El 23 de diciembre de 2015 el Tribunal Supremo dictó una sentencia por la que se declaraban abusivas las prácticas efectuadas por los bancos consistentes en imponer a los clientes el pago de la totalidad de los gastos de formalización de hipoteca. Gastos que deberían asumir parcialmente los bancos al ser estos los beneficiarios de las operaciones. Los bancos, gracias a la inscripción de la escritura de un préstamo con garantía hipotecaria, consiguen la posibilidad de ejecución especial, la obtención de un título ejecutivo y la constitución de una garantía real.
¿Cuáles son los gastos que puedo reclamar?
Gastos de gestoría, siempre y cuando la impusiera el banco: 400 euros aproximadamente
Gastos notariales: representa normalmente entre el 0.1% y 0.5% de la responsabilidad hipotecaria, más coste por hoja de las escrituras
Gastos de Registro de la Propiedad: normalmente no supera el 0.2%
Impuesto de Actos Jurídicos Documentados: oscila entre 0.1 % y 1%
Gastos de tasación de la vivienda
¿Cómo reclamar la devolución de los gastos de constitución de hipoteca?
A efectos de determinar el importe correspondiente, es necesario averiguar a cuánto asciende la cantidad abonada por el cliente. Es por ello que se requiere disponer de las correspondientes facturas.
El primer paso a seguir por el afectado es acudir al defensor del cliente o al servicio de atención del cliente de la entidad bancaria. En caso de no recibir respuesta, será necesario recurrir a la vía judicial solicitando la nulidad de la cláusula y la restitución de los gastos abonados. Es necesario acudir con abogado y procurador en este tipo de procedimientos.
¿Cuál es el plazo para solicitar la nulidad de la cláusula y reclamar la devolución de las cantidades abonadas?
En principio, no existiría plazo de prescripción ya que se trata de cláusulas abusivas que implican la nulidad de pleno derecho. Sin embargo, existen determinadas corrientes doctrinales que sí establecen un plazo para poder reclamar. En este sentido, se habla de dos plazos. El primero de los plazos sería de 4 años desde el 24 de diciembre de 2015 para aquellas hipotecas que están actualmente vigentes. Para el caso de hipotecas que ya han sido totalmente abonadas se podrá proceder a la reclamación si la totalidad del pago se efectuó dentro del plazo de los cuatro años anteriores al 23 de diciembre de 2015.
Esperamos que este artículo le haya sido útil y si necesita cualquier información al respecto no dude en contactar con nosotros.
It is common that, as a result of some incident, conflicts arise between insured and the insurance carrier by differing the opinions of one and the other.
What are the ways to claim insurers?
Insurance broker and, failing that, insurer
The first of the steps is to expose the problem to the insurer so that one lend a solution to the client. For this you must go to the figure with whom you hired. If insurance has not been contracted through the insurance broker, you should contact the insurer directly.
Defender of the Insured or Customer Service
A complaint must be made in writing before the Defender of the Insured or Customer Service. Said writing must be sent by certified mail with acknowledgment of receipt, burofax, or any other useful means to verify its presentation.
If, within a period of two months, you do not receive a response or you cannot reach an agreement, you have the possibility of going to the Directorate General of Insurance, to the Claims Services department, which will settle in 6 months. It is worth mentioning that the decision of this body is not binding, so the insurer is not obliged to comply with it.
Consumer Association, where they can offer us information about the options we have available.
Arbitration, it is an extrajudicial route for the resolution of conflicts that may have arisen between insured and insurer. Arbitration offers several advantages such as greater speed, lower cost and greater efficiency. Therefore it is a recommended and favorable option for the insured. In this case, the insured must submit the request for arbitration to: consumer information offices of the corresponding Community, consumer associations, or personally before the Regional Consumer Arbitration Board.
Judicial: In the event that none of the aforementioned routes end the conflict, it may be brought before the courts for resolution.
What are the most frequent claims to insurance companies?
Liability insurance for car accident
Liability insurance for medical malpractice
We hope this has been helpful and if you need more information about it, call us and we will answer your questions.
A la hora de despedir a un trabajador, la empresa ha de cumplir con una serie de requisitos formales como es la entrega de la carta de despido por escrito. Por ello, el primer paso a seguir por el trabajador es asegurarse de recibirla.
Una vez recibida, es recomendable que el trabajador se quede con una copia de la carta de despido y verificar si ambas son iguales. Por otro lado, el trabajador debe fijarse en la fecha que consta en la carta, pues es práctica habitual de las empresas cambiar la fecha para que se pase el plazo para reclamar. Por último, cabe mencionar que el rechazo de la carta de despido únicamente lleva consigo el retraso del mismo.
Identificar qué tipo de despido es
Se puede hablar de despido disciplinario, objetivo y colectivo. Antes de reclamar es necesario saber el tipo de despido del que se trata, pues cada uno de ellos tiene distintos derechos y requisitos.
Despido disciplinario; se da cuando existe un incumplimiento grave y culpable por parte del trabajador
Despido objetivo; aquel que se extingue por causas económicas, organizativas, técnicas o de producción
Despido colectivo; se da cuando se extinguen las relaciones de trabajo de un número determinado de trabajadores dentro de una misma empresa por las causas anteriormente mencionadas -económicas, organizativas, técnicas o de producción-.
¿Qué indemnización corresponde?
La indemnización por despido objetivo es de 20 días de salario por año trabajado, con un máximo de doce mensualidades. Al igual que éste, la indemnización por despido colectivo será como mínimo de veinte días de salario por año trabajado, con un límite de doce mensualidades. Por último, cabe mencionar que el despido disciplinario no da derecho a indemnización.
Comprobar el finiquito:
El finiquito es el documento que entrega la empresa al trabajador donde deben quedar incluidas todas las cantidades pendientes de pago (salario de los días del mes en que se produce el despido, días de vacaciones no disfrutados, parte de las pagas extraordinarias devengadas, horas extras…)
Impugnación de los despidos:
En caso de que el trabajador no esté de acuerdo puede impugnar el despido, teniendo en cuenta el plazo existente para ello, que es de 20 días hábiles.
La impugnación se efectúa por medio de la papeleta de conciliación.
Una vez interpuesta la demanda por el trabajador, el despido puede ser calificado por el juez como procedente, improcedente o nulo.
Esperamos que esta información le haya sido útil y si necesita cualquier aclaración al respecto no dude en contactar con nosotros.
What is a multi-currency mortgage?
A multi-currency mortgage is a complex financial instrument that constitutes another of the ways to obtain a bank credit. Its advantage is to benefit from the low interest rates that exist in a certain country in relation to others. At the same time, it is subject to the following risks: variation of the interest rate and currency fluctuation.
The problem that arose in relation to this mortgage was the lack of information offered by the banking entities when proposing this option, hiding the risk that it supposes. Being a financial instrument and not just a mere mortgage loan, banks should have taken into account the circumstances and knowledge of the mortgaged at the time of offering to contract this type of mortgage.
Documentation needed to claim:
Deed of mortgage formalization
Documents that the bank gave us before hiring the mortgage
Paid receipts or, failing them, movements that the mortgage has suffered
Steps to follow to claim:
First of all, it is recommended that you contact the financial institution to express the situation in which you are and request the change of the mortgage in Euros. Likewise, it has to be requested that the Euribor be taken as a reference, in addition to the return of the amounts paid over the time which the mortgage was calculated according to another currency.
At this point, it may happen that you do not receive any response from the bank or that the bank offers you an agreement. In both cases it is advisable to contact a specialized lawyer trained to guide you with regard to the different options available. It is very important to review the solution offered by the bank with a lawyer, as this will advise us in case the agreement offered by the bank is insufficient and is advisable to go to court.
If no answer is received, the corresponding legal actions must be initiated in order to obtain a judgment that condemns the bank to pay the amounts unduly charged to the client.
We hope that this information, especially relevant at present, has been helpful and if you need any clarification about it, do not hesitate to contact us.
Everybody knows that using the jurisdictional way of solving conflicts, in its great majority are long and expensive processes where you not only loses time and money, but it can lead to more severe problems due to the emotional strain that comes with being immersed in a judicial process. Fortunately, there are other ways, in this case the mediation, which allows resolving the conflict quickly, easily and less expensively.
The mediation is about an out-of-court conflict resolution based on an impartial figure, denominated mediator, which the only thing that does is to approach the positions of the parties with the objective of reaching an agreement, also can provide a solution but in no case will be binding. The solution adopted must be accepted by all of the parties.
The whole process will be completely confidential, voluntary and totally flexible, so it can be adapted to each of the parties’ needs.
The advantages offered by this method are undoubted, which emphasizes above all things the speed, since the solution can be reached in a few sessions (always shorter than a judicial process). It should also be renamed, that does not suppose the rupture of relations between the parties, since the decision has been made by mutual agreement between the parties and has not been imposed by an impartial third party with the power to do so. Also the good faith predominates when going voluntarily and can prevent future conflicts that are latent.
But as every process, it also has advantages and disadvantages, which we will highlight one above the rest and is that you cannot always take into account the difference that may exist between the parties in the process, which could lead to the signing of unfair pacts for the weakest party or parties, something that in principle should not happen if we go to a court of law.
There is no doubt that this method is being used in more and more areas and by more people tired of the common judicial process, all this promoted by the European Union, that through its directives, regulations or decisions, tries to force the country members to develop greater and more effective instruments to facilitate citizen access to mediation.
We hope that this information about mediation has been very useful, and if there is any doubt, we will be able to resolve it.
Can anyone say that he has never had a crack in the walls of his property? Or water leaks? It is very likely that the answer is no, but luckily there are mechanisms to demand the repair of those construction defects that bring us many headaches.
All the keys to know how and when to claim are reflected in the Building Management Law, which can be said, usually protect the owner of the affected property.
The first thing to do, as in any demand, is to find the person responsible for the damage caused, which is usually, since it holds the maximum responsibility, the owner of the property developer who proceeded to the construction of the building (developer).
This does not mean that the developer is the responsible for any construction defect, since, as is logical, many professionals with diverse functions participate in a construction, and they have part of the responsibility in their actions.
The law, to determine the warranty periods, divides the different types of work defects into 3 groups, called: very serious, serious, and mild.
The very serious ones are those that offer the longest guarantee period in the law, since they are the ones that take the longest time to discover them and the ones that most put the lives of the inhabitants of the property at risk. They tend to be defects that affect the stability of the building itself. The law gives us a warranty period of 10 years.
The serious ones, has a big difference with the first one, is that these defects affect in an intern and individual way in a property of the building, but however keep inducing serious problems in the habitability and has to be corrected for the total enjoyment of the property. In this one the law gives 3 years of warranty.
The last one, the mild, are those referred to the defects of finish in works, which usually do not cause major problems due to its easy repair. The law gives us one year warranty.
Does this mean that if we observe a defect and has passed the warranty it is gonna be impossible to claim? No, luckily, it does not matter which one it is and the moment, the law give us 2 years (24 months) after discovering the construction defect to claim before whom the reparation of the damage proceeds.
We hope this information has been useful for a common issue such as construction defects, and if you have any problems, do not hesitate to contact us.
A separation or divorce process is always hard, but more for the minors that suffer it. They are not guilty in the situation and neither are prepared to confront it, so this solution of shared custody is usually beneficial to reduce the trauma they may suffer.
Joint custody is reflected in article 92 of our Civil Code, which defines it as the shared exercise of guardianship and custody of the children when requested by the parents in the proposed regulatory agreement or reach an agreement in the course of the entire procedure.
What is necessary to grant joint custody to parents?
In first place, as noted above, it has to be requested by the spouses in agreement, or by one of them, as long as it only favors the interest of the child.
Is it enough with the request or is it necessary another requirement?
Obviously, there are a series of requirements that has to be accomplished, some of them comes indicated in the Civil Code, such as none of the parents should be involved in a criminal proceeding due to an attempt on life, physical integrity, freedom, moral integrity, etc… against the other spouse or the child who lives with both.
It must be remembered that the supreme purpose of all divorce or separation processes in which there are minors involved, is to ensure the interest of the minor, so the jurisprudence highlights other requirements that after all are also important for the proper development of the child, such as that there is no hostility between parents, the location of the addresses of each one, their job schedules, etc…
It should be noted that the judge will always have the last word, if the judge considers that after the evidence provided and after a report from the prosecutor’s office, the requirements for establishing joint custody are not met, he will not do so.
To the question that, if this measure is the most beneficial for the child, the majority of the doctrine and jurisprudence does not hesitate to affirm it categorically, since it is the most fair and the one that least harms the minor as long as it can be develop cordially.
We hope that all this information about joint custody has been useful, and if you have any questions do not hesitate to tell us about it.
The floor clause is undoubtedly one of the best known banking terms today, and it is not for less, but do we really know what it is about? Is it easy to know if our mortgage contains this type of clause? How can we claim the return of what we have overpaid during this time? Next, we will try to solve all these doubts.
Let’s start by defining what is the floor clause, which is what stipulates a minimum interest on our mortgage, that is, we must pay that minimum, even if the index to which it is linked is much lower. However it does not happens the opposite since there is no maximum limit if the index itself increases exponentially.
But what makes the majority considered null, is that they were included in the contract in a non-transparent manner.
Posed the problem, we proceed to propose the solution. How do I recover the money I have overpaid?
There are two options, a cheaper and faster, but less effective (extrajudicial) and another that is more expensive and prolonged in time but that has better results (judicial way).
The extrajudicial way is basically to claim the amount of money that the bank owes us, reaching an agreement and ending the conflict. However, although this solution seems the most logical and sensible, it is almost never done successfully since banks do not usually return the money unless there is a sentence that dictates it.
And on the other side the judicial route, which is more arduous and more complicated for the individual, but that reports much higher percentage of success since after several judgments of the Mercantile Court and especially a judgment of the supreme court of May 9, 2013 (which declared null the floor clauses), the judgments are mostly favorable.
If I get a judgment in favor, do I recover all the money I overpaid? Until recently, banks were only obliged to return the money received from more since May 9, 2013 (the date on which the ruling of the supreme court is issued) due to the “financial collapse” that would occur, however, the court of justice of the European Union in its judgment of December 21, 2016, established that all the money that had been charged more from the beginning of the contract should be returned, which means that on average it is an amount that oscillates over 10,000€
We hope that all this information about joint custody has been useful, and if you have any questions do not hesitate to tell us about it.Seguir leyendo
Apart from mediation, is there any other non-jurisdictional method to resolve conflicts or controversies? Is it really useful? Well, arbitration seems an effective procedure to solve conflicts in an extrajudicial way with the following advantages that we will detail next.
We will start, as is logical, defining what is arbitration, this is a procedure by which a dispute is submitted to an arbitrator, or to a tribunal of arbitrators (composed of 3 or 5 members), with the objective of that impartial part dictates a decision (arbitration award) which is mandatory between the parties.
As main characteristics it is necessary to emphasize that it is a consensual procedure, that only agreement between the parties can be possible. In addition, as is logical, the parties designate the arbitrator, who will be totally neutral and who will also be subject to the applicable law, language and place of arbitration, which may also be agreed by the parties, so that none has the slightest advantage over the other. Finally, it should be noted that this is a completely confidential procedure and that its resolution, always executed by the national courts, will be mandatory between the parties.
As for its advantages, the one that stands out is its agility and speed, since the parties agree on the terms in which all the actions will be developed, in case there is no agreement, the conflict will be resolved in 6 months. This is due to the greater availability of arbitrators with respect to judges and jurisdictional courts.
Its second main advantage is economic, because it is a simpler procedure because it ends with an arbitral award which is mandatory and against which there is no recourse, so it cannot be appealed or by appeal or cassation, so in a single instance the solution to the conflict is obtained and no extra costs are generated due to the lack of subsequent resources. There is no need for legal assistance, although it is recommended.
As for the applicable regulations, arbitration in Spain is regulated by the Law 60/2003 of December 23, in addition to having signed the New York agreement of June 10, 1958 on the recognition and enforcement of foreign arbitral awards.
I hope we have solved all your doubts regarding a procedure as useful in Spain as it is arbitration, if not, here we will be to resolve them.
In order to acquire the goods and rights that make up the deceased’s estate, first of all, it must be accepted.
This acceptance may be express or implied.
Express acceptance; it can be given in a private document or in a notarial deed.
Tacit acceptance; acceptance is presumed for the performance of acts by the inheritor of the goods granted for their possession.
Ways to accept the inheritance
Pure and simple acceptance; only recommended in those cases in which there is absolute certainty that the debts of the deceased do not exceed the amount of the assets that make up the inheritance. If not, the inheritor would have to respond with his own assets from the debts of the inheritance
Acceptance for the benefit of inventory; it is advisable in those cases in which there is doubt as to whether the debts of the deceased exceed or not the amount of the assets that make up the inheritance. In this case, the inheritor would only be liable for the hereditary debts up to where the value of the goods received by the same reached.
Guidelines to follow for the acceptance of the inheritance
At the time of going to the Notary to carry out the writing of acceptance of the inheritance is necessary that the call to inherit follow the following guidelines:
Have a copy of the death certificate of the deceased, which will be obtained in the Civil Registry of the municipality in which he has deceased.
Request the certificate of last wills, as well as the certificate of coverage insurance for death.
Request an authentic copy of the will. In case there is no testament, the future inheritance must go to the Notary to make the declaration of heirs ab intestato.
Can you repudiate the inheritance?
Yes. The repudiation of inheritance constitutes a declaration by the inheritor where he expressly rejects the inheritance. It must be done judicially or in public deed before a Notary.
The acceptance and repudiation of the inheritance are irrevocable.
Are there deadlines to accept the inheritance?
The only term to take into account is the Inheritance Tax, which is 6 months from the declaration of death.
However, it is worth mentioning that any person that may affect the acceptance or repudiation of the inheritance may require notarially that the call to inherit accepts or repudiates. The call will have a period of 30 days to accept, purely and simply or to benefit inventory, or repudiate the inheritance. If within that period he does not manifest his will, the inheritance will be understood as accepted purely and simply.
We hope this information has been useful and if you need any clarification do not hesitate to contact us