NEW RENTAL MEASURES

Royal Decree 35/2020 & 37/2020 of 22 December 2020

The government recently published a package of measures relating to rentals to deal with the crisis caused by the Covid outbreak, and following is a summary of some of the most relevant:

Suspension of evictions and other repossession procedures 

In respect of eviction procedures for non-payment of rent and/or expiry of the lease period, the tenant has the possibility of requesting the suspension of the procedure. The suspension must be requested and will not be agreed upon ex officio by the Court. The suspension will last for the duration of the state of alarm and any extensions.

Tenants in a vulnerable economic situation may benefit from this measure, in accordance with article 5 RDL 11/2020, which must be accredited with the documentation of article 6 RDL 11/2020. Once the application and supporting documentation has been presented, the appropriate social services will be notified to issue a report for the judge to give a ruling on a suspension based on the report and an analysis of the documentation presented.

If social services take over three months, the landlord will receive compensation equal to an average rental plus expenses.

It is also possible that evictions could be suspended in cases of precariousness, protection of genuine registered rights and injunctions to recover possession, in respect of properties owned by companies or private individuals owning more than ten properties. In such cases, a judge may agree to the suspension of the action until the end of the state of alarm. The suspension may be requested by those who are financially vulnerable as described above, who will be required to demonstrate this to a judge. The social services will also be notified. Furthermore, they must demonstrate that those who also occupy their dwelling are dependents, minors or victims of domestic violence.

A suspension of eviction procedures will not go ahead if the property is the home or second residence of a private individual, belongs to a company that has rented it out or equivalent, if it has been broken into and there are reasonable indications that illegal activities are being carried out in it by the occupiers, or it is social provision housing, or when the occupation takes place after the law has been passed.

Business Premises Rentals

The package of measures (RDL 35/2020) affects the rental of properties with a use other than residential, the vast majority of which are premises subject to Urban Letting Law. The legislation provides for a system of moratorium/reduction of rent for certain contracts.

The measures only affect rentals where the landlord is a business, a public entity and/or private individuals who either own more than ten properties or their property holding exceeds 1,500 square metres. In other words, if the landlord is a private individual who is not a large-scale holder, tenants will have no recourse to these measures.

MUNICIPAL PLUSVALIA: 6 REASONS TO CANCEL THIS LOCAL AUTHORITY TAX

It is a common occurrence that someone sells a property and a few months later receives a large bill for this tax. Sometimes, the amount of this tax is retained by the buyers and withheld for them to make the payment later, especially in those cases where the seller is a non-resident of Spain. Now, a recent Supreme Court ruling 1689/2020 of 9 December has declared this municipal tax null and void when the tax due wholly matches the increase in value of the land.

It’s a good idea to bear this recent ruling in mind before selling your property, to analyse with due legal diligence whether the calculation of this tax provided by the town hall is in accordance with the law or could be considered abusive or null according to the criteria established by the Supreme Court and the Constitutional Court of Spain.

In order to analyse whether the tax is calculated correctly or is actually null or non-existent, the vendor must be asked for a copy of their Escritura (property deeds) and the IBI (rates) before signing at notary to be able to check if there really is an increase in the value of the land since if there has not been one providing a real benefit to the vendor, this tax can be declared null and void and there is therefore no obligation to pay it. 

According to the Supreme Court, six cases provide the legal basis for annulling Plusvalía:

  • The sale must have resulted in a real increase in the value of the land, otherwise there is no gain to be passed on to the taxpayer (vendor).
  • The Constitutional Court ruling STC 126/2019, of 31 October, declares unconstitutional Article 107.4 of Royal Legislative Decree 2/2004, of 5 March, which approved the revised text of the Law Regulating Local Finance (Ley Reguladora de las Haciendas Locales), (law regulating Plusvalía) for violating the principle of economic capacity and the prohibition on confiscation, both embodied in Article. 31.1 of the Spanish Constitution, and this is especially evident in those cases in which the tax payable is even greater than the increase in assets or profit obtained by the taxpayer when selling his property.
  • The Third Chamber of the Supreme Court considers it “essential to remember” that the principle of economic capacity must be respected for all taxes. This may be actual or potential, but never non-existent, as would be the case where the transfer of ownership of the land in question does not entail any increase in value.
  • In respect of the prohibition on confiscation, after referring to the jurisprudence of the European Court of Human Rights and the Constitutional Court on the subject, the recent ruling warns that it should be interpreted as an impossibility for the fiscal system to deplete taxpayers’ resources since “what is prohibited is not confiscation but rather that the tax has confiscatory proportionality.
  • Such a tax places an “excessive”, “exaggerated” and “disproportionate” burden on the economic capacity of a taxpayer by requiring the “allocation for payment of the whole or majority of the actual or potential resources imposed by such a tax”.
  • The Supreme Court considers that the assessment to this tax when there is no benefit or increase in the value of the land is “contrary to law – since it implies a clear confiscatory scope – an assessment of the Tax on the Increase in Value of Urban Land which, applying the corresponding articles of the Law on Local Tax Authorities, establishes a tax liability that coincides with the increase in value shown as a result of the transfer of the land, that is, that it covers all the taxable assets”.

E-MAILS CAN BE USED AS EVIDENCE IN LEGAL ACTION

It is increasingly the case that legal disputes are grounded in private email correspondence between the parties.

This type of private correspondence creates serious problems in court cases since, in many instances, it just consists of printouts of digital communication which, once the case has started, can easily be contested by the party whose case it harms because it lacks an authenticated signature, verifiable date, or digital certification of the email’s contents.

On 23 July 2020, however, the Spanish Supreme Court ruled that emails can be regarded as a wholly valid and probative form of evidence, so that henceforth they may be presented as private documentary evidence in any legal proceeding as long as, in my opinion, they possess the following requisite guarantees of authenticity: Continue reading “E-MAILS CAN BE USED AS EVIDENCE IN LEGAL ACTION”

DEADLINES FOR LEGAL CLAIMS EXTENDED TO 28 DECEMBER BECAUSE OF Covid-19

While Spain was in a state of emergency (estado de alarma), businesses were allowed to extend the deadline to claim debts from 7 October 2020 to 28 December 2020. In October 2015, legislation reformed Article 1.964 of the Civil Code so that personal claims without a specific term expire after five years instead of 15, as formerly. As a result of this reform, debts without a specific limitation period and which were due by 7 October 2015 (the day after the law came into force) are subject to the 15-year limitation with a deadline of 7 October 2020.

Since the declaration of the estado de alarma, however, these deadlines have been extended by 82 days, so that creditors have until 28 December this year to claim debts and avoid suffering losses due to late payment by debtors.  Continue reading “DEADLINES FOR LEGAL CLAIMS EXTENDED TO 28 DECEMBER BECAUSE OF Covid-19”