A row between the Secretariat of Labour and Immigration and the Central Police Station is threatening to discourage hundreds of potential property buyers from taking the plunge. The former has ruled, against the opinion of the latter, that the obligatory NIE numbers can no longer be applied by representatives with a power of attorney and so personal attendance is mandatory (as from the 3^rd Jan 2012).

Although the reason behind the disagreement appears to be how both Government offices interpret a particular norm, the consequences can be devastating given that NIE numbers are now required for almost anything and many people will just not feel that Spain is a country worth investing in if you need to queue up at 6 AM at police stations, get a ticket, walk to a specific bank to pay the fee and then go back to the police station to apply for the number: buying property, setting up a business, signing up for a job and many other legal matters just don’t deserve this third-world treatment. In Madrid, a city that aspires to become a European financial hub, you can expect a 3 month wait for an appointment to apply for the NIE.

Also, there is a total lack of uniformity in what documentation is required: for EU and Non-EU citizens alike, some police stations in the Costa Blanca are asking for notarized documents of the property one wishes to buy, others will accept a reservation contract (original or copy) and proof of payment of deposit and if you are not around to pick the number up, you will have to give an official power of attorney to someone if you are in Ibiza. The random nature of documentation requirements is perplexing to professionals and unbearable to investors.

Spanish Consulates, not particularly equipped to assist investors, have been commissioned to process applications and return an NIE number within 5 working days (RD 557/2011), a tall order for some of such offices not used to dull admin work. And that is if you have a consulate nearby, as cost-cutting has meant that the Spanish Government has closed many (e.g. Manchester and Hamburg), so if you happen to be a billionaire currently in Vladivostok looking at buying a property for a zillion euros that you have already visited and reserved, and you are told that you need to fly to Moscow, or back to Marbella, to apply for the NIE that you forgot to get whilst property hunting, then Spain has a problem.

The property industry is dismayed by what are probably the weirdest, craziest and most idiotic laws around Europe, and is hoping that as with most things, common sense will ultimately prevail.

The Provincial Audience in Cordoba recently passed an interesting sentence in a dispute between an off-plan property purchaser and a developer, on account of the inability of the former to complete the purchase due to lack of financing and the unwillingness of the latter to refund the deposit, on those grounds.

The buyer had argued that he was a victim of the financial crisis and requested a full refund, considering the downturn of the economy as an Act of God. The developer, in turn, counter-sued and requested that the contract was complied with (specific performance suit) and, only in the event that the buyer was declared unable to complete, due to insolvency, the contract was terminated and the deposit kept.

The courts started stating some general observations, applicable to most contracts, whereby:

1. It is a well-known fact the property buyers require financing to complete property deals.
2. Prior to entering into an off-plan property contract, buyers have a duty to establish their credit-worthiness and the financial means available to them.
3. Obtaining financing from a lender, where the balance of the price is not readily available, is a buyer’s obligation.
4. To the extent that the buyer is able to complete, the courts will not examine the required diligence in the buyer’s activities or actions in respect to compliance with his obligations.
5. As a consequence, in the event of the buyer’s insolvency, he still has an obligation to complete the sale and should this not occur, the developer will be entitled to formally terminate the contract (which is exactly what happened here).

But then, in a solomonic ruling, established that indeed the crisis could be considered as a mitigating factor, and upheld the following considerations:

1. That penalty clauses are envisaged by parties as a means to fix the value of the loss, in case of full or deliberate contractual default.
2. That in this economic day and age, the financial cataclysm that has affected lenders and the drastic downturn of the property market are events that property developers cannot stand aloof from, even if they can be considered to be “risks of the trade”.
3. That although in this case the buyer is the victims of the debacle, property developers are well aware that it is now no longer possible to find a buyer at year 2007 prices, and thus cannot stay in “limbo”, estranged from reality.
4. That in this case, the buyer did not default fully but partially, as a result of events outside of their control, and therefore the penalty clause has to be reduced as a result of the necessary sweetening  or mitigation of the degree of default, to avoid unjust enrichment.

The Cordoba courts, on account of the above considerations established that, notwithstanding the content of the penalty clause, it was fair and equitable to reduce it by 50% as the buyer had not fully defaulted. 

Having met with dozens of victims of the Equity Release fraudulent scheme, we asked some of them if they would be happy to be interviewed; the result was very positive, with some willing to be interviewed every week, if need be! 

Julia Hilling (88) and Peter Cosgrove (78), two Rothschild + Hamilton’s victims, have no more money to pay to the bank and have not been yet forced out of their homes. Listen to their stories here.

With the advent of the crisis and the coffers of the Spanish Inland Revenue drying up fast, foreign property owners now seem to be the target of a renewed tax levy campaign, judging by the content of tax office letters received by a few clients. Because whereas before property owners that did had never paid Non-Residents Property Income Tax, an annual tax based on the ratable value (valor catastral), were deemed to be under the radar of the taxman, they are now being specifically pinpointed.

The letters sent by the Hacienda are not openly threatening, if that is possible at all, but a reminder that taxes have to be paid by virtue of owning a Spanish property. The written request states: “based on the information we hold, it appears that you have owned a property in Spain during the years 2008, 2009, [...], and, according to our records, you have failed to submit a tax return for Non-Residents Income or Wealth Tax“.

The letter then says that this is neither a tax request nor the commencement of an investigation. However, they seem to have all the information owners were hoping would not be picked up by the taxman, not until the property was sold (time when it would have had to be disclosed, and taxes paid up, if one wants to claim the 3% Capital Gains Tax retention back successfully).

This obviously does not affect tax-abiding property owners, who file they annual returns prior to the 31st of December of the following year (2010 tax is to be paid by the end of 2011), and are expected to pay an average of between €200 to €800, depending on size of property and the municipality; with larger villas paying substantially more. Resident property owners, on the other hand, are exempt from this tax.

Wealth Tax to be reintroduced in 2012

With effect as from 2011 and during the next year, property owners will be taxed again on Property Wealth Tax, having to submit the tax returns in 2012 and 2013, respectively. Residents for tax purposes will have tax breaks on their habitual home, up to a certain value, and an allowance of €700,000, which means that most Spanish residents will effectively be exempt from it.

Finally, nonpayment of due taxes will attract penalties, surcharges and interest and ultimately, a charge on the property so, to avoid unpleasant surprises, we suggest you act promptly by talking to a qualified professional.

If you have questions, you can read this FAQ about non residents tax in Spain.

Documents

• Non resident tax letter being sent by the taxman (PDF – 238Kb)

It sometimes happens that, when you start off a new business venture where reputation is considered to be crucial, you need to start off with a slate cleaner than clean. Of course, it is quite possible that one has left a few debts unpaid, particularly with lending entities (who cares, really!) and perhaps a bit of social security or taxes, as they are the last to the get paid, generally.

What is just defies prudency and common sense is starting off a business consisting on sorting out other people’s real estate problems when you have a few skeletons in the cupboard that are rattling like a dildo in a biscuit tin.

Because, this is exactly what is happening with Restructuring & Recovery Consulting Group, fronted by Mark Farber. The story (PDF)(the real one might I say) is actually one that he has twisted to make it one of his case histories, the truth being far from what he claims it to be.

Indeed, the project was located in Inland Andalusia, in Casarabonela to be accurate, it was certainly close to 20 hectares, and changes in regional planning laws did render the project unacceptable (no mention of the crisis here nor running out of cash). And this is as far you can stretch the truth, as the rest is a load of imaginative B.S.

Not only was there no proper project in place, but also, nobody proceeded to immediately discuss the situation with local and regional planning authorities, and no agreement was reached that re-zoning would be acceptable if the project was repositioned as a tourist oriented resort rather than a straight residencial developement.

And, on top of the pile, you get the worst lie of all: a large amount of money was also owed to a local savings bank which had already begun the process of recovery. Mark, it is Lawbird’s clients who are owed the money, and they are a British couple and not a local savings bank, unless they have morphed into some rural lender in the last couple of weeks. And they are owed close to €1,300,000 which seems they will never get if, as your lawyers say, the company that owns the cortijo (Rural Excellence S.L.) will be swallowed by the bankrupt Ecur Constructora Urbanizadora S.L., which owns I assume also part of Restructuring & Recovery Consulting Group, given your statements.

And finally, you have not been instrumental in negotiating with the savings bank to refinance the debt, because there is no such thing. If any, you have been instrumental in keeping my clients like a mushroom, in the dark and being fed bullshit. And unpaid. Oh, and also, killing a good number of avocado trees by failing to water them…

See you in court!

Clients Appreciate our Nordic Values. They differentiate us from our competitors.

Anne-Lise Zahl Sørensen, NORDEA BANK.

This supremacist statement embedded in Nordea’s INTERNATIONAL PRIVATE BANKING in LUXEMBOURG prospectus is not only an insult to Nordic people, but also probably the last straw for many close to losing everything (everything as in the Oxford English Dictionary), to the bank in question. Not even the Nigerian scam has wreaked so much havoc on one single individual as has the Nordic “in-house specialist and experienced portfolio managers”.

But the infamy of this statement and the severity of the insult it projects over the victims of the Nordea Bank Equity Release could be insignificant compared with what could happen if the Spanish authorities (Spanish Anticorruption Prosecutor and the National Tax Office) picks up on one aspect of the programme that the US Justice Department and Internal Revenue Service (IRS), in a case brought against the promoters of a similar scheme, identified as being

“conspiracy to defraud the United States and to commit wire fraud, conspiracy to commit money laundering and tax evasion, by promoting fraudulent scheme…additionally the Hirmers attempted to strip the equity out of one of their homes by granting a bogus mortgage to a Panamanian nominee entity they controlled…the use of abusive trust schemes and fraudulent debt elimination tactics intended to conceal income from the IRS isn’t tax planning; it’s criminal activity. There is no secret formula that can eliminate a person’s tax obligations…today’s verdict reinforces our commitment to every American taxpayer that we will identify and prosecute those who promote illegal financial transactions designed to evade the payment of taxes.”

Now that money is scarce, legal instructions that could have otherwise been fulfilled, or at least carried out with some diligence to accommodate a more or less agreeable solution, are finding their way to recourse via professional indemnity (PI) obligations and ultimately, the insurance in charge of covering lawyers’ negligence. Redress against negligent lawyers, which is extendable to Notaries, Registrars and Procurators, is not new and there is substantial precedent that gives us an idea of how Courts are viewing the different cases.

Instances of negligence are varied but the following can be identified, some to do with Court action and others, to the incompetence of the lawyer in respect of applicable law or procedures:

• Missing procedural deadlines or time limitations to bring an action (called Diary Oversights). For example, failure to respond to a claim prior to the deadline set by the Civil Procedural Act or, file an action in tort within 1 year from when the incident occurred, thereby losing the opportunity to obtain a Court ruling on the matter. A clear example is one where lawyer fails to advise the family of a person who drowned, of their right to bring an action in tort against the owners of the swimming pool (within 12 months).
• Not filing an appeal, full stop. The lawyer was not late in filing, he simply did not file.
• Not advising a client of the non-feasibility of an action due to expiration of his right to bring a claim: particularly relevant in relation to the award of Court costs, which can be substantial and, obviously avoidable, had the lawyer advised properly on the opportunity not to bring an action.
• Not claiming “lost profit” on a judicial action when it clearly lent itself for bringing such petition: a good example to cite is that of the sole-trader owner of a tractor that was destroyed in an accident caused by the other party. Although the lawyer filed a claim for damages to the tractor he missed the opportunity to claim for non-realized profits as a result of the sole-traders inability to work.
• Inadequate technical approach to a legal matter and continuous string of errors, also technical, that provoked a multiplicity of procedures, making it impossible for the client to obtain legal redress.
• Rather laconic exposé of the alleged responsibilities of the defendant and incorrect display of evidentiary material, showing little understanding of the case itself. The lawyer, it seems, had other things in mind, or nothing at all, when dealing with this case.

 And so, what happened to the lawyers in these cases? Well, in all of them Courts determined that the lawyers’ negligence warranted compensation that was to be calculated by reference to the “loss of opportunity”, which is not easily measured but for reference to conjecture, best known as Absolute Probability Judgment, where the Court is faced with the assessment and quantification of the error, and its impact on a result had the error not occurred: in other words, what would have the chances of a claimant been had he been properly represented? Common Law here is probably far ahead as it resolves these issues under what is deemed a judgment of feasibility of the case, which requires a study into the merits of claimants arguments’. In this jurisdiction, it is known as the Case-Within-a-Case Rule, according to which, a legal-malpractice claimant must show that, but for the lawyer’s negligence, the claimant would have won the case underlying the malpractice action.

And what about time to bring an action? According to all but one Court rulings, legal negligence or, better named, contractual malpractice, arises from contract, and not tort, which would make a huge difference: 15 years vs. 1 year.

The Equity Release Victims Association (ERVA) – (www.erva.es) is now up and running. Having been formally incorporated last Wednesday, through a Marbella Notary Public, it has, among its aims, denouncing the magnitude of the infringements committed by a number of banks, mostly Scandinavian who, in clear breach of applicable legislation (regulatory, consumer protection, civil, banking, financial, and not the least, ethical), devised a tax-evading scheme that would be offered to pensioners to profit from them, using the illicit excuse that it was suicidal not to have a mortgage registered against their properties.

The ERVA will be formally filing claims with the appropriate Government offices, requesting formally not only that these products are banned in future but also, that the banks that offered them are disciplined in accordance to the seriousness of the offences committed. Of particular importance are:

• Denunciation at the Spanish Prosecution Office (Fiscalia), requesting that a full investigation is conducted into the alleged tax-evasion proposition that constituted the main selling feature of these Equity Release schemes, and consequently, the well-defined target market this scheme was aimed at: financially conservative and vulnerable pensioners owners of an unencumbered retirement homes. Equally, of great significance is the financial state these schemes have left countless numbers of victims, as well as the major implications for their state of mental health and well-being  (typically, the infliction of mental and emotional anguish of being deprived of their life-savings ultimately and more immediately, a roof to live under). Even if these banks are no longer offering these obnoxious products, the writ will specifically request that the Spanish Prosecution Office, by application of article 26 of the 34/1988 Publicity Act, in relation to article 29, pursues the cessation action to prevent them from offering them in future.
• Denunciation at the financial and insurance regulators (Comisión Nacional Mercado de Valores and Dirección General de Seguros), and the Bank of Spain (Banco de España), who will be requested that a thorough study is made into the validity of a contract of Equity Release, not approved for use in Spain under 2007 Reverse Mortgages Act and prior to its enactment, by the uses and customs of banking practices (as the Spanish equity release equivalent was not regulated formally until then although, it was specifically described as a product to allow asset “rich” pensioners access to this wealth, all the while having full guarantees of living in the property for the rest of their lives). The ERVA will specifically request that disciplinary and exemplary fines are imposed on the infringing banks, inclusive of a temporary suspension of their activities within Spain.
• Denunciation at the Regional and National Consumers Association, to obtain a ruling condemning the publicity as false or deceptive advertising and fining these entities proportionally, in accordance to article 36 of the 26/ 1984 Consumers and Users Protection Act, applicable prior to 2007. Given the impact, relevance and geographical scope of the mis-selling of Equity Release schemes, the ERVA should request that the infractions committed by these banks are deemed “very serious” and the highest possible fines imposed (from €600,000 to 5 times the amount of the product mis-sold, as well the closing of the branch offices of the offending banks wherefrom the products were sold, for up to 5 years).

The list of proposed actions is not exhaustive and may include other proposals in the countries of origin of the offending banks.

Last Sunday morning, while cycling around La Cala area, I spotted what looked like an isolated bored Spanish donkey with what looked like a kind of a smallish stork on its back, the latter presumably going about the job of cleansing the animal from parasites, and the former happily accepting it. This is what they call symbiosis, or a mutually beneficial relationship involving close physical contact between two organisms that aren’t the same species. I took some pictures but the mobile was not powerful, unfortunately. In a strange mental composition exercise whilst negotiating the curves, I immediately thought of more than a handful of Spanish property developers and Mr. Carlo S. Mottola, in what could be one of the biggest cases or fraud in the Spanish property sector, and the relationship they had struck to bring misery, anguish and pain to, once again, off-plan property buyers. On the one side of the fraud, sitting comfortably on top of the donkey, Mr. Mottola, the man behind the bogus Compagnie Des Garanties de Du Luxembourg S.A., Company of Guaranties Ltd. and Cauzione, flouting every mandatory insurance legislation provision and without a penny behind him, and with the Spanish Insurance watchdog DGS (Dirección General de Seguros) warning about his activities as early as 2003 (and who incidentally have done nothing since), erected himself as the provider of surety contracts worth tens of millions of pounds knowing full well he could have never honoured them, if we notice the following:

1. His Luxembourg company, boasting a share capital of €24,283,800 on the letter head of the policies given out by the hundreds in the years 2003-2008, had actually been referred to the Courts on the 10th of November 2003 by the Luxembourg Prosecution Service and, after a remarkably quick Court process (which we can only dream of here), the company was “pronounced dissolved and ordered its liquidation” for what was deemed as grave legal contraventions, these being not submitting a Balance Sheet nor a Profit Loss Statement since the company’s incorporation, in 1999, nor having a known address since the company was reported to the authorities in 2003. Just as his insured property buyers have been used to, he failed to turn up to the hearing…
2. His accountants in London, Arram Berlyn Gardner, had already warned, in early 2009, that the company was not a viable enterprise.

   

3. Lack of any recorded payments on claims (or perhaps one or two smallish at the beginning to give himself a credibility that he lacked) to any of the hundreds of people who would have been entitled to a payout.
4. Record of payments made to companies under his control, or directly related to him, one in the Channel Islands and the other one in the US: And again in 2008, another payment: And what about the American company?

At the other end of the scam, the Spanish developers, the donkeys in the symbiosis relationship and in real life too, real quadrupeds who, after having their applications for bank guarantees or insurance policies turned down by the likes of Santander, BBVA, AXA, Zurich and many others, resorted to the unscrupulous Mr. Mottola, who would, oblivious to what is right or honourable, and legal too, print off as many policies as required to provide sham covers to the unsuspecting property purchasers. If you wish to know what these policies look like think about the lottery prize certificates that Nigerians send you by email on a monthly basis, when you strike lucky with them: they actually look genuine in comparison to Mottola’s “monopoly” policies.

But the net is now closing: already, the Malaga High Court, in a civil ruling involving a developer currently serving time for tax fraud and indicted on further corruption and swindle charges, stated that: Lastly, to have a perspective on the behaviour of Naviro in this matter, we need to refer also to the surety policy invoked by the defendant, which happens to be completely bogus for the company “Compagnie Des Garanties S.A. is not authorized to operate in Spain, as has been proven in 2 reports, one from the Bank of Spain and a further one from the Insurance Directorate General. And recently, a story about one bogus insurer which is being investigated by the police for insurance fraud for having offered bogus insurance cover and will be presumably soon accused of criminal swindle. The lady in particular was registered with the Companies House to…distribute electrical appliances. Compagnies des Garanties Ltd. is equally currently registered in Spain as a branch operation, and duly registered too with the tax office to carry out the activity of…Maintenance and Repairs of Motor Vehicles. This further dent on Spain’s already appalling reputation for not looking after foreign investors bodes badly for the Government’s plan to bring back foreign investment (a child would see this), not to mention nationals of Spain who have also been caught out in this scam.

And so, who will pay for this? Well, difficult to say now but it seems that a the spectrum of responsibilities will range from possibly criminal to civil and potentially, administrative, given the supervisor’s failure to bring this man to justice, but more importantly, for having allowed him to operate since he was discovered, back in 2003!

And what does the law say?

• Article 4.2 of the 2004 Private Insurance Organization and Supervision Act (Real Decreto Legislativo 6/2004, de 29 de octubre, por el que se aprueba el texto refundido de la Ley de ordenación y supervisión de los seguros privados) states that any “contracts signed with an unauthorized entity, or one whose authorization was revoked, will be deemed null and void…in the event of a claim being registered the persons or entities responsible will have to pay as if the policy had been valid…The obligation will be joint of the company and any persons who would have authorized or permitted the conclusion of a contract.”
• Article 48.3 of the same, when stipulating the administrative fines, states that…the dispositions of this article will be understood to be applicable without prejudice to any other responsibilities, including criminal, that may be incurred in.
• Article 248 of Spain’s Penal Code: A person who, with the intent of gaining a benefit, uses deceit to produce error in another person, inducing him/her to dispose of own or third party valuables, will be liable to be sentenced to imprisonment for 1 to 6 years.

And what about the regulator, the DGS, who did have knowledge of this since, at least, 2003? In my opinion much more could have been done, in 9 years, to prevent this individual from ripping customers off through unscrupulous developers even if that meant filing a denuncia via the Prosecution Service, a job that would have taken a civil servant one morning. To our knowledge, Mottola’s offices are still open, except for the processing claims side of things, which is what he never intended to anyway. This inaction is consistent with nonfeasance in public office, or negligence, which would constitute grounds for a claim against the Spanish State. Documents

• 2007 audited accounts (PDF 275 Kb)
• 2008 and 1st half 2009 accounts (PDF 466 Kb)
• 2005 French Branch of Compagnie des Garanties Forced Liquidation (PDF 1,095 Kb)

Today I’m going to talk about a case that, without a hint of doubt, will trigger someone into spewing the type of nonsense “that Spanish judges will favour Spanish nationals at the expense of the poor Brits, major investors in Spain and yet victims of a judicial system clearly biased, racist, etc.”

Well, the case is being heard in Tenerife where they also use the word “guiris” (the nick given to any foreigner originally from above the parallel running across central France and typically blonder than Spaniards), but where they have coined an equally derogatory name for mainland Spaniards: “godos”, which derives from “visigodos”, or Visigoths, post-Roman inhabitants of Spain and who originally came from Germany and Scandinavia and supposedly, invaded them many centuries ago.

So going to the “legals” of the case itself, I will mention that it involves the following:

• A deceased British property owner resident and re-married in Spain.
• Children from both marriages, 2 from the first, both British nationals, and a further Spanish national from the last.
• The existence of a Spanish will leaving everything to the Spanish son.
• The absence of property in the United Kingdom but the existence of a few real estate units in Tenerife, under his name.
• And a Spanish widower unwilling to share the estate…

Our clients, both British citizens and children of the deceased, from a previous marriage, and who had been left out of an inheritance they claimed they were entitled to, hired us to study the case and bring an action for the judicial recognition of their right to the estate of their late father.

In application of Spanish laws, but most importantly, pursuant to the findings of a Spanish Supreme Court ruling, it so happened that they had an entitlement, given that, although testators in England enjoy a basic freedom of testamentary disposition (under certain constraints), Spanish inheritance laws stipulate that a “legitim”, or minimum  portion of the estate, should go to the children where the testator was

1. British and
2. had no assets in Spain, due to a complex application of conflict or law rules that involved bouncing the matter to and fro between Spain and England.

Under Spanish provisions, one third should be going equally to all 3 children, and therefore our clients would be entitled, on paper, to 2/3 on 1/3, which works out at 1/9 each. And whereas the deceased’s Spanish widower opposed to sharing, her lawyer saw it convenient to settle with the above figures in mind, be means of a cash payoff.

Their proposal, not negligible given the size of the estate, was argued against on the basis of what was we thought is a sound theory: that the testator had left out his British children on the basis of what he thought right and lawful, under his personal law, but that had he known that Spanish laws also protected his British children in the event of dying in Spain, as a resident and holding only Spanish property, he would have wanted his estate to be bequeathed in equally shares.

And this is the direction of our petition, that they inherit 1/3 each, failing which we will still settle for the lesser portion of 1/9 each. And what about the risk of not settling? Since we filed a “cascade claim”, having the first petition for the higher portion dismissed (and the second accepted), would almost necessarily mean that legal costs would not be awarded: still worth the try I would say!

And what about the ethnically discerning judge? If he is Canarian, he will surely have nightmarish nights trying to choose between a half-Scottish half-Spanish defendant, the latter half originally from Germanic and Scandinavian lands, according to Canarians, and 2 half-Scottish half-Irish claimants, the first half also with substantial “Norsemen” blood, who are the Germanic people who inhabited Scandinavia in the Middle Ages which means that, by reference to blood lineage, we have solved the Judge’s tribal dilemma by boiling it down to a pure dispute between Scandis. Init Your Honour?