Yes, you can. But only in case the hidden defects existed by the time the sale took place and they are substantial defects (not unimportant, or small ones). The term you have to claim your money back is 6 months after the sale’s completion date. (2009-07-02)
The answer is no in what refers to the relevant and substantial legal aspects of the Probate. The Spanish Civil Code (Código Civil) indicates that the national Law of each person at the time of their death will be the one legally governing their inheritance. Only some external formalities and procedures, including taxation if any, will take part in cases of assets situated in Spanish territories.
The legal arrangement of the Trust is not recognized as such by the Spanish legal system. The Convention of The Hague internationally applicable to the Trust and its recognition has not been ratified by Spain. Therefore, in what refers to the Spanish legal system, the relations between the bequeather and his assignees through the Trust are considered as made directly between them directly.
The grandmother of the consulting parties, of Panamanian nationality, passed away in Madrid. Although she resided in that city for at least the last four years previous to her death, it does not show that she changed her fiscal address or that she formalized her domicile there. The bequeather had constituted a “trust” more than ten years ago in the island of Guernesey (United Kingdom), appointing her grandsons as beneficiaries of a series of assets of complicated quantification, being the grandmother the only beneficiary of that trust until her death. Up until this moment, her grandsons (the consulting parties) have not received any amount or asset from the trust.
In what refers to the trust, the faculties of the so-called “trustee” (administrator of the trust) are limited to the administration and safeguard of the funds received for the interest of the beneficiaries, he cannot have the funds for purposes different than the ones mentioned in the trust’s constitutional document (i.e. attention for the beneficiaries), also, in order to carry out certain acts of distribution he needs the authorization from certain people (“protectors”), and any positive or negative outcome obtained by the investment of the deposited funds is to be held on account of the trust. The “Trustee” turns out to be the formal proprietor of the funds, but he must keep them separated from his own patrimony.
Concerning the described facts, two questions are to be considered:
1. If the fact that the consulting parties have been appointed as beneficiaries of the trust by their grandmother with effects from her death constitutes a mortis causae acquisition, taxable by the Spanish Inheritance Tax – as the consulting parties understand – or if, on the other hand, they will have to pay tax for the amounts or assets that they are from time to time receiving from the trust like inter vivos gift acquisitions, which will be taxed with no favorable consideration about any existing kinship, since those amounts or assets come from the trust.
In this respect, although in the Anglo-American Legal system the trust is a typical institution that keeps a close relation not only with the Law of obligations and the one of property but, even, with the Family and Inheritance Law, the traditional legal areas for which the trust exists, the arrangement of the trust is not recognized by the Spanish legal System. Even so when there is an international legal text regarding this institution such as the Agreement or Convention of The Hague of 1-7-1985, about the law applicable to the trust and its recognition, that tries to eliminate or, at least, to simplify the problems derived from the ignorance of this institution in many legal systems. This Agreement had effect from 1-1-1992, but the number of ratifications by the different Countries has been very little. At the present time, only ten countries have ratified the Agreement, and, among them, it is not Spain. Therefore, in what refers to the Spanish legal system, the relations through the trust between the consulting parties and their grandmother are considered as made directly between one and others. For that reason, the appointment of the consulting parties as beneficiaries of the trust incorporated by their grandmother with effects from her death conforms the taxable deed regulated in the Inheritance and Donations Tax Law art.3.1.a, since it constitutes an acquisition of goods and rights through inheritance, legacy or any other inheritance title. The accrued income of the taxable deed is taking place at the moment of the death of the bequeather (art.24.1).
1. If the fact that the grandmother was not having her fiscal formal residency in Madrid, nor was she registered as having her domicile in that city, is a determining factor about the condition of fiscal resident in this territory in what refers to the Inheritances and Donations Tax.
In relation to this question, the Law establishes that the tax due to personal obligation is requested from the contributors who have their habitual residence in Spain, this one being determined according to, among other assumptions, the fact that the contributor has her habitual residence in Spanish territory when she remains in this territory more than 183 days during the natural year, computing the sporadic absences, unless the contributor credits her fiscal residence in another country. Therefore, the question about being or not habitual resident in Spain is a question that can really be proven by means of any permissible evidence accepted by Law. In this sense, the fact of the contributor having declared the fiscal address in Madrid or the fact of being registered in this municipality can constitute evidence in favor of the fiscal residence, and the absence of these circumstances, an evidence otherwise; but the indicated circumstances are neither necessary nor sufficient to credit the habitual residence, that can be justified by other means, and that will be determined in agreement with the joint valuation of the evidences contributed by the interested parties and the ones carried out by the Public Administration.
(From a recent binding official reply to a formal consultation made to the Spanish Central Tax Office)
Yes he could, because Landlord and Tenant can mutually agree about any term when they celebrate their contract. Anyhow, the Spanish Urban Renting Law (Ley de Arrendamientos Urbanos) quite clearly indicates that in cases of rentals having a term of less than five years, the Tenant can extend the term by successive periods of one year if he wishes so for a maximum period totalizing five years.
No it is not. The Law establishes that the deposit will be an obligatory exigency and benefit for both parties, landlord and tenant, respectively.
In general terms there is not such a protection’s possibility really. The tenant is legally more protected and the Spanish Law requires that a home contract be renewable for a minimum of five years, just subject to the tenant’s non-resignable right to decide so. However there are methods to avoid that your apartment is being considered as a rented home for tenants and thus avoiding this compulsory time extension through a careful analysis of the situation and with a properly worded contract.
I own a holiday house in a town of Málaga ’s province. I am considering renting it through an agent, to a Spanish couple for an initial period of six months. I think the couple might want to stay longer than six months, and the agent says we can consider this near the end of the first six months, and decide whether to agree to another six months for example. Can I be sure that these tenants will leave at the end of the first six months, or after twelve months, so that we can continue to visit our house for holidays? Do I simply need a short term letting contract?
Tenancy contracts are a delicate subject in what refers to short terms stipulations versus long term intentions or necessities of the tenant themselves. Therefore, there are measures as well as statements on the contract that are aimed to destroy a presumed or subjacent reality of permanent home of the tenant. This is so, because the tenancy law proclaims that it is not the parties or the contracts the ones who determine the kind of tenancy in a given situation, but the fact, or the reality itself.
We could give you assistance in case you wish to be protected against long term tenancy, by means of studying your individual case and implementing a contract with adapted stipulations.
Yes in general terms, and to an extent you probably do not even expect.
The law requires that all businesses keep this official complaint sheet and they are forced to bring it when a customer asks for it. One of the copies you sign is to be presented at the local Consumer’s Municipal Information Office (Oficina Municipal de Información al Consumidor (OMIC)), and the establishment can be fined if it fails to accomplish this.
The establishment must reply to a client’s complaint within a term of 10 days and if it does not, the client can have his case seen at the OMIC while the establishment can face fines up to €6,000.
Even though TRUSTS are not a valid legal instrument in the Spanish Law system, its implementation by Spanish natural persons, legal entities, or Spanish residents, is perfectly legitimate. This affirmation, though, due to reasons derived from internal Law as well as from the Spanish International Private Law, shall be circumscribed to the implementation of TRUSTS over assets located outside Spain in a jurisdiction which recognises this legal construction.
The legitimacy of its use is similar to that pertaining to other legal instruments available in international legal-economy field. As long as the location of assets or investments abroad is sheltered by the regulations about free flow of goods and capitals, there can be no rule restricting the different legal vehicles Spanish residents can use in foreign countries.
A completely different thing, as in case of any other juridical structure, would be the implementation of TRUSTS to produce a result against the Law (from the Spanish Law point of view). From the Private Law perspective, its use in creditor’s fraud or in damaging the rights of third parties would immediately imply the use of measures to prevent these rights from being harmed.
The basic principle underlying the “inter vivos” juridical actuations is the feasibility of their singular assessment, and also the freedom to choose the applicable law, which would lead to a respectful observation of the chosen rules in the constitutional instrument of the TRUST. In what refers to its Real effects, the transmission effects and property of the trustee over goods located in a jurisdiction admitting the TRUST shall be recognised.
Yes, on certain circumstances, such as the devious avoidance of funds after the sale, the operation you refer to could be a criminal offence according to the Spanish Penal Code when it could be demonstrated that you, as the debtor, knew, even in an extrajudicial form, about the possibility that the bank went to the legal jurisdiction to demand your debt.