IRPH claim now

Since the EU Court Judgement of 3rd March 2020, the claims for  IRPH are guaranteed provided that the bank never informed clearly and with detail of how this IRPH index works.

This is the same scenario as with the floor or ground clause. The banks never provided the necessary information to the client when contracting the mortgage so we hope that the Spanish Courts will make this IRPH void with the same success rate as with the floor clause  (97% success rate in Spain) which is 100% cases won for Cc Lawyers, we even won for officers from the bank itself that had access to the information and knowledge about this banking world.

As we did for floor clause, which is pretty like IRPH cases, we do not request any retainer or fees in advance for suing the bank and claim IRPH. Furthermore, the bank will be sentenced to pay legal fees in most cases so we trust that we will get our fees directly from the bank and the client will be refunded with the full amount claimed.

The EU Court established that this IRPH has to be replaced by another index that will be EURIBOR, despite that the Judgement does not clearly say Euribor but is the most reasonable solution and the one that the Courts will find. Therefore, the difference between IRPH and Euribor while the mortgage was active will be the amount to claim.

If you are interested in suing the bank to cancel  IRPH, you just need to call, send an email or contact us through our contact form so we can study your case. If this claim is viable, we will send you a contract with our terms and the confirmation that you will not have to pay any fees in advance to us for taking this claim to the courts.

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TRAMPOLIN HILLS-SUPREME COURT APPEAL

We are happy to announce that the Supreme Court just confirmed another Judgement we won for a client who bought a property at Trampolin Hills Golf Resort.

Bank La Caixa appealed to the Supreme Court the Judgement we won in Murcia Courts and the Supreme Court dismissed the bank’s appeal and made our Judgement final.

Our case was based on Ley 57/68 and on the precedent set by the Judgement we won at the Spanish Supreme Court on the 23rd September 2015.

The legal grounds used in our claim against La Caixa are: the bank which issued general bank guarantees has to guarantee the deposits paid by every buyer.

If you are one of those buyers, please contact us and we will study your case and will give you free legal advice.

The bank LA CAIXA refunded the deposit paid by our clients and now they have to pay interests and our clients’ legal fees because our Judgement has been confirmed and is final.

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Apostille stamp-no longer needed in some cases

The apostille stamp is a legalisation or validation certificate required in many cases when presenting documents in another country.

When dealing with an inheritance (Probate, death/birth certificate) or when a power of attorney is required, for example, you might need to get the apostille on your documents.

However, the law changed and within the European Union, the apostille is no longer necessary in some cases for public documents.

Here you have a link to the EU EU apostille information and regulations.

You can read the information posted on the EU web e-justice.europa.eu here too:

 

“Citizens living in an EU country other than their own often need to present a public document to the authorities of the EU country where they live. Such public documents can be, for example, a birth certificate to get married, or a certificate on the absence of a criminal record to get a job.

The Regulation on Public Documents (Regulation 2016/1191), which applies from 16 February 2019, aims at cutting red tape and costs for citizens when they need to present in an EU country a public document issued in another EU country.

Prior to the Regulation, citizens that needed to present a public document in another EU country had to obtain an authenticity stamp (the so-called apostille) to prove that their public document was authentic. Citizens were often also required to present a certified copy and a translation of their public document.

The Regulation puts an end to a number of bureaucratic procedures:

  • Public documents (for example, a birth certificate, a marriage notarial act, a judgment) and their certified copies issued by the authorities of an EU country must be accepted as authentic by the authorities of another EU country without the need of an authenticity stamp (i.e. the apostille);
  • The Regulation abolishes the obligation for citizens to provide at the same time both an original public document and its certified copy. Where an EU country permits the presentation of a certified copy of a public document instead of the original, the authorities of that EU country must accept a certified copy made in the EU country where the public document was issued;
  • The Regulation abolishes the obligation for citizens to provide a translation of their public document. If the public document is not in one of the official languages of the EU country requesting the document, citizens can ask for a multilingual standard form, available in all EU languages, from the authorities of the EU country which issued the public document. This form can be attached to the public document to avoid translation requirements. When a citizen presents a public document together with a multilingual standard form, the receiving authority can only require a translation of the public document in exceptional circumstances. As not all multilingual standard forms are issued in all EU countries, citizens can check which forms are issued in their EU country here;
  • If the authorities of the receiving EU country require a certified translation of the public document presented by the citizen, they must accept a certified translation made in any EU country.

The Regulation deals with the authenticity of public documents but not with the recognition of their legal effects in another EU country. The recognition of the legal effects of a public document is still governed by the national law of the EU country where the citizen presents the document. However, in applying their national law, EU countries must respect European Union law, including the case law of the Court of Justice of the European Union, on the free movement of citizens within the European Union.

Public documents mean documents issued by a public authority, such as:

  • documents emanating from a court or a court official;
  • administrative documents;
  • notarial acts;
  • official certificates placed on private documents;
  • diplomatic and consular documents.

The Regulation covers public documents issued in the following areas:

  • birth
  • a person being alive
  • death
  • name
  • marriage, including the capacity to marry and marital status
  • divorce, legal separation or marriage annulment
  • registered partnership, including the capacity to enter into a registered partnership and registered partnership status
  • dissolution of a registered partnership, legal separation or annulment of a registered partnership
  • parenthood
  • adoption
  • domicile and/or residence
  • nationality
  • absence of a criminal record
  • the right to vote and stand as a candidate in municipal elections and elections to the European Parliament.

The multilingual standard forms to be attached as translation aids to public documents can be requested in the following areas:

  • birth
  • a person being alive
  • death
  • marriage, including capacity to marry and marital status
  • registered partnership, including the capacity to enter into a registered partnership and registered partnership status
  • domicile and/or residence
  • absence of a criminal record.”

This information has been copied from https://e-justice.europa.eu/content_public_documents-551–maximize-en.do just for information purposes.

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ARE YOU BUYING A VILLA IN SPAIN? BE CAREFUL!

There are numerous risks and problems that might go along with the purchase of a Villa in Spain. We are here to tell you how to avoid them so you can purchase your Spanish villa with more peace of mind.

These recommendations are especially aimed at a house in the countryside but they can also apply to any holiday home that is not an apartment or is not in the urban areas.

Beware of real estate agents

Real estate agents will try to get a sale closed asap. So many of them will force you into signing a reserve or purchase contract that you do not understand and that might be against your interests.

Real estate agents can lie about the legal situation of the property, about the certificates or permits needed and even about the actual meters of the property.

Real estate agents might advise you to use their lawyer or somebody that will be your advisor that is on their payroll.

Just for the record, NOT EVERY REAL ESTATE AGENT IS BAD, we have met really good agents during all these years, but you have to be careful.

URBAN AND RURAL LAND

Urban land, means that you are allowed to build on the specific plot of land with compliance to planning and building regulations. So if you purchase a property and the land registry certificate “nota simple” says that it is urban land and the house and the land/plot are registered with the Land Registry, everything is correct.

Rural land, means that you can only build a small house or barn for agricultural use. Rural land is just land to farm, not to build. Therefore, if you are looking for a house in the countryside probably, the house will be in rural land and this is where the problem starts.

The seller probably built the house without the council permits and illegally because they could not build. However, if the house was built a long time ago, the house could be legalised with the passage of time.

 Not every property in the countryside can be legalised. There are restrictions for properties built in natural reserves or very close to natural protected areas and also villas too close to the seaside.

If the villa you intend to purchase is not registered with the Land Registry and has not been legalised or you wish to purchase land to build your house but it is rural land you may never be granted authorization to connect to water/electricity.

So Beware of rural land, because this translates to agricultural land, which provides very strict constraints on what can and cannot be built – and the size of what can be constructed on this plot of land. You could end up paying a lot of money for a piece of land, on which you will never be allowed to build!

So, before buying a property, it is fundamental to check with the land registry (Registro de la Propiedad) to make sure that the plot of land you want purchasing has planning permission so that you can legally build on this property. This will also need to be confirmed with the urban planning of the corresponding city council (AYUNTAMIENTO)

If the property does not have appropriate planning permission and it is recently built, the council can start proceedings against it and demolish the buildings or constructions on the property.

BEFORE PURCHASING ANY VILLA

It is essential to check with the Land Registry because many of the houses illegally built are not registered with the land registry, and if you do not find out, you might end up acquiring just a piece of land according to the land registry.

If the house was built more than 10 years ago, the seller should start the legalisation process. The seller will need an architect to write a report and then go to the Notary to do a New Construction Declaration (Declaración de Obra nueva). If the council has not started proceedings against the property to demolish it, then the Land Registry will register the house with the land and you will purchase a legal property.

THERE ARE fewer METERS REGISTERED FOR THE BUILDING AND/OR LAND

This happens every day. 

“The agent/seller said that the house has 250 meters but the land registry says that it has 170 meters”.

This is because the seller might have built something else after he registered the house for the first time or they registered fewer meters to pay fewer taxes.

Same thing happens with the land. Sometimes you are told that there are 5.000 meters but the land registry has only 3.000 meters registered.

If this is the case, you have to make sure that the seller registers the correct building and land meters with the land registry.

Hire a surveyor/architect to check the property

Before purchasing a villa it is advisable to hire a surveyor/architect to check the property. He will make sure that there are not any structural problems and can also make sure that the meters you are buying are actually there.

NEVER SIGN ANYTHING WITHOUT YOUR LAWYER.

When it comes to property purchase, especially a Villa, you have to be careful and have a lawyer by your side that will check the legal situation of the property and that will help you with the contracts and that will protect your interests.

Having a lawyer from the beginning will be in your best interest because you might be regretting later not having hired one to assist you with the property purchase.

We can deal with all the process on your behalf and make the purchase of your property in Spain a stress-free experience.

Please contact us, every consultation is free!

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Tenant Eviction

If you rented your property or commercial premises to a company or individual and the tenant is not paying the rent agreed in the contract, even if the tenant owes you just one month rent, you can take them to court and request the tenant eviction so they leave your property or commercial premises.

The eviction procedure can cover just the eviction to make the tenant leave the property or premises or it can also include the claim of the debt owed by the tenant.

If this is the first time the tenant is delayed with the rent, once you have sued him/her and the court has served him/her with the eviction claim, the tenant can pay all the amounts due and stop the case. If the tenant does that but some time after he/she stops paying the rent again, he/she will not have the option to pay the debt to the court and stop the eviction against him/her for the second time.

There was a recent Act reform and once the tenant is served with the eviction claim, if he/she does not contest the claim, the Court will directly fix the eviction date and there will not be a trial so the case will be finished fast and you will be able to get you property back very fast.

After sending the eviction claim to the Court, we will receive the Court acceptance with the trial date (that will be held just if the tenant contests the claim) and the eviction date when the tenant must leave the property. So you will be informed about all the dates by the time the claim is accepted by the court.

Our advice is to take legal action if the tenant owes you more than 2 months’ rent because our experience tells us that the tenant will not pay again and you will be wasting your time instead of renting the property to somebody that will pay for it.

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Check our top ten house buying tips

  1. Hire a Spanish English-speaking Lawyer to protect your interests. If you hire a lawyer that you trust, you will have to forget about the following tips.
  2. Request your NIE number as soon as possible
  3. Open a bank account in Spain
  4. Request an information certificate “Nota Simple” to the Land Registry for the property you wish to purchase
  5. Read very carefully the purchase contract and especially check the completion term with the Notary, who pays the fees/taxes and if the agent included a commission
  6. Make sure to get all important information translated into your language. Many clients make mistakes because the documents are in Spanish and they regret it later
  7. If you are purchasing an off-plan property, make sure that the payments on account/deposits are guaranteed
  8. Make sure that the property is not rented and that there are not any tenants
  9. Ask from the seller the homeowner’s association certificate to make sure that there are no debts with them
  10. If you are purchasing an off-plan property, make sure that the property has the construction completion certificate and habitation permit. If the property is used, you will need to request the occupation permit.

Purchasing your new property in Spain will be much easier with our help. Contact us! Every consultation is free!

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RECLAMAR GASTOS ESCRITURA HIPOTECA

Según la reciente Jurisprudencia del Tribunal Supremo, éstos son los gastos que debe asumir la entidad prestamista como parte interesada:

  1. Gastos notariales: suele representar entre el 0,1% y el 0,5% de la responsabilidad hipotecaria. Podemos recuperar la mitad de esta partida.
  2. Gestoría: Suelen rondar aproximadamente los 400 euros. Podemos reclamar que nos devuelvan la mitad de lo pagado por este concepto.
  3. Gastos de Registro de la Propiedad: no suele superar el 0,2%. Tenemos derecho a recuperar todo lo abonado en costas de inscripción.
  4. Respecto a los gastos de tasación del inmueble, podríamos recuperarlos si ya disponíamos de una tasación en vigor y válida antes de pedir la hipoteca (efectuada por una sociedad homologada) y el banco la rechazó y nos obligó a contratar los servicios de otra agencia para tasar la vivienda de nuevo. En este apartado hay algo de contradicción por lo que podría variar la jurisprudencia en los meses próximos. Sin embargo a día de hoy no es posible reclamarlo si no se tenía otra tasación previa.

Todas las consultas son gratuitas por lo que si usted está interesado en reclamar el pago de estos gastos sólo tiene que llamar, enviar una consulta o un correo electrónico para estudiar la viabilidad del caso, y le daremos una respuesta.

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IRPH-PRÓXIMA RECLAMACIÓN

Las reclamaciones de los préstamos bancarios basados en el índice IRPH sufrieron un duro revés cuando  el Tribunal Supremo se pronunció a favor de los bancos sobre el IRPH el 22 de noviembre de 2017 sin embargo no todo está perdido ya que estamos a la espera a una Sentencia del Tribunal Superior de Justicia Europeo (TJUE) que se reúne el próximo 25 de febrero de este año 2019.

Existe además un Informe de la Comisión Europea sobre IRPH a fecha del 19 de Septiembre 2018 que se posicionaba a favor de los clientes de IRPH exigiendo al banco los mismos requisitos que en el tema de las clausulas suelo y era que deberían haber entregado e informado antes de firmar el préstamo, sobre de la el funcionamiento del índice IRPH, su evolución a lo largo del tiempo, y una comparación con respecto a otros índices como por ejemplo el Euribor y como esto no lo hizo ningún banco va a pasar como con las clausulas suelo que serán todas nulas.

Por tanto son muchas las posibilidades para que en los próximos meses podamos tener una Sentencia favorable de Tribunal Superior de Justicia Europeo (TJUE) sobre esta cuestión y por tanto merece la pena empezar a plantear una posible demanda ya que de producirse una Sentencia favorable habrá un aluvión de reclamaciones y por tanto mucha demora en los Juzgados y Tribunales, por lo que reclamar los primeros tendrá su beneficio.

Los clientes afectados por el IRPH que quieran recuperar las cantidades pagadas de más deberán instar judicialmente la nulidad de la cláusula en la que se incluye como índice de referencia el IRPH. Además de la reintegración de las cantidades abonadas de más, conllevará la eliminación de dicha cláusula y la aplicación de un tipo pactado que lo sustituya que normalmente será el Euribor.

Los afectados por el IRPH podrán instar judicialmente la nulidad de la cláusula en la que se incluye como índice de referencia el IRPH que conllevará su eliminación y por lo tanto, la aplicación del tipo pactado que lo sustituya, así como la reintegración de las cantidades abonadas desde la constitución del préstamo hipotecario aplicando el índice de referencia establecido.

Por tanto la recomendación de este Despacho es comenzar a preparar la demanda porque una vez tengamos una sentencia favorable del Tribunal de Justicia de la Unión Europea podremos demandar con un 100% de posibilidades de éxito como en el caso de las clausulas suelo.

Como el éxito si tenemos una sentencia favorable del Tribunal de Justicia de la Unión Europea estará prácticamente garantizado por parte de este Despacho no se pedirá provisión de fondos para interponer la demanda pero además como el banco seguramente sea condenado en costas cobraremos directamente del banco recuperando usted íntegramente todo lo reclamado.

Si usted está interesado en demandar judicialmente la eliminación del IRPH, sólo tiene que llamar, enviar una consulta o un correo electrónico para estudiar la viabilidad del caso, y tal y como le hemos indicado preparar la demanda hasta que tengamos la Sentencia del Tribunal de Justicia de la Unión Europea. Si finalmente no tenemos Sentencia favorable no tendrá que pagar cantidad alguna por el estudio del caso.

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CLAIM FOR MORTGAGE EXPENSES IN SPAIN

According to recent precedents and case law from the Spanish Supreme Court, the credit company or bank as the interested party in the mortgage agreement has to be in charge of paying:

  1. Notary fees: the Notary fees for authorising a mortgage are between 0,1% and 0,5% of the mortgage liability. The mortgage liability is the mortgage amount plus calculation of interests due to arrears and also the legal fees in case the bank needs to enforce the mortgage agreement legally. According to the Supreme Court, we could claim 50% of these Notary fees for authorising the mortgage.
  2. Gestoría (administrative advisors): Their fees are 400 Euros approximately. We can claim 50% of these fees.
  3. Land Registry fees: these fees normally are not higher than the 0,2%. The client has the right to claim the fees paid for registering the mortgage against the property at the Land Registry.
  4. Regarding the fees the bank charges for the valuation of the property, we might be able to get them back if you already had a valuation (and done by an authorised company) before requesting the mortgage and if the bank rejected your valuation and forced you to get a new one. This might be the point more controversial and this might change in the future with new precedents. If you did not have a valuation for the property before the bank got the valuation, you cannot claim these expenses to the bank.

If you are interested in claiming the bank to pay you back these fees you just have to call us, send us an email or message through our contact form and we will study your case and advise you for free.

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IRPH

Claims against banks for IRPH index suffered a setback when the Spanish Supreme Court ruled about IRPH in favour of the banks on the 22nd November 2017.

However, the cause is not lost yet because we are expecting Judgement about it from the European Court of Justice and we just heard that the lawyer from the EU court gave his decision regarding IRPH and he is in favour of refunding the IRPH to the clients if the bank did not inform them about this mortgage index. This is just the lawyer advice and recommendation but the EU Court will give their decision in some months. The good news is that normally the EU Court follows the EU Court lawyer’s advice in 4 of 5 cases. But the EU court is independent and the lawyer’s advice is not binding to them.

So we need to keep waiting for the EU Court decision regarding IRPH but we have hope and high probabilities that we will be able to claim the IRPH to the banks.

In addition to the EU Court lawyer’s advice, there is a report published on 19th September 2018 about IRPH from the European Commission that was in favour of the clients. In the report, the Commission demanded the banks apply the same criteria as for the minimum interest clause (clausula suelo). This criterion was that they should have informed the client before signing the loan/mortgage about how this index IRPH works, its evolution in time and a comparison between other indexes such as Euribor. Unfortunately, the banks did not hear these demands and hopefully, this mortgage condition will be declared void as happened with minimum interest clause (clausula suelo).

We have many chances to have a Decision from the European Court of Justice in favour of the clients in the next months. Therefore, we should start considering taking action against the banks for IRPH because if there is a Decision from the European Court of Justice in favour of the clients, the Courts will have a flood of claims and they will end up collapsed, so being the first ones to claim will have its benefits.

The clients who have a mortgage who want to get back all the amounts paid due to IRPH index must send a claim to request to the Judge to make the clause about IRPH void. Apart from claiming the amounts paid for this, the clause will be taken off the mortgage and the index will be replaced for another index, Euribor usually.

Our advice is to start looking into it because once we have the Decision from the European Court of Justice we will be able to sue the bank with 100% chances to succeed as for minimum interest clause (clausula suelo) claims.

We have success guaranteed if we have the support of the European Court of Justice we so we will not ask for any advance of fees or retainer to send the claim to Court. In addition to that, the bank will probably be sentenced to pay for legal fees so we will directly get our fees from the bank and the client will receive all the amounts claimed in full.

If you are interested in claiming the bank to cancel the IRPH from the mortgage you just have to call us or send us an email and we will study your case for free. Then, in the event we get the Decision from the European Court of Justice in favour of the client, we will send the claim to court straightaway. If we get a Decision in favour of the bank, you will not have to pay anything to us for studying your case.

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