As the owner of the land in Spain, am I entitled to have use of the subterranean waters in my plot? What about the waters from a river crossing my plot?

All waters (surface waters as well as the subterranean ones) are forming part of the so called Spanish State’s Public hydraulic domain, and are subject to general Public interests.

Even though the waters cannot be privately owned in Spain, their common use, as well as their private use is admitted.

a) In what refers to common uses, the Spanish Law states that anyone can use the surface waters while they flow within their natural beds for drinking, swimming and other domestic uses, as well as for watering halt for livestock.

b) Regarding the private uses, these can be acquired in Spain by statutory provision or by Administrative License, but never by prescription due to any lapse of time of undisputed enjoyment. The owner of a land can use the rain waters flowing along the plot and the ones in ponds within the plot’s boundaries, as well as the waters from springs existing inside the plots and the subterranean ones. In the last two cases the used volume cannot surpass 7,000m3 per year.

Can we get an order to have the children here in England with their father?

My husband and I live in U.K., but his children were taken to live in Spain by their mother 5 years ago without his permission. They were not married, so he had less rights to do anything about that. The children are aged 10 and 13. They have said a few times about their mother having a problem with alcohol and even driving drunk. Can we get an order to have the children here with their father? They can have a much better life with us. Thank you.

Regarding your questions, I send you my comments based of my best knowledge as follows.

First, I will assume the following applies:

1. Your husband has never been married with the mother of the two children.
2. This non-marital relationship has never been ruled by a judicial convention/agreement nor by an extra-judicial one signed by the parties.
3. Your husband has sufficient Spanish documentation showing he is the father of his two children (in case they were born in Spain, their birth certificate or, alternatively, the official Family’s book, whichever one properly translated into English by a sworn official translator) or U.K. documentation (In case they were born in U.K.).

Assuming these facts are applicable, there will be nothing that prevents the father having the children with him for the time he considers necessary, since there is yet no official rule about parents custody. At the same time and in order to achieve the referenced forceful convention/agreement either the father or the mother will need to submit as soon as possible a claim to the Spanish Courts (in case the children were born in Spain, or even if they were not, in case they have been registered and residing here until this moment, or also if the non-marital couple had their last mutual domicile here).

For this claim to be successfully won, I understand that the unnatural or odd behaviour of the mother will need to be proved by means of witnesses (I would also recommend a private investigator’s report) and you also must be prepared to face that the Judge will like to hear the children’s opinions (separately –i.e. not at a public court’s hearing- and with the help of a judicial psychologist).

In case your husband decides to act judicially, and assuming the Spanish jurisdiction is applicable, we will be able to assist professionally, and for this we will need that the father grants a power of attorney at the Notary, giving us powers to represent him at the Court and also –in my opinion- we will need to have an interview. Subject to your confirmation, we can prepare the text and guidelines for such Power of attorney.

I am a non Spanish resident. Is there a substantial difference between selling my Spanish property to a non-resident relative or giving it to him/her as a gift?

Yes, there is. While the selling route brings a tax for the buyer to pay of a 7% of the price plus around 2%-3% of additional expenses, the donation has a much bigger tax coefficients fot the recipient to pay: approx. 18% to 34% as per a scaled proportional gradation depending on the property’s market value, plus additional expenses similar to the ones of the sale.

What are the most important items in any contract for the purchase of a property in Spain?

• A proper and accurate description of the property.
• Full identification of buyer and seller.
• Fully determined Price’s ammount.
• Method of payment.
• Clause about freedom of all charges and liens.
• Clause about who shall be paying the transfer’s expenses and taxes.

Can past unpaid community expenses affect a new owner of a property in Spain? (2006-05-21)

Yes, they can affect a new owner since there is a legal right in favour of the Owner’s condominium entity by means of which any property owner is responsible for debts of community expenses. However this responsability only concerns the new owner regarding unpaid debts arising just on the whole current year and the previous one.

Where can I look for any decision taken by the Condominium in a Spanish real estate property?

You should ask the President of the Condominium to let you see the Minutes Book containing the official reccord of any year’s Annual General Meeting of the Community. This Book is an official document that must be included in the community’s documentation in all cases.

Does the community of owners have the right to enter my appartment in Spain against my will?

Yes it does. Any property owner must allow workmen to enter their property if and when it is necessary for repairs and maintenance of the building’s common areas and services.

Can I bring up a new matter I wish on a community General Meeting in Spain even if it is not listed on the meeting’s agenda?

Yes, you can. At the end of the meeting, and normally after all the agenda items are dealt with, there must be a turn for questions and any other subject not included on the agenda.

I have heard that the S.L. company laws regarding foreign residents buying property in Spain has changed. I remember before there was a limit of 1 to 2 yrs and a max. 30% requirement for passing on or changing names on the stock,otherwise it was considered a private sale and taxed as so with an additional fine. Has this changed? Esp. if one parent who is the holder of the shares wants to pass it to his/her child?What does the new law offer and what one should consider?

The present regulations in force regarding transfers of shares of companies directly (or indirectly) owning real estate properties situated in Spain when they represent 50% or more of the Company’s active (total assets) establish that these share transfers pay a transfer tax as if they were normal real estate transfers. In the present moments, this tax is 7% in Andalucía.

The same tax is applicable to transfers of shares owned as a result of provisions of Spanish real estate properties into companies at the time of the formation of such companies, or of the share capital increases as long as the elapsed time between such provision and the transfer is three years or less (before it was one year). 2007-08-27.

What is the difference between Spanish S.A and S.L. companies? (2006-05-21)

They are not the same even though the S.A companies (or Sociedades Anónimas) and S.L. companies (or Sociedades Limitadas) have many characteristics in common. While S.A. companies are designed for medium to big enterprises and have a minimum share Capital of 60,102 Euros, the S.L. companies can operate with a share Capital of at least 3,006 Euros. Also, S.A. companies have a more strict system of control related to accounts and to actions and obligations where official publicity is forceful.