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Archive for July, 2009

Developer Aifos Announces it has Gone Into Voluntary Receivership

July 30th, 2009

Rumours were confirmed last Wednesday 22nd of July when Aifos’ petition to file for receivership was formally accepted by Malaga’s Mercantile court number one. On the following day Aifos issued a press release by which it informed they had filed for voluntary receivership.

As we had previously pointed out in prior communications, filing for administration does not equate to bankruptcy as has mistakenly been reported at large e.g. In Spain’s highest profile administration procedure to date, involving well-known developer Martinsa-Fadesa, this company will restructure its 7 billion euro debt and will continue trading normally within the next years.

What developer Aifos has sought is for creditor protection allowing it to buy time to restructure its financial commitments. However, the mercantile judge ruling on the matter may ultimately decide at a later stage that Aifos should file for bankruptcy if it is deemed not to be able to continue trading. This will be decided upon in the ensuing procedure.

As from the time the official announcement is published in Spain’s Official Law Gazette (B.O.E.), creditors will have a deadline of one month to join Aifos’ Creditors list. (EDIT:  Today 31st of July it has been officially published)

Off plan purchasers may fall in any one of these three categories:

  1. Purchasers that signed a Private Purchase Contract and have not had their off plan dwelling delivered.
  2. Purchasers who had already withdrawn from their Private Purchase Contracts and had filed a lawsuit with no final ruling issued yet.
  3. Purchasers who had litigated already and had a final ruling on their case but had not been refunded yet.

As a general rule everyone who purchased a non-delivered property through developer Aifos, whether having litigated or not, should retain a lawyer (and court agent) to join the Creditors’ list and/or litigate. The difference between cases is on their rights (i.e. those with final rulings will be labelled as “ordinary” creditors which lands them higher above on the Creditors’ ladder). Notwithstanding the above, all three cases will be considered as non-secured creditors.

Purchasers will have to liaise with their existing legal representative or else appoint a solicitor to either join the Creditors’ list and/or litigate. Once the receivership has been accepted trials will now be heard only at Malaga’s Mercantile court number one unlike before in which it was actually Civil courts that passed judgement on cases involving Aifos.

Appointed lawyers will seek to best defend their client’s interests in the ensuing procedure taking the following actions amongst others:

  • Claiming from the judicial administrators the creditors’ position of the clients submitting all the necessary documents on time and in the due manner. To challenge adopted resolutions on the matter if proven detrimental to the inclusion in the Creditors’ List.
  • Continued monitoring of the receivership procedure ensuring client’s rights are upheld
  • To negotiate with the judicially-appointed administrators reaching agreements as necessary
  • To keep the client informed on the ongoing procedure
  • Assisting to Creditors’ meetings to defend the client’s interests
  • To claim or challenge judicially agreements taken by Malaga’s Mercantile Court

We will be sending this week to all our Aifos’ clients a detailed newsletter informing them of the legal situation and the available options available to them. This newsletter will also be available to non-clients upon request.

If you have purchased a non-delivered property through Aifos and wish to receive further information on this matter, please contact us free of compromise. One of our lawyers will contact you to explain clearly your legal options.

Email:  Contact Form (http://lawbird NULL.com/services/contact)
Phone: +34 952 86 18 90
Summer opening hours: Monday to Friday, from 8:00 till 15:00 hours

Litigation, Property , , , , , , ,

Web Owners Are Not Always Responsible For User’s Posts

July 17th, 2009

Web owners and in general owners of forums, blogs and wikis are not to be held responsible of the user’s posts and comments, following the Law of Services to the Information Society, LSSI for short. Lugo’s High Court has just passed a recent ruling on this matter which acquits the web owners of “mindoniense.com”.

“Mindoniense.com” is a website dedicated to providing general information on the mainland town of Mondoñedo. Two anonymous forum users attacked relentlessly the town’s major. The major filed a libel law suit defending his honour. It was turned down as there weren’t enough grounds to sentence anyone in particular. The major alternatively sued the website’s owners as they were unable to identify both forum users.

In the first ruling the judge ruled that website owners cannot be held accountable on comments posted by users in accordance to art 16 of the LSSI. However the nuance is that web owners must not be aware of the illegality of the posted comments or that they undermine someone’s legitimate rights subject to compensation, and must act hastily to remove libellous remarks or else make them inaccessible on them being reported.

Source: El Mundo Newspaper (http://www NULL.elmundo NULL.es/elmundo/2009/07/15/navegante/1247664007 NULL.html)

Litigation , , ,

New Express Eviction Law: Much Ado About Nothing

July 13th, 2009

lb-express-eviction-spain-tenants1Within the next months we are going to be bombarded with articles spinning the Government’s eagerly anticipated new Express Eviction Law (http://www NULL.senado NULL.es/legis9/publicaciones/html/textos/A_032-01 NULL.html) which has yet to be pre-approved by the Senate (http://belegal NULL.com/blog-by-antonio-flores/spanish-express-eviction-law-pre-approved/) before it is returned to the Congress of Deputies for its final enactment and publication in Spain’s Official Law Gazette.

This new law aims primarily to tackle cases of non-paying tenants which overstay in let properties, to the astonishment and despair of landlords.

But will it really help out? In short, no.

The proposed measures implemented by this law can be easily challenged or overcome by tenants. Besides the new measures will not shorten the eviction procedure significantly as sought as it hinges on the courts not being clogged, as they always happen to be. The shortcomings of the proposed measures are self evident.

The core of this proposal is the much vaunted 2 weeks waiting time, dubbed express eviction, as from the time there is a ruling evicting the tenant. But there’s a catch; the trick is that the said ruling can easily take 6 months on average dependent on the courts’ agility, so the tally would really be 6 months plus the 2 weeks. So yes, there is some reduction in the timescales involved to evict non-paying tenants, albeit not groundbreaking enough to open a champagne bottle as we are being led to believe. This half-baked attempt to redress matters will at best save only a couple of months. Landlords will still have to wait months to recover the possession of their let properties.

This is a classic example of passing new laws to satisfy the broad public (read electorate) at large which at the end of the day may only complicates matters further without really tackling pressing issues and even leaving the door ajar to potentially adding new problems. At best we can label it as a half-hearted attempt to address the situation.

At a time when many ex-pat landlords are already struggling with their mortgage loans (http://belegal NULL.com/blog-by-antonio-flores/cannot-keep-up-repayments-on-your-spanish-mortgage-not-all-is-lost/), as they relied on the let’s income to offset it against the mortgage repayments, the last thing they needed was the aggravation of withstanding non-paying tenants (http://www NULL.marbella-lawyers NULL.com/articles/showArticle/spain-tenant-not-paying-rent-spanish-property). This situation has lead many landlords to default on their mortgage loans which in turn have lead to a soar in repossession procedures. (http://www NULL.marbella-lawyers NULL.com/articles/showArticle/home-repossessions-in-spain-defaulting-on-mortgage)

A golden opportunity has been missed –again- by the legislator to address Spanish Tenancy laws that are heavily biased, for historical reasons, in favour of tenants. These laws need to be urgently and decisively adapted to modern social reality. When this is done, here’s wishful thinking, letting will become a serious alternative to purchasing properties allowing the Spanish rental market to pick up from the ground as in the rest of Europe.

In the meantime we will regrettably have to continue waiting until a law is passed that will boldly challenge this unfair situation once and for all allowing for express evictions instead of politically ill-conceived piecemeal attempts aimed to satisfy everyone.

Litigation, Property , , , , , ,