NEWS

AM I FREE TO RENT MY APARTMENT IN THE SUMMERS IN ANDALUSIA WITHOUT SAYING IT TO THE AUTHORITIES?

I am afraid you are not. Even if you pay your taxes. Unless you do it just once or twice…Otherwise you must  declare your house to be a tourist home

Regularity is the key concept to understand when a dwelling is considered as “tourist home”, i.e., if you are going to offer the house regularly to visitors then we are talking about a tourist housing and, therefore, it should be legalized (registered).

And if you will not usually offer it then there is no obligation to register it.

But what does the “usual” term mean?

Well, we can find two different situations,

  • Presumption of regularity: the law says there is a presumption of regularity when housing is promoted or marketed by:
  • Channels that include the possibility of booking the accommodation (I understand that the law refers to cases when the possibility of booking payment on your platform is offered).
    1. Travel agencies.
    2. Companies that mediate or organize tourist services

In these three cases the Administration will assume that the person who assigns housing makes it regularly, and will not have to prove that the home has been rented more often. In these cases, it is the owner holder who has to prove that his activity has not been usual.

  • Presumption of non-regularity: elsewhere in cases not referred to in the preceding paragraph, it is presumed there is no regularity. However, this is not obstacle for the administration to be able to penalize the owner if they prove that he lets his home on a regular basis. In these cases, it is the administration the one who has to prove that housing is sold on a regular basis. These cases are, for instance, when the owner promotes or markets housing with tourist purposes (whether or not mentioned in the promotion of the housing) through:
    1. Websites that offer no possibility of booking payment on its platform, or
    2. Posters exposed on the balcony of the House, or
    3. Through custodians,
    4. Etc.
  • If there is no tourist purpose then there is no possibility to talk about tourist homes, obviously.

In conclusion, when you are the owner of a house and rent it for tourism on a regular basis, you need to register your home in the registry of tourism of Andalusia. And if you are not going to offer it on a regular basis, then there is no obligation to register it.

As you see, the important point here is the “regularity” term. The law tells us when this regularity is presumed. Therefore, if housing is announced on a website that offers possibility of reservation by payment and you as the owner receive a penalty letter, it can be appealed if you allege and prove that your activity is not usual. But if you have no way to prove it, the sanction will go ahead because the standard presumes there is regularity (without the administration having to prove that the house has been given as housing in more occasions in addition to the one mentioned in the sanction). But the law does not tell us when there is and there is not regularity, and therefore we are given an ambiguous concept. There have been several requests for clarification sent to the Authorities. As far as I know still pending reply.

Finally, just a line about penalties. These could vary from 2,001 euros to 18,000 euros depending on the circumstances.

I HAVE A MORTGAGE WITH BANK FOR MY COMPANY-OWNED HOUSE IN SPAIN, CAN I GET COMPENSATION FOR AN UNLAWFUL “FLOOR CLAUSE”

No, you cannot. As a Juridical person (i.e. a Mercantile Company) your company does not have the profile of a consumer according to the law. Consumers or users according to the law are the natural persons who act with a purpose outside their business, commercial activity, trade or profession. It happens that the Jurisprudence both from Brussels Court and Spain’s ones are judging against the banks based on the existing specific protection to consumers. In other words, companies and individuals acting as traders or professionals are excluded from this protection and their claims would clearly be dismissed. To have a look anyhow, and to see what is a cláusula suelo (the most typical clause declared null by the jurisprudence in favor of consumers), yo can visit my blog here: what is clausula suelo. Companies are not under the umbrella of Consumers protective laws and jurisprudence, as wouldn’t be a lawyer, or a doctor or any other individual who gets a loan to buy his professional premises or headquarters.

TOP TEN THINGS COUPLES GETTING DIVORCED SHOULD KNOW

  1.  The family will be poorer than you were before you divorced!
  2.  It takes both of you to achieve a sensible outcome, if one of you is unreasonable it will increase the likelihood of litigation.
  3. It is much better for the two of you to tell the children that you are separating together, and be prepared to answer lots of questions, so have a plan thought out.
  4.  Be up front about your financial position, any attempt to be less than frank will be found out!
  5.  Being a lousy partner (for whatever reason) does not mean they are a lousy parent. Try and separate the two.
  6.  Select your lawyer carefully, make sure you select one that has the same approach as you.
  7.  There may be tactical decisions to be made early on about jurisdiction so take advice in a timely manner.
  8. Don’t rely too much on what younger children say they want, they have little real understanding of the repercussions and are invariably saying what they think you want to hear (and saying something different therefore to your partner).
  9.  Write and text your partner on the basis that a judge may read it at some stage, i.e. be measured!
  10.  Consider the different ways available to resolve the various issues (e.g. children and money) and discuss these with your lawyer at an early stage.

WHAT HAPPENS TO THE LEGACY OF A BRITON WHO DIES BEING RESIDENT IN SPAIN, WITHOUT A WILL OR WITH A WILL THAT DOES NOT ESTABLISH THAT BRITISH LAW APPLIES TO IT?

The inheritance shall be subject to the Spanish legal system, so that two-thirds of the inheritance will be attributed to his descendants, one of them necessarily divided between the sons/daughters equally and without any charge; and another with the possibility of being freely distributed by the deceased among his children or grandchildren and carry the burden of the lifelong usufruct of the widowed spouse.

But this can be avoided by using the “professio juris” on the will in favour of the national law of the grantor, a measure recommended in all cases where a person, for whatever reason, wants to keep the link between his succession and the legal system of the State of his nationality.

HOW DO FREELANCERS PAY TAXES AND FEES IN SPAIN AND HOW TO CALCULATE THE PER CENT OF THESE TAXES?

Individual taxpayers in Spain pay taxes through the local authorities of their town of residence in Spain. The income tax is calculated by means of applying different percentages depending of net income (profit after deducting expenses of activity) in a year. Each different percentage corresponds to each of the different amounts of net income received, and then the taxation is progressive considering the less income you get, the less tax percentage is applicable and vice versa.

EUROPE RULES AGAINST SPAIN ON NON-RESIDENTS INHERITANCE TAX

On Wednesday, Europe’s High court ruled in a case that may force Spain to lower the profitable taxation of inheritances involving non- residents.

The European Court of Justice stated that, by applying high tax rates in cases where either the deceased or the inheritance’s beneficiary is a non-resident, Spain is in breach of European Union treaties since in inheritances involving Spanish residents only, those rates are considerably lower.

As a consequence, Spain must comply with the ruling, even though it is yet unknown when the country will incorporate it in its legislation.

It has been the European Commission who brought the case before the European court.

The discrimination now declared and ruled as existing, is a consequence of the intricate setup of inheritance tax controlling and collection in Spain. The Country’s regional governments manage and collect these taxes, and many regions sharply diminish or even eliminate the actual  inheritance tax rate in their local a

Nevertheless, according to the regulations in force these regional rules are valid only in cases where both the beneficiaries and donees are local residents. When non-residents are involved, higher rates contemplated in national law are applied.

THE COURT DICTATES THE FIRST VERDICT IN MARBELLA ANNULLING A FORECLOSURE BASED ON A BANK’S ABUSIVE CLAUSE IN THE ORIGINAL CONTRACT

THE COURT DICTATES THE FIRST VERDICT IN MARBELLA ANNULLING A FORECLOSURE BASED ON A BANK’S ABUSIVE CLAUSE IN THE ORIGINAL CONTRACT

The Court of first instance Nr 2 MARBELLA, dictates the first verdict in Marbella (according to manifestation of the judge), annulling a foreclosure based on an abusive clause in the original contract, being this law-firm the one who has made the defence of the defendants , who would soon be subject to eviction thus losing their home.  The judge, accepting the arguments put forward by our lawyer and attorney eliminates the existing clause concerning floor limit to variable rate of interest in the Deed of mortgage. The bank is forced to start the procedure from the beginning recalculating the interests according to the existing interest today, in accordance with the mode of variable interest agreed in the deed of mortgage and once such clause is eliminated.  In Gonzalo Calderon – Lawyers, we can feel satisfied that justice has been done and a family that was in a position to be evicted from their home, remains therein as well as its debt is considerably reduced.