The economic activity itself in Spain, from day to day, is not exempt from suffering setbacks, delays and in many cases the breach of the order or the contract that has been concluded between the parties to perform a service or provide a good.
What was expected to be a normal service or a purchase/sale in Spain without delay can sometimes end up becoming a real headache especially if the service that has been paid for is unsatisfactory or the goods that have been purchased do not comply with the conditions previously agreed in the business agreement.
In order to recover an amount paid in Spain, the first thing to do is to distinguish the nature of that amount and the second thing to do is to choose a good law firm that is expert in quantity claims in Spain and that has the solvency to contribute to a quick management of the conflict, says Rafael Andrades, Welex’s lawyer in Spain.
One of the great assets of this famous legal, tax and accounting consultancy firm located in Marbella, Malaga is its extensive experience in managing various problems to which they always find a quick solution under the premise of ensuring – primarily – the confidence of the client.
“Depending on where this obligation arises we can find ourselves before one procedural path or another; article 1089 of the Spanish Civil Code says that every obligation consists of giving, doing or not doing something; and article 1090 states that obligations arise from the law of contracts or legal agreements of these obligations”, explains the expert.
Leading law firm in Marbella Welex points out that obligations cannot be contained – except on rare occasions – by force (coercive means) and obliging a person to do what he does not want can be contained by “imposing” a certain legal consequence, generally the payment of a certain amount of money.
“We also have compensation for non-material damage… a person’s moral is the consideration, the esteem that others may have for us or the one we have for ourselves; it is something that cannot be restored, there is no restitutio in natura that can be given again to a person who has been falsely accused of committing a criminal act, a crime of slander, let us say that this consideration of others cannot be restored in a material way”, Rafael Andrades lawyer in Marbella notes.
One of the most common and frequent defaults is related to the contractual rental relationship in Spain, which can lead to legal complaints and costly lawsuits.
In this regard, Welex’s litigation lawyer in Spain, points out that the emergence of the obligation is the existence of a previous lease contract and as a result of non-payment by the lessee, the lessor can exercise different actions in Spain.
“It is something very usual, in these cases it leads to a special non-declarative ordinary or verbal procedure for the eviction for non-payment and the claim of rent and similar amounts”, says the advisor.
Are these cases frequent at Welex?
-Yes, in fact we provide service, both to the tenant and the landlord, if it happens that unpaid amounts are claimed, we proceed to do it; we can claim unpaid for light, water, sometimes there are contracts in which they are agreed to pay half the Wi-Fi or telephone line; the community expenses are not usually subject to lease are linked to the ownership of a property and are the responsibility of the owner.
In addition there are several aspects that must be taken into account and then Andrades comments: “The landlord has a lease contract in Spain, if this is not fulfilled then he comes to Welex so that we can exercise in his interest the actions to claim the rents or the amounts, we request the eviction and the recovery of the property”.
On some occasions, the tenant is the one who contacts Welex “either because he is in a situation of crisis or economic precariousness” and he does so because he tries – through the extrajudicial route – to reach a type of agreement by offering to hand over the rented flat in exchange for the remission of the debt.
“There are always fringes, in the case of a lease when we intervene to seek financial compensation we make an assessment in general. As we also do it in a detailed way in case of a purchase contract that is not fulfilled; or of a deposit that is frustrated as well as of a building lease and is done badly… all this entails a judicial or extrajudicial procedure and a compensation of damages can be materialized by discounting the price of that activity a certain percentage or an amount to see the interests of the lessor satisfied”, Andrades comments.
Are all debts claimable in Spain?
-Yes, all of them, because when we talk about amount we are talking about something material, about a benefit, when you stop paying 70 euros, 300 euros or 500 euros what we are talking about is the frustration of a certain obligation; if there is no action to claim that amount it would mean that there is no obligation to pay it. There is only one case in the Civil Code of an obligation without action, and that is natural obligations that are assumed voluntarily without any real right of claim.
“For example, when we talk about the management of another’s business, I assume an obligation without there being a real obligation of the person who assumed it or the payment of interest when it was agreed; these are very concrete cases where there is no right to claim them if I pay interests without having been agreed, it is understood that I do it with the minors effects of liberality and I cannot claim it in court”, he adds.
At litigation law firm Welex the Clients come first
Sometimes people stop claiming amounts in Spain for unfinished work or an unfulfilled agreement because they feel that the small amount will make it more expensive to claim and they consider them as non-refundable.
In Andrades’ view, everyone has “limited resources” and no one has a plurality of resources that they can allocate at any cost.
“Not only do we have procedures to recover amounts both out of court and in court, but also through an order for payment procedure as happens when we claim community fees”, he says.
In addition, it is always important to have an office that is thorough with the whole process: “In that sense there are situations where cost/benefit assessments must be made and the claim of certain amounts is uneconomic. We at Welex seek the way of extra-judicial negotiation, either by trying mediation or by trying arbitration depending on the type of obligation; whether we think of consumer matters we have a purchase or a professional service and it is not fulfilled… for that there is a solution of conflicts, without going to the jurisdiction, because that does involve a series of costs”, explains the legal specialist.
A foreigner with a deposit problem who has already given them and later repented can recover them?
-Depends on the particular study of each case, there is no uniform solution that is valid for all of us. We will have to see how the contract was concluded, the obligations and the attitude of the counterpart… only in this way is it possible to terminate a contract.
In the case of a purchase-sale transaction in Spain, Andrades continues, the exercise of an action for the resolution or nullity of the contract due to a deficiency would result in the restitution of the services… it would not have to be fulfilled and the deposit would be returned.
“In many cases they are returned with the legal interest, from the date of signing the contract, Article 1100 of the Civil Code says that contracts in their own terms must be fulfilled; and it serves us well for cases of negligence or default,” he says.
Is it common to claim the return of deposits in Spain?
-Some customers have come to us who have understood that the terms and conditions of the deposit contracts have not been well explained; and that they do not conform to what was offered, what we do is corroborate that the exercise of the resolution of the action is appropriate.
“If the deposit contract is properly secured, it must be complied in accordance with itself, Article 1454 of the Civil Code states that in the event of termination by the seller in the matter of deposit, all amounts must be returned in duplicate”, he points out.
Andrades, partner of leading litigation law firm Welex, acknowledges that as a tax advisor he has seen many cases where clients have bought homes, moved in and realised that it is not what they expected.
The return of the floor clause in Spain
Welex, your expert law firm in claiming amounts in Spain mentions that there is a very wide scope in claiming amounts, which Welex law firm in Spain, whose meaning is “we and the law” covers with strong experience in all orders: in contracts with landlords, tenants, usufructuaries, consumers and banking institutions.
In recent years, an interesting resolution has been passed in Spain in relation to the acquisition of housing by means of a mortgage in which a financial institution has intervened.
This is the so-called floor clause of a mortgage facility in Spain, also known as minimum charge of interest on a mortgage in Spain, and since 9 May 2013, the Supreme Court in Spain has declared it null and void thanks to a ruling handed down on that date.
The Court considered it “abusive” and therefore ordered the return of the amounts “illegally collected” by the banks since the date of that ruling.
What is a floor clause? “It is a clause that benefits the bank and harms the individual who has requested the loan because when the rates go down or the interest is negative the clause prevents it from being transferred to the monthly payment. Depending on the regulations of the country, the conditions of the contract and its transparency and clarity, an unfair, illegal or null term can be typified, and therefore can be considered a bank fraud.”
A few years after the first ruling, the European Court of Justice (EU) ruled in an unappealable judgment of 21 December 2016, against the limitation of the retroactivity of the nullity of the ground clause: “Therefore, banks and savings banks in Spain are obliged to return all money illegally charged for ground clauses from the signing of the real estate mortgage for the purchase of housing”.
According to the Ministry of Economy and the Bank of Spain, between July 2017 and February 2019, financial institutions received a total of 1.18 million requests for the return of “the amounts overcharged by the soil clauses”.
The banks have returned 2.3 billion euros to their clients and 5,735 files are pending resolution, most of which have been direct negotiations between the financial institution and the client.
Although the General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ) admits that 400,000 lawsuits have been filed through various bodies and associations that have emerged around those affected, especially in Andalusia and Catalonia.
Welex has been participating for years in the return of this land clause in favour of its clients, and it does so in an extensive negotiation with the banks.
What is the process you advise?
-There is a formula that we offer to the clients that is the extrajudicial claim according to the Spanish royal decree 1/17 for the refund of the amounts unduly satisfied with the ground clause and we negotiate with the bank always in favour of our clients. It should be said that, depending on the situation, the bank pays, but you must be well assisted by a professional from the first minute.
How long can the return of the ground clause last in a friendly manner?
-From two to three months through civil proceedings… it depends on the terms.
Do you also help in the claim of non-payment or non-delivery of services or goods if you have to deal with another country?
-Yes, although there are other international procedures, we make the claim in another EU member state taking care about how to use our own courts for the resolution of civil or commercial disputes.
Please do not hesitate to contact Welex, your expert law firm for claims in Spain for any tax or legal questions.
It is a doubt that anyone can have when taking the step to acquire a property in Spain.
Using a lawyer in Spain = Guarantees the investment in Spain
The economic investment involved in buying a property leads us to the obligation to do so with the maximum possible guarantees. Even more, if the purchaser is a foreign person, not a resident in Spain.
Statistical data of buying and selling in Spain
According to the Bank of Spain, housing transactions reflect the upward trend that the real estate sector has been experiencing over the past five years.
Only in 2018, just over 550,000 home sales were recorded in Spain – approximately 10% more than in 2017 – but this is a much lower level than in the years before the economic crisis.
“For example, in annual average, during the period 2004 to 2007 the number of housing transactions in Spain amounted to about 885 thousand and the optimism towards recovery is maintained”, reveals the official body.
Recommendations of conveyancing lawyer in Marbella when selling a property in Spain: