administrative law Etiqueta

Claims against Insurers

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?
Car insurance
Life insurance
Home insurance
Liability insurance for car accident
Liability insurance for medical malpractice
Travel insurance
Health insurance
Business insurance
We hope this has been helpful and if you need more information about it, call us and we will answer your questions.

Recover Municipal Capital Gain

The IIVTNU (Tax on the Increase in the Value of Urban Land or Impuesto sobre el Incremento del Valor de los Terrenos de Naturaleza Urbana) is a direct and optional municipal tax levied on the increase in the value of urban land revealed at the time of transmission.
The normative that regulates it is the one established in the Real Decreto Legislativo 2/2004 of March 5th, by which is approved the Texto Refundido de la Ley Reguladora de Haciendas Locales.
The Constitutional Court has confirmed that «In no case can a tribute be established taking into consideration acts or events that are not exponents of a real or potential wealth, or what is the same, that the benefit of the citizen is nonexistent, virtual or fictitious »
Who can claim?
Claiming can be made by the subjects that possess an urban property and have paid the capital gain in any of the following situations:
property or land sell
property acquisition by heritage or donation
non physical residents in Spain that has obtained a property or land

What are the deadlines to claim?
There are two deadlines. First, in the case of giving auto liquidation of the tax by selling the property the time limit is in 4 years. The second case, if the liquidation has occurred, the subject will have a month term since it takes place.
The property must have been sold in the last four years for a price equal or lower than the purchase price. Also, it is necessary that you have paid the tax before the claim

Steps to follow for the claim:
The claim for the municipal capital gain is filed against the corresponding municipality. In this way, a request for rectification and refund of undue income must be submitted. To do this, we must use the documentation that proves the payment of the tax. In relation to this documentation, it is essential to have deeds of purchase and sale of housing and letters of payment of capital gains tax. Also have a report that proves that there has been no increase in the value of the land.
In case the municipality refuses to grant what is claimed, the second step would be to go to the corresponding Administrative Court to file an appeal. If you use this route also without getting results, you can go to the administrative litigation courts to claim the refund of the amount through the courts.
We hope that this information has helped you and if you need any clarification about it, do not hesitate to contact us.

Mediation and its advantages

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.

Construction defects claims

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.

Joint custody in benefit of the children

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.

How to claim floor clause

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.

The advantages of arbitration

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.

What happens if there is no Testament?

The preparation of the will is not mandatory, but it is advisable to do it to avoid conflicts to the heirs. The will is defined in the Civil Code as the act by which a person has after his death all or part of his assets.
What happens if there is no Testament?
In the absence of a will, it is the law that determines how the assets of the deceased should be distributed among their heirs according to the order of kinship: descendants, ascendants, spouse, collateral, other relatives, and finally, the State.
In these cases, a “declaration of heirs ab intestato” must be formulated both for cases in which there is no will and for those in which the testament granted is declared void. This declaration is a public document that shows which relatives have the right to inherit, in accordance with the aforementioned rules. This procedure is always done before the Notary.
It should be noted that the cost of these procedures is up to three times more expensive than in those cases in which there is a will.
Kinds of Testaments
The testament can be holographic, open or closed
The testament is holographic when the testator writes it himself. It must be signed and the date on which it is granted must be collected. The person who has it in his possession must present it to the Notary within 10 days after becoming aware of the death.
The open testament, which is the most common, must be granted before a Notary before whom it will express orally or in writing its last will. In these cases the Notary orients the testator in the decisions regarding the distribution and destination of his assets and rights.
The testament closed is a written document where the testator, without revealing his last will, declares that this is in a statement delivered to the Notary. It has the following requirements: statement of the testator that the closed sheet contains his last will and presentation of the same to the people who must authorize the act.
How much does it cost to make a will?
Making a testament is worth approximately between 38 and 50 Euros, and this amount may vary exceptionally.
Can the will be revoked?
The testament is essentially revocable and can be modified until the moment in which the testator dies. The testament can be revoked, on one side, totally or partially, and on the other hand, expressly or tacitly.
The express revocation is given when the testator grants a new testament repealing expressly the previously granted.
The tacit revocation occurs with the granting of a new testament by the testator without expressly repealing the previous one.
We hope this information has been useful and if you have any questions about it, please do not hesitate to contact us.