www.resortalia.com: Lasr News All news on www.resortalia.com BANKS WILL HAVE TO PAY BACK ALL EXCESS MONEY CHARGED FROM ‘’FLOOR’’ CLAUSES (CLÁUSULAS SUELO) <A HREF="http://www.resortalia.com/index.php?mod=ver_noticia.php?id=41"> </A> The EU Court of Justice ruled on the 21st December 2016 in respect of floor clauses (Cláusulas suelo): Spanish banks will have to return to customers the total amount of what they received in relation to floor clauses. http://www.resortalia.com/index.php?mod=ver_noticia.php?id=41 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=41 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=41 MORTGAGE FORMALISATION EXPENSES IMPROPERLY CHARGED BY BANKS CAN BE RECLAIMED <A HREF="http://www.resortalia.com/index.php?mod=ver_noticia.php?id=40"> </A> The Supreme Court Judgment 705/2015 of December 23rd declared the clause by which BBVA imposed on borrowers the payment of all expenses, taxes and commissions related to mortgage loans to be abusive. http://www.resortalia.com/index.php?mod=ver_noticia.php?id=40 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=40 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=40 Problems with dogs? <A HREF="http://www.resortalia.com/index.php?mod=ver_noticia.php?id=33"> </A> Having dogs that cause discomfort or problems to others in the community has always been a controversial issue, because, at times, it is very difficult to find a ‘happy medium’ between the pet owners’ rights and the rest of the community members’ right to peace and quiet. It is increasingly common to find court rulings which force pet owners to stop having pets i.e., by forcing them not to have dogs in a community for the inconvenience caused to their neighbours. Obviously, these are cases where it would have been proven with hard evidence (reports, photos, sound recordings, etc.,) as well as statements taken from neighbours and police or municipal agents stating that the situation was unbearable. An example of these rulings is a Judgement of 16th of January 2013 of the Regional Court of Valencia (Section 7a); in this ruling the importance of evidence in these types of legal cases was clearly stated: “ as factual evidence exists, the facts of which the claimant has used for the basis of applying section 7.2 of the Spanish Horizontal Property Act, documentary evidence as well as reports, such as court statements, especially that of the agent indicated stating that although the three dogs are not causing problems anymore, these problems have been caused in a continuous manner with the constant barking and dripping of urine.” In the same sense, on the 25th of November 2003 at the Regional Court of Madrid (Section 11) : “It’s been proved by the claimant the existence of this permanent discomfort to the Community of owners, through the documentary evidence that has been provided (…) in which it is highlighted that from 1992 until the year 2000, several statements have been presented as well as individual and collective complaints, with files for sanctions initiated by the Town Hall, final penalties, with reports and intervention of staff of the municipal police that confirm the crucial fact of the existence of a large number of dogs inside the property and in the garden, as the reason for the illicit activity charged. In view of the foregoing, it’s clear that in these sorts of legal cases, it’s very important to prove a continuous situation of discomfort and that the affected have acted diligently attempting to put an end to the problems. It should be noted that prior to obtaining these court judgements, the first step should be to activate the one and only mechanism that is laid down by the Horizontal Property Act for cases of activities which are disturbing, unhealthy and harmful: this injunction is contained within Article 7.2 of this act. So, as a preliminary step, the President of the Community should send a written communication to the owner responsible, urging for them to put a stop to the problem. In the event that such activity does not cease, a general meeting of the owners should be held where if approved by a simple majority, legal proceedings can be initiated in the normal way. The action may be brought against the property owner or against the occupier. If the case is directed against the property owner and a favourable judgment won, in addition to the definitive cessation of the activity and compensation payable for damages, there could also be the loss of the right to use the property or premises (up to a maximum of three years) depending on the case. If the offender were not the proprietor, the court order could declare, all rights relating to the house or premises as extinguished indefinitely, as well as their immediate eviction. http://www.resortalia.com/index.php?mod=ver_noticia.php?id=33 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=33 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=33 <A HREF="http://www.resortalia.com/index.php?mod=ver_noticia.php?id=32"> </A> http://www.resortalia.com/index.php?mod=ver_noticia.php?id=32 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=32 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=32 BUILDING DEFECTS IN THE COMMUNITIES OF OWNERS <A HREF="http://www.resortalia.com/index.php?mod=ver_noticia.php?id=31"> </A> In the communities of owners, there is a very important issue, which is present, unfortunately, in many meetings and discussions: the building defects. In Spain, all these defects and situations are under the Ley de Ordenación de la Edificación (from now on LOE). It’s not uncommon to have problems in the buildings, but above all, it is very important to know clearly what to claim, how to claim and the deadlines to start the legal actions. Art. 17 of LOE states the civil liability of the agents involved (building developer, architects and surveyors) in the procedure of construction, establishing the following deadlines: a) 10 years for structural elements. b) 3 years for constructive defects that affect to the habitability requirements (hygiene, health and environment). c) 1 year with regard to the building defects that affect the finish of the works. The late case law of the High Court has defined that this a deadline of guarantee, not a time limit or an expiration. Therefore, the defects should have shown in that period. If the damage shows itself in that period, the affected will have 2 years to claim. It is a time limit deadline, so it can be interrupted, with a formal communication to the involved parties. Furthermore, the Spanish Law establishes that is it possible to sue the building developer (but not the rest of the involved parties, as the Architects) for the contractual liability established in the Spanish Civil Code (15 years). As well, all the legal procedure must be directed by a Solicitor and by an Architect, who initially will have to issue a report about the sort of damages. Even more, if, finally, the issue goes to Court, the technical discussion will be focused in his / her Expert report in confrontation with the rest of the involved parties. As explained, there are many legal possibilities in the building defects,so the communities need to contact professionals. http://www.resortalia.com/index.php?mod=ver_noticia.php?id=31 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=31 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=31 Where does the debt of the communities of owners come from? <A HREF="http://www.resortalia.com/index.php?mod=ver_noticia.php?id=30"> </A> Debtors are one of the main concerns in the Communities of owners and one of the hobbyhorses in the administration of communities, which always are working on the analysis of “where does the debt come from”. An organism called “Observatorio para las comunidades de propietarios” (Observatory for the communities of owners) have issued a report about debtors trying to provide some keys, along with the figures, about debtors, after analyzing hundreds of communities. The amount of debt in the Communities of owners in Spain for the year 2014 is 1,854.71 millions of Euros. Furthermore, they state that debtors are divided in two big groups: A) 51 % corresponds to owners that don’t pay because they can’t. B) 49% to those representing financial entities, real estate companies and professional debtors that do not pay, although they have the resources to do it. Inside this group B), the financial entities, real estate companies and public entities for the management of properties mean 48,98% of the group; and the professional debtors mean 51,02 %. This situation shows how important is to leave the recovery of debt in the hands of professionals, who will have to cope to with professional debtors. http://www.resortalia.com/index.php?mod=ver_noticia.php?id=30 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=30 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=30 Can an agreement of the AGM ban the dogs can take the lift? <A HREF="http://www.resortalia.com/index.php?mod=ver_noticia.php?id=29"> </A> This measure is not regulated in the HPA, so to answer this question, we must look at the internal rules of the community and the municipals rules where the community is located. Some municipals rules about transiting of pet usually indicate that in buildings with service elevator or hoist, animals should go up and down these devices, refraining from using the main lifts. In the case of absence or damage of the lifts, always overrides the use of the lift for the person, so if another neighbor meets other person carrying the animal, if the neighbor does not want to climb while the dog, the owner will have to wait for the elevator is empty for use. If the municipal rule does not regulate anything about this issue, the community could decide something similar. The prohibition of use of the lift by dogs could be challenged and won it in court. But, it possible to ban for those cases where it is found that a dog has fouled a lift and has been required by virtue of Art. 7.2 HPA and the owner has not fulfilled the requirement. In this sense, the munipal rules 102 of Murcia said that possesion of pets in homes or other premises is conditional on the optimal hygienic circumstances of his property to the absence of risks in the health aspect, and the absence of discomfort, and a manifest danger to neighbors. http://www.resortalia.com/index.php?mod=ver_noticia.php?id=29 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=29 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=29 CAN A PRESIDENT OF A COMMUNITY RESIGN? <A HREF="http://www.resortalia.com/index.php?mod=ver_noticia.php?id=28"> </A> A common question among owners is to know if the president can resign. The HPA does not recognize the possibility of a unilateral act of resignation, because t that power rests at the general meeting of owners duly called for such purpose. Therefore, the procedure correct in law is as follows: President who wants to resign shall call an extraordinary meeting and to refer the decision to the General Meeting that another owner replaces him/her. It is important to note that if no one wants to stand for the post, the President shall continue until the expiration of the mandate, because it is not expected in the Law to leave the post, not being possible the resignation and the draw. http://www.resortalia.com/index.php?mod=ver_noticia.php?id=28 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=28 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=28 PIONEERING COURT RULE <A HREF="http://www.resortalia.com/index.php?mod=ver_noticia.php?id=27"> </A> First Instance Court number 4 from Gandia has issued a pioneering court rule in our country, sentencing to an owner to not to be able to use his house during a 3 years period, because he used it for parties and after the “denuncia”• of some neighbours because of the bothers. Such actions meant a infringement of article 7.2 of the HPA and the Court has taken it to the end, depriving the owners of the use for the maximum time established in Law., It is necessary to remark that the abovementioned article establishes that when a neighbour carries out unhealthy, annoying, dangerous actions,etc., the President, on his own initiative, or upon request of other owners will send an official letter requesting the cessation of the actions. If the owner persists, the Community will be able to start judicial actions, with the authorization of the General Meeting, called to that effect. http://www.resortalia.com/index.php?mod=ver_noticia.php?id=27 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=27 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=27 New Private Security Law <A HREF="http://www.resortalia.com/index.php?mod=ver_noticia.php?id=26"> </A> Past Tuesday, 10th December, the Spanish Congress passes the Project for the new Law of Private Security. This Law has not come into force yet, given that it has to be approved by the “Senado”, but please let us report some of the most important aspects. This Law gives higher power to the guards given that, in the case that they, in their zone of work, watch the commission of a crime, will be able to identify, frisk and detain that person, in order to notify the Police or Guardia Civil. Regarding the communities of owners, this implies – although we will have to wait the final text – that the guards will be able to carry out such actions on the roads of the private Resorts. By other hand, the text clarifies that these guards will not be able to interrogate this people. We will keep informed about this Law whose coming into force is foreseen at the beginning of year 2014. http://www.resortalia.com/index.php?mod=ver_noticia.php?id=26 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=26 http://www.resortalia.com/index.php?mod=ver_noticia.php?id=26