale of the first house can be exempt if the 20 received by the sale of the first one are reinvested in the purchase of the second house.
The deduction for the purchase of the second house can not begin to be applied until the paid installments exceed the 7 already deducted for the purchase of the first plus the exempt benefit of 8.
When these charges appear we are in front of a lot that comes from a reparcelling file, possibly as a result of the execution of a partial plan and as a consequence, because there is the lot as such, it has been necessary to do some urbanization works and some equipment, that have been paid by all the owners of the Plan. This type of registration is made precisely to guarantee that these payments will be taken care of. The site responds in case the owner does not pay the corresponding fees of the Compensation Board and could, if necessary, be auctioned in order to meet the payments. It is also necessary to bear in mind that this debt is preferred to other debts that are recorded on the site in the Land Registry.
As the buyer of the site I recommend three checks:
Once these checks have been made to obtain the cancellation of the registry entry, it is necessary on the one hand that the City Council certifies that the urbanization works have been approved and received and on the other hand that the Compensation Board certifies that all the urbanization fees have been paid.
It is important to know that the VAT must be paid at the moment of the delivery of the site, before the construction and reception of the houses. The reason is that the Treasury interprets that the delivery of the site constitutes an advance payment of future housing, and therefore, the tax is accrued at that precise moment.
If the sale can be made provided that two conditions are met, which are detailed below and correspond to two different perspectives:
From this point of view, in order to sale a part of the building, it will be necessary to previously obtain a segregation license, which will have to be requested at the corresponding Town Hall, and which it will grant if the “mother” building once the segregation has been produced, it continues to comply with the parameters and urban requirements of the area.
From a point of view of the Law of Horizontal Property, to be able to segregate and sell later, it will be necessary the authorization of the co-owners of the property, since the land in question is a common element (as established in article 396 of the Civil Code) . The agreement will have to be adopted unanimously, since it is about modifying the title of the building and it is necessary that this agreement be adopted according to what is established in Article 17 of the Horizontal Property Law.
We have heard some similar cases, based on who has lost the views, which is an immission, and on the part of the person who has planted the trees in which he is protecting his property.
Obviously, we are facing a clear case of collision between the right of view that you have and the right of protection that your neighbor has. In most cases, in which a subject of these characteristics has reached the Court, the Judge and the Hearing have considered that it is more important to protect the right to privacy than the right to hearings. This is very clear in the Judgment of March 17, 2005 … “in the face of the collision between the right to have views of the surrounding landscape of the plaintiff’s house, with the right to privacy alleged by the defendant, we have to to opt for the pre-eminent protection of the latter … “
The answer in this case is categorical: NO. To be able to sell a part of the garden you need the unanimous consent of the whole community, we must not forget that this garden, regardless of its physical characteristics, is a common element of the property, on which the right of co-ownership inherent in the separate property that each of the owners has on the different floors or premises (Art. 396 Civil Code), in such a way that no part of the garden can be segregated without the unanimous agreement of all the owners and adopted according to those that establishes Art. 17 of the Horizontal Property Law.
Yes. Leases of real estate that are not subject to VAT must be taxed for the purposes of Transfer Tax (ITP) at the time of conclusion of the corresponding contract. Thus, the leases of commercial premises or dwellings for office or office use or the lease of housing when the lessee is a legal or professional person within the framework of its economic activity would not enter this area, since in these cases, the lease would be subject to VAT.
With the entry into force of the Law 2/2014, of 27 de January, of fiscal, administrative, financtial and of the public sector mesures, the Generalitat de Catalunya regulates, making use of its power for the first time to modify certain aspects of the ITPyAJD, the taxation of the leases approving a fixed rate (until now the state scale was applicable) of 0.3% as of January 31, 2014 based on the monthly rent and for the entire duration of the contract in relation to those contracts that do not pay VAT (with a minimum of three years) and 0.5% from 2015. If the contract does not appear, the settlement will be computed for six years.
Likewise, it is worth mentioning that the aforementioned Law introduces the ITP’s self-liquidation regime for these leases (through the 600 model) which replaces the stamp effects used so far as a means of payment, with the settlement period being one month after the conclusion of the contract.
Last, but not least, we must remember that even if the tenant is the taxpayer of the tax in question, the landlord holds the status of subsidiary liability in case the tenant does not present and pay the tax.
This practice has been usual in recent years in which flats were sold off- plan, even before all the details had been decided, it is otherwise normal that in a work, as a living element, that in the course of its execution , suffer some variations, generally to improve, for a long time that has been previously dedicated to design it.
If the changes specifically affect already sold departments, it is clear that such changes can not be made without the consent of the buyer.
Normally, the issues in terms of designating responsibilities are very complicated, since in a work different companies intervene, with their respective insurance companies.
The first thing that must be done is a survey to verify that the movement that has apparently occurred has been as a result of the work carried out on the neighboring farm. It is really necessary to prove it and the cost of the test corresponds to the party that raises the claim, in this case you. If the cause is really demonstrated by the excavation carried out, we believe that the demand would put it both against the constructor and against the developer. Why?
Because it is difficult to guess before the judicial procedure, the relationship between the developer and the contractor. There are many judgments that make it very clear that the responsibility belongs to the promoter, when the latter, under the contract that binds him to the contractor, reserves the direction and supervision of the work. Generally the promoter carries out this management when the facultative direction is contracted by the promoter and not by the contractor.
As surely to you, who is affected, it is not possible to know the content of the contract between developer and contractor, the safest thing is to sue the two and in the evidentiary phase of the corresponding procedure, they will be concerned to demonstrate the respective responsibilities.
There have been some cases like the reason for the query. In principle it seems that there should be no problem, since the foreign notary especially if it is an EU country, will ask for certain requirements in the operation, very similar to those that would be requested by the Spanish notary. Surely it will examine the titles, charges, ownership, the legitimacy of the parties involved; What will surely not be the same is the form of the contract. The doubt comes as to whether the form is substantial for registration.
At the moment, the general direction of the registry and the notary find it essential that the documents of transmission of property on Spanish soil, are also granted by Spanish notaries, regardless of the countries of origin of the contracting parties. In any case, a case such as the one presented in a dispute before the hearing is pending resolution.
The constitution of the right of the real right of use and habitation is not a very common practice nowadays, this does not mean that a right of these characteristics can not be constituted.
To constitute this right, the most usual way is to do so by means of a public deed, and to register it in the property register, in order to have effect in front of third parties. It is similar to the usufruct, it is usually with a fixed time and it is a personal right, although in some occasions in the constitution itself it is stated that it can be transmitted by “mortis causa” in favor, for example, of the spouse.
It can be free or paid, usually is paid, all that does not mean that you pay an amount periodically. It may be that what is agreed is that the beneficiary of this right takes charge of all the expenses of maintaining the farm, or that he takes charge of rehabilitating it and that in the end these works remain as a benefit of the farm, they also can agree on other agreements of this nature.
This type of real right is often used if one wants to acquire a building in which people live with whom it has been agreed that they will continue to reside for a certain time.
No, he can not do it, in any way. What Article 305 of the land law establishes very clearly is that the owners of any real right may go to court to demand the demolition of works and / or facilities that violate the established norms regarding distances, heights etc. In many cases, what happens is that generally more urban infractions take place, with what the height of the fence can be nothing more than the tip of the iceberg.
In practice it happens that the majority of owners who are in a similar situation, before going to the civil jurisdiction, initiate the procedure by administrative means, that is, they denounce the fact in the first place in front of the city council of the locality and in any case then go to the administrative litigation.
We insist, we must be very clear that there is the possibility of acting through civil means.
On paper it would not have to happen, but the reality is that changes often occur with respect to the initial project, both at the initiative of the promoter and the architect and that can have important consequences if private documents of sale have been signed.
In any case, we must differentiate according to the type of change:
Obviously, the term of delivery of a home is part of the essence of the sale contract, which surely when you signed, are not only indicative but contractual, surely when they made the decision to buy one of the factors they considered It was the delivery time and according to what was established in the contract they decided when to put their previous home for sale.
In matters such as the one consulted today, there are several sentences that make it very clear that in the case of non-compliance with deadlines, unless it is due to force majeure (causes in which the promoter can not do anything), the promoter will have to pay no only the amount of the rent of the months of delay in the delivery, but also the expenses originated before the fact of having to store the furniture in a suitable place, as well as the transport expenses.
In any case, it is worth clarifying that few cases like this reach the courts, since promoters are usually aware of this situation and are willing to seek a solution through negotiation.
Legally, a series of internal property traffic control mechanisms are established to prevent fraud and money laundering. Therefore, people who want to buy a property from a non-resident must take into account that in addition to being required to make a withholding on the transmission, they must use the appropriate form of payment for the operation.
The person who acquires the property, whether or not resident, is obliged to retain and deposit in the Public Treasury 3% of the total price of the sale. This retention must be carried out at the time of formalizing the deed of sale and constitutes a payment on account that must be paid to the Tax Agency within one month from the date of transmission by the buyer. In addition to withholding, buyers should know that non-residents have accounts for non-residents and that therefore the checks to be prepared must be special for non-residents.
Finally, it must be taken into account that the tax residence is accredited by means of a certificate issued by the competent Fiscal Authority of the country in question. The term of validity of said certificates extends to one year.
It happens very rarely, but there have been cases like this and it is obviously a difficult issue because, a priori, there are two rights of the same characteristics on the same property.
From the legal point of view, the first question that needs to be determined by the courts is whether in a case such as this the mortgage law or the common civil law must be applied and here there is no unanimity. For some the treatment would have to be as if there had been a double sale, but in fact it is not, to be a double sale there would have to be only one seller and two buyers and in this case it is clear that who would hold the right is who First, the purchase would have been registered in the Property Registry, but in this case the two rights come not from two purchases, but from two registrations of the same property, which cause two register entries of the same rank and nature, contradictory and incompatible.
As we have said before, most of the jurisprudence is inclined towards the application of civil law, but here we also find different doctrines:
The registry sheet of the building that has the best condition domain, according to civil law prevails.
The record sheet of the building with the oldest registration, because it is the first one that entered the registry, prevails.
In these cases we find ourselves with difficult subjects, in which much doctrine is needed and one must interpret, not only the Civil Code, but also the Compilation and the ancient uses.
Evidently, sellers have the obligation to inform not only of the loads that are already registered in the Property Registry, but also of those that know that they exist and know their existence and to which they can access in the Registry even though they do not they appear at the time of the granting of a deposit, as, for example, they may know that they are debtors of a credit that may cause a lien in the Registry.
In these cases, sellers have the obligation not only moral, but also legal to report the real situation of charges on the building and if they do not they can be forced to return the duplicate deposits, or to be sued for damages and damages, since the lack of information has caused the buyer to be in a situation of legal uncertainty.
For this reason, we reaffirm what has already been said on other occasions, that it is necessary to request the registration note of the farms that are put on sale at the same time that the marketing authorization is given, to ask again at the time of signing the deposit. and again at the time of the execution of the deed of sale, since the charges may be different in each of these three sections.
The fact that there is a relationship of kinship between both parties does not prevent that the property can be sold nor should it lead to the cross-covert operation. If it really shows that it is a sale, it does not have to be any kind of problem. For there to be a sale there must be a series of requirements: that the transmission is onerous, which means that it has a price (at market value) and consequently a payment and that a public deed is made and the appropriate taxes are settled.
Another thing is to determine which of the two options -donation or sale-, is more interesting from the financial point of view and, above all, from the fiscal point of view, since they can decant the balance to one side or the other, depending on every situation. There are differences regarding the tax regime of donations between the different Autonomous Communities, being more favorable in some of them, so the sale of real estate to children is postulated as an alternative.
Currently in Catalonia the tax rate of Transfer Tax and Documented Legal Acts, in its form of Onerous Transfers, is 10% against the tax rates of Donations to children, by public deed, ranging from 5% to 9% (depending on the value of the donated).
Finally, we must remember that, in any of the two cases (donation or purchase), who transmits the property must be taxed in his income statement, as a capital gain, since it has generated capital gains that cause an alteration in your heritage. Likewise, in both cases, the transfer will be subject to the Tax on Increase in Value of Urban Land that must be paid by the transferor or the donee, depending on the nature of the operation.
It is evident that since life expectancy is a random event, it is not easy to determine which is the most adjusted figure to establish it as a life annuity. It is clear, of course, that it must be a fair figure.
One of the most advisable criteria is the income resulting from dividing the value of the building by the annuities that are considered to live by the person who owns the real estate object of the assignment, the number of years that will be estimated according to the health of the person that he intends to do for life.
Another characteristic to take into account when making this life and that is usually the most common, is that the transferor continues to live in the property and if he wants to lease some parts.
It is essential at the time of deciding to make a transmission of this type to be very sure of the honesty of the investor with whom we decided to do the operation, to have the maximum guarantee in the fulfillment of the contracted obligations.
If you have any questions or want to inquire, call us, Amat., Will provide all the explanations you need.
Regarding the query, comment that from the fiscal point of view it will have to declare the patrimonial benefit generated by the difference between the acquisition value and the transfer value of the dwelling.
However, if you intend to sell your home to acquire another one, you could:
Make use of the reinvestment exemption: this tax advantage allows taxpayers who have decided to change their habitual residence not to pay for the patrimonial benefit derived from the sale of the previous dwelling, also habitual. If you reinvest all the amount that has been obtained in the sale of your home, you will not be taxed for this concept. If the reinvestment is partial, only the proportional part of the increase that corresponds to the amount invested will be exempt.
Make use of the deduction for purchase of the habitual residence: that is, deduct the amounts paid for the acquisition of the home. The deduction percentages will be applied to this amount and in any case it will not be able to exceed the maximum base. However, it must be borne in mind that if the acquisition of the new habitual residence has taken place after December 31, 2012, the deduction for investment in a habitual residence will no longer apply.
When a habitual residence is acquired having enjoyed the deduction for acquisition of other habitual previous dwellings, it will not be possible to practice deduction for the acquisition or rehabilitation of the new one as long as the amounts invested in it do not exceed those invested in the previous ones, to the extent in which they would have been subject to deduction.
A finales de los años 80, se vivió una verdadera explosión de siniestros y un gran número de edificios de viviendas estaban afectados por graves patologías y vicios, que determinaron el derribo y reedificación o bien la simple sustitución de algunos elementos afectados que necesitaron a partir de aquel momento un seguimiento estricto del conjunto, mediante inspecciones periódicas.
Por tanto, dado la tipología del edificio, que como usted comenta fue construido en la década de los 70, le RECOMENDAMOS que pida un test de aluminosis (que se puede completar con un informe de diagnosis) y al mismo tiempo contacte con la comunidad de propietarios para informarse sobre las obres que se han hecho y las previsiones futuras, con tal de detectar cualquier problema de este tipo.
Dicho esto, es necesario diferenciar entre dos figuras: la aluminosis y el cemento aluminoso.
Puede ser que el piso no padezca aluminosis y el problema se encuentre en el hecho de que la estructura de la finca sea de cemento aluminoso, lo que puede implicar la necesidad de realizar actuaciones de mantenimiento y conservación, ya que el cemento aluminoso en determinadas condiciones genera problemas y se ha de preservar de la humedad. La estructura de este tipo de cemento es potencialmente un peligro si se dan las condiciones necesarias, pero cuando se detectan los problemas hay medidas para corregirlos con un éxito total. Por otra parte, se puede dar que el piso no presente estructura de cemento aluminoso, pero tenga una lesión estructural o de otro tipo, oculta, que haga el tema inapropiado y por tanto sea del todo recomendable no adquirir el inmueble
En cualquier caso, insistimos en la conveniencia de pedir la práctica del test de aluminosis y la necesidad de contactar con la comunidad y asegurarse de todo lo que puede afectar a la vivienda que ha de comprar, sobretodo tratándose de un edificio de mas de treinta años, aspecto que lo sitúa cronológicamente en el mismo momento constructivo que otros edificios que han presentado patologías importantes por el uso y degeneración por humedades del cemento aluminoso en sus estructuras.
At the end of the 80s, there was a real explosion of disasters and a large number of residential buildings were affected by serious pathologies and vices, which led to the demolition and rebuilding or the simple replacement of some affected elements that they needed at that time a strict monitoring of the whole, through periodic inspections.
Therefore, given the typology of the building, which as you said was built in the 70’s, we RECOMMEND that you request an aluminosis test (which can be completed with a diagnosis report) and at the same time contact the community of owners to inform themselves about the work that has been done and the future forecasts, in order to detect any problem of this type.
That said, it is necessary to differentiate between two figures: aluminosis and aluminous cement.
It may be that the flat does not suffer from aluminosis and the problem lies in the fact that the structure of the building is made of aluminous cement, which may imply the need to carry out maintenance and conservation actions, since the aluminous cement under certain conditions it generates problems and it has to be preserved from humidity. The structure of this type of cement is potentially a danger if the necessary conditions are met, but when problems are detected there are measures to correct them with total success. On the other hand, it may be that the flat does not have an aluminous cement structure, but it has a structural or other hidden lesion that makes the subject inappropriate and therefore it is highly recommended not to acquire the property
In any case, we insist on the convenience of requesting the practice of the aluminosis test and the need to contact the community and ensure everything that may affect the home to be purchased, especially in the case of a building over thirty years old. , an aspect that situates it chronologically in the same constructive moment as other buildings that have presented important pathologies due to the use and degeneration by dampness of aluminous cement in their structures.
You could ask for the rescission of a sale by injury, when the value at which the sale was made was less than half the market value, this occurred a few years ago, in many occasions, especially when the value for which it was written was lower than the real value, today when everyone, at least in Catalonia writing for the real value of the purchase, it is not possible to give this legal figure.
In spite of this, it is true that there is a case in which the termination can be given due to injury and that is when a home is given in exchange for a life annuity.
In any of the cases of assignment of housing for life annuity, if the agreed rent multiplied by the life expectancy years of the assignor gives an amount less than half of what would be worth the real estate in the market, you could ask the rescission, with absolute independence of the years in which the transferor actually lives and in this sense there is a judgment of the Supreme Court dated September 18, 2006.
There are many judgments that recognize the responsibility of the architect in the bad execution of the works, considering that in the architect falls the responsibility of: design of the work, planning and inspection.
Also sentences say that the architect responds of the vices of the direction, it corresponds to him then to inspect and to control that the work is executed in agreement with the project by the created one and in case of not being thus, has the obligation to take the suitable measures
It is true that it is the technical architect who has more information of the day to day of the work, since its mission is to control measures, installed materials, details of finishes, etc. but that does not mean that the architect also has his share of responsibility, as he is the person in charge of the work and the general watchdog of the entire construction process.
The most correct action by the real estate agency is to ask you to sign a custom note. This document, contrary to what many people think, does not only serve to guarantee the collection of a fee, but in this document normally the agency undertakes to make a series of actions, publicity, commercialization, negotiation … whose compliance may require the seller. This document of custom note or mandate also has the value of being the authorization for the agency to advertise the product.
It is judicially accepted that the fees can be requested without having the order note, only having the authorization to advertise.
In the real estate world, as in all those that grow rapidly and sometimes with little rigor, it is not strange to find advertised real estate that does not have any authorization to sell, nor only know the property. In these cases the owners can take legal action, which often do not because of ignorance that your property appears in one or another magazine or on an Internet portal, announced by a company that not even know.
As we have already shown on several occasions, at the moment of paying the down payment for the purchase of a property it is necessary to require the developer or the real estate agency to intermediate and advise the operation that makes available to the buyer the certification of the Property Registry that accompanies the signature document that is signed and so are clear and manifest the charges that may exist on the farm.
At some time it may happen that between this document of arras and the signature of the writing appear some more load in the Registry. In these cases there may be two different circumstances: one, that the selling party has no knowledge and therefore she is as surprised as the buying party, and the other is that she had knowledge and would not have informed the acquiring party.
The most usual is to try, within the period established in the document of arras, to solve this situation, lengthening if necessary the term to grant the property deed. This does not mean that, if the buying party wishes, it may require the selling party and ask for a doubled return of the deposits, provided that the issue is not resolved within the term stipulated in the signed document, based on a manifest breach of the contractual conditions.
It is legal and correct, generally in brand new properties sale, at least until now, if it has been done during the building, before the new work was granted and the statutes of the community were drafted, it is usual to include in the contract for the acquisition of housing a generic clause of acceptance of the future statutes.
Normally, the statutes of the community are drawn up by the promoters or their legal services, always thinking about how to avoid problems in future relations between neighbors or problems related to the use of common elements. Normally the writing of the statutes consists of putting in writing what common sense dictates for a good coexistence and for the good use of the facilities.
In some occasions, the promoter uses this tool to reserve some benefit in his favor, but they are very sporadic cases and difficult to solve.
Recently, in a case that we believe is abused by the developer (reserve a series of facilities of the common elements) the Supreme Court ruled that buyers could have known before the signing of the deed this circumstance so it has not there was abuse, a judgment of which we disagree, since although they could have known it before the signing of the deed, it was not possible before the contract of sale.
Well, yes, you can buy the house and organize it. There are several formulas, but the easiest and usual is to guarantee the number that is postponed with a resolutory condition, which is a legal figure that was used very often before the real estate boom of recent years and that we believe will require recovery to facilitate some operations. It consists in reflecting in the deed of sale the pending amount, the term in which it will become effective and establish a real guarantee that is the resolutory condition. In order to be able to use this legal form, approval and consent are obviously needed on the part of the seller and on the other hand of the bank through which the mortgage was processed.
And why is the seller’s authorization needed? Because for him it has an important consequence apart from postponing the payment and is that he will have to postpone his credit to the bank, the mortgage credit of the banks are priority for registration purposes and imagine if you did not comply. It is evident that the seller would recover it, but he would also recover the flat and keep the bank’s credit.
In any case, in our long career of 67 years, we have never met in this situation, as the buyers comply.
If that is possible and more usual than is generally thought, especially when the house has been received from family inheritance. In the sixties it was usual to build houses and not to write new work, since it was usually built from savings and no mortgage was needed; nobody thought about enrolling it, since registration was not necessary.
At present this is no longer possible to happen, but the truth is that many previous situations still survive and many owners are not aware of it until they consider making a transfer or a mortgage.
How can it be solved? In order to do this, it is necessary to obtain a series of documentation. On the one hand, it is necessary to see if the registered house appears in the cadastre and this will probably be the case, because for many years registration and cadastre have gone through different paths and when cadastral reviews were made, all the properties were registered, they were registered or not.
The necessary documentation, depending on the circumstances of each case, is the following: certificate of the cadastre where the surface and the age of the building appear; certificate of the city council where also the antiquity will consist and above all the non-existence of any urban planning file underway; Finally, it is usually necessary to have a certificate from an architect that shows the detailed description of the farm.
With all this documentation can be granted the writing of new work and registration in the Land Registry.
The rescission due to injury is a right that has the selling party transmittable to the heirs to demand the nullity of the purchase transaction when the price of the same is less than half its value in the market.
In the case that exposes us, evidently with the increase in prices that has been in the real estate sector in recent years, it is certain that the difference in the price of the property from the day on which the option was signed and the day on which the sale was signed can be much higher than the criterion established to be able to carry out the rescission due to injury. But it is clear that the transaction was negotiated, signed and signed four years ago in accordance with the values of the moment and therefore I understand that there is nothing to claim, if the value was really right at the time of signing the option .
Evidently, according to what is established in the 5th book of the Catalan Civil Code, you could sue them for intolerable immissions, the main problem is that it is up to you to prove this situation, and how can you do it?
Surely you during these years of annoyances have made many complaints in front of the City of Sant Cugat, sure as a result of these complaints the City has opened disciplinary proceedings, these are the files that will serve as evidence at the time of going to court, no the testimonies are valid, given that I am sure that the same ones that you will take the defendants, this is the most usual. You can also provide acoustic tests where the barking of dogs are recorded on different occasions.
This type of lawsuits have become very common, what happens on many occasions is that at the time of the trial the defendants change the local dogs or get rid of them, despite this the demand can continue and goes to be a claim for damages.
We will have to clarify first that we do not have a new law of urban leases, but that the law 4/2013 is a law of measures of flexibilization and promotion of the housing rental market, therefore now coexist with this law, the law of leases of 1994 and the leasing law of 1964, where certain articles have been repealed but others remain.
That said, although he talks about flexibilization and it is true that he is much more flexible, he also ends up regulating some issues, such as, for example, the minimum duration.
In fact, what this new law has done, the order of priority was modified so that the agreement between the parties to the contract will always be taken into account, after what the law of leases says in Title II and the civil code will be supplementary. , when until now we had the law first, then the contract and finally the civil code.
All this only means one thing, and that is that the contract becomes from now on the key piece of the whole relationship with the tenant, we can no longer think that the law will fix it, if we have not foreseen it in the contract we can have serious dislikes.
Therefore a good contract is the key to any future lease.