Mediation bill – new law of mediation
What has its approval meant? What is the fit of mediation now in Spain?
On January 11, 2019, the greatest progress has been made in our country in terms of mediation.
With the approval of this preliminary project, it has been possible to go from being an optional figure for the resolution of extrajudicial conflicts to something obligatory for litigants, who are obliged to attend an informative and exploratory session in the six months prior to the filing of the lawsuit in a set number of matters.
Therefore, it becomes a necessary procedure prior to the judicial process, although this does not imply submitting to the mediation process.
It incorporates a negative element in the event of non-compliance with the ‘mitigated obligation’ of mediation, so that the costs of the process will not benefit the party who has not gone to try to resolve the conflict through mediation provided that it was legally mandatory or had been agreed by the court during the process.
It is also important what matters are covered by this process, are civil and commercial matters among which are: succession, dissolution of marriage, guardianship and custody, alimony between relatives, professional liability …
Another very important novelty is intra-judicial mediation, that is, the judge or court, after analyzing the case, considers that mediation is an alternative to trial that may be more convenient for the parties.
In addition, this draft also includes amendments to three rules: Law 5/2012 of 6 July on mediation in civil and commercial matters, the Law on Civil Procedure and the Law on Free Legal Aid, which incorporates mediation between its services.
Another important element is What do you need to be a mediator?
Registration is required in the Register of Mediators and Mediation Institution that depends on the Ministry of Justice or in the registers set up by the autonomous communities. In addition, the mediators should have a better professional qualification, for example, in the area of family law, training in equality and detection of gender violence will be required.
In Llorente & Rayón can help you, we are experts in mediation, call us.
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The Reverse Mortgage
The reverse mortgage is a type loan where a financial institution grants certain amounts to a client, either monthly or at the time of constituting the mortgage, equivalent to the value of your home and that at the time of death must either pay the remaining amounts and the house will become the property of the bank or return the amounts paid to date and remain heirs.
What are the requirements? Can it be cancelled?
The requirements are: that the person hiring is over 65 years of age, that he is his habitual residence, that he resides within the national territory, that the dwelling object of the mortgage has no burden, that the dwelling is owned by him and that there are heirs who take charge of the debt.
Who owns the house?
You are still the owner of the house, you could even rent it.
Is the customer obliged to return the quantities?
In this type of mortgage loan, the client does not have to return the amounts that the financial entity lends him, it will be the heirs in case they want to continue being owners of the house the ones that will have to pay the amounts lent to date, otherwise they will not have to pay any amount, with the consequence of losing the house.
Do you need to complete your retirement? Do you need to obtain more profitability without having to pay anything? In Llorente & Rayon we advise you on this type of mortgage, so you can get higher returns and continue to own your home.
Rights granted by patents
Rights granted by patents
A patent are exclusive rights granted by the State to the inventor of a product or technology, which will allow you to use and exploit your invention and prevent third parties from using it without your consent.
It is important to patent the inventions made since this means that it has a guaranteed protection to not be produced, used or distributed by any person who would like to perform those actions without the consent of the inventor.
The person can exploit the product, as well as sell it or authorize it to be used by another licensed person or company.
In the event that you decide to sale an invention without being patented it will be very difficult to find a buyer interested in acquiring an item that does not have the necessary guarantee. Hence the importance of patenting the product: anyone can’t use it without the consent of the inventor, regardless of the purpose pursued by that person.
Patent licenses, on the other hand, allow the inventor to authorize their use by the licensee in return for a fee, and unlike if a sale had been made, with the license the inventor does not lose his status as patent holder.
In Llorente & Rayón Abogados we help you to be able to commercialize your invention through a patent license agreement, we also guide you in each step, since you make the decision to patent an invention, as well as if you decide to license or put it on sale, until the end of the process.
Lawyers specialized in banking issues
The importance to have a lawyer specialized in banking issues
When any scenario where you should make a legal claim arises, it is very important to seek the support of expert professionals in the area to guide you to get ahead with this situation.
There are circumstances related to this area, such as the floor clause, bad banking practices, preferred shares, as well as claims against financial advisory companies, among other scenarios.
The floor clause or mortgage land was present in the mortgage contracts, indicating the minimum interest rate that will be applied during the period of the mortgage payment, regardless of whether the Euribor decreases. This means that even though interest rates fall, this clause does not allow it to fall more than what has been indicated in the contract.
The advisable thing for this, and other cases, is that the person looks for experts to accompany him in each step of the process to obtain the victory: that perform specialized services in the claim of complex banking and financial issues.
That is why the choice of your representative is key to achieve success in legal processes, because this person is who will look after you, therefore they must know this area of law thoroughly, as well as have experience.
In Llorente & Rayón we have lawyers and economists specialized in claims for floor clauses, mortgage constitution expenses, preferred shares, Bankia shares, Banco Santander values and other complex financial products.
Importance of the applicable law clause in an international contract
The applicable law clause is the section in an international contract which indicates the law that will govern said agreement, in case of breach or disagreement between the parties.
It is very important to define the applicable law from the moment in which the negotiations of the pact are being carried out, but in many cases it is usually forgotten.
Its relevance comes mainly from the fact that the increase or not in the costs for the legal process depends on it. Also, it defines if there has been a breach in some aspect of the contract or if the party will be entitled to receive compensation, among other issues.
For the election of this one you have the option of the law of a part (in our case, the Spanish law), the law of the counterpart or that of a third State.
When it comes to selecting the legislation, the relevant aspects must be considered, depending on the type of contract, in order to weigh the law of which nation is best.
To illustrate better, in the case of a distribution agreement, there are nations that protect the distributor, such is the case of Portugal and Germany. In turn, countries such as Italy, France and the United Kingdom back the main one.
It should also be said that when the international contract is executed between two nations of the European Union, it is guided by the Rome I Regulation, which indicates that in the absence of this clause the contract is governed by the legislation of the country with the closest link, for example in the case of sale is the country where the seller has his habitual residence.
We hope that this information has been very useful, any necessary clarification regarding this and other topics do not hesitate to contact us.
What to do when you get dismissed?
When it comes to fire an employee, the company needs to accomplish with some formal requirements such as the delivery of the dismissal letter in writing. Therefore, the first step to follow by the employee is to make sure they receive it.
Once they receive it, it is recommended that the employee keep a copy of the dismissal letter and check if both are equal. On the other hand, the employee must check the date written in the letter, because changing the date is a common practice for companies that way you won’t have time to claim. Finally, it should be mentioned that the rejection of the dismissal letter only entails the delay of the same.
Indicate which kind of dismissal is:
We can talk about disciplinary, objective and collective dismissal. Before claiming is necessary to know the type of dismissal in question, because each of them has its different ways of rights and requirements.
Disciplinary dismissal; this happens when there is a serious and culpable breach by the employee
Objective dismissal; this one is extinguished for economic, organizational, technical or production reasons
Collective dismissal; this one takes place when the employment relationships of a certain number of employees within the same company are extinguished for the reasons mentioned above – economic, organizational, technical or production -.
What severance pay corresponds?
The severance pay for objective dismissal is for 20 days of salary for every worked year, with a top of twelve monthly payments. Like this, the severance pay for collective dismissal will be at least twenty days of salary per year worked, with twelve monthly payments as top. By last, it should be mentioned that disciplinary dismissal does not give compensation.
Check the settlement:
The settlement is the document the company gives the employee that includes all the amounts still to be paid (salary of the days of the month where the dismissal is produced, days of the non enjoyed holidays, part of the extraordinary payments accrued, overtime…).
Challenging dismissals:
In case that the employee does not agree, he can challenge the dismissal, knowing the deadline for it, which is 20 business days.
The challenge is made through the reconciliation ballot.
Once the claim is filed by the employee, the dismissal can be qualified by the judge as appropriate, inadmissible or void.
We hope that this information has been useful and if you need any clarification about it, do not hesitate to contact us.
Multi-currency mortgages: Steps to follow to claim
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.
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.
