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The expert real estate lawyer It is one lawyer who specializes in civil law, urban and mortgage to provide the best services in these areas

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These are best suited professionals when in charge of housing issues, building, auctions and horizontal property, inter alia.

We explain some of the most common areas of work of expert real estate attorney and letter of our services, He is waiting to assist you if you encounter needs in this area.

Horizontal property

The horizontal property is the property regime that combines a proprietary elements (generally, homes and commercial premises or garages) with a shared or common element (the building or land in the commons are locked).

This form of organization is designed to delimiting private property and regulate the system maintenance and administration of the common part. This forced condominium is governed by the provisions of the Law 49/1960, of 21 July, Horizontal Property (LPH) and the Statute of the Owners. Also, the community may include an internal regulations to complement the above rules.

So that the proper administration of the common elements requires knowledge of the LPH and civil law in general. But as the neighbors do not have to be lawyers, questions often arise about how to manage communities:

  • You can alienate the goal of building? If so, how?
  • Can I force my neighbors to install a lift?
  • How I can avoid paying the spill to paint the stairs?
  • Can I install a roof on my terrace for private use?
  • My neighbors refuse to install the air vent bar, what do I do now?
  • The property manager has run off with the money of the last financial year, How can we claim the funds?
  • 2nd A neighbor does not pay for a year and is hindering the Boards, Is this legal?

The list could go on for pages, because the horizontal property is a extremely litigious regime. Why a specialist in real estate law is very helpful in resolving these issues. Advisory services and preventive facilitate decision-making and if it comes at the time of going to court may settle the dispute through their experience.

Inconsentidas claims for works and nuisance

The inconsentidas claims for works They are relatively common in the communities of condominiums. Sometimes they occur because one of the owners has changed the aesthetics of the building (for example, acristalando installing an awning or your balcony).

At other times neighbor motivation they are more Spurious, and tries to make yours a common element or appropriate part of the common space by performing works of coverage or enclosure.

It is also common that the neighbor is doing maintenance work at home and take them to repair common elements such as decks or downspouts, in anticipation of the future repair is most annoying or harmful.

Whatever the motivation neighbor who performed the work inconsentida, is shall entitle the Community to exercise the compensatory actions, resolutive or corresponding vindicatory.

Clear, if the commoner who performed the works shows that he did in the interest of the community and responding to their passivity, Supreme Court grants the right to this impact on the expenses incurred (STS n.º 16/2016, of 2 February and other). The same right will assist you when you have done the work or improvement by reasons of urgency.

Regarding the annoying activities, It should be noted that the LPH itself onto its art. 7, whereby the above question is regulated.

Injunctions Art. 7 LPH

When a neighbor performs prohibited activities, annoying, unhealthy, harmful, dangerous or illegal, LPH allows the community to act against him.

First, the president must require the cessation of these activities, can apperceive about starting legal proceedings. If the neighbor does not stop its malicious action, the Board may authorize the president to start injunction.

This action follows the channels of ordinary trial. To start must include the certified notice and heads to obtain the cessation of activity, and compensation from deprivation of the right to use the property or premises for a period of up to three years. If the offender is not the owner, action could terminate the lease and order his release.

So the services of a real estate lawyer both capital can be invested to recover what an emergency repair to remove the building or annoying neighbors who perform illegal activities.

Real estate contracts

Hiring real estate refers to the contractual practice whose object is immovable property. Among the most typical examples can be found:

  • Buying and selling real estate.
  • Rental housing.
  • Renting commercial premises.
  • Arras contracts or reservations.
  • Exchanges of land the sun.
  • Constitution of a leasehold.

While hiring is a plot of the civil law, when the object is a property come into play certain particularities. Why it is advisable to have the services of a professional who understands and master them.

judicial forum and applicable law in international real estate contracts

The particular nature of real estate is able to drag the litigation where disputes are to be held around the same. In fact, even at international level the competent court to resolve issues surrounding real estate contract is the one in whose judicial district the property lies.

This element has special weight in areas such as the coast, which it is a common practice that European citizens buy properties where spend the summer or lease as an investment.

The situation is exacerbated on the islands, where it is common for European citizens renting properties to other, of different Member States. When disputes arise should be resolved in court lies the property.

Also, in some cases the Spanish law applies imperatively or subsidiary these international real estate contracts.

Ultimately, a expert in real estate law Spanish can properly manage the international element of recruitment.

economic impact of operations

Real estate contracts are put into play very significant amounts of money.

When they held with a particular, Very often this is buying renting your home or commercial premises where will provide services. So you are risking a significant amount of their income or their assets. In fact, in most cases buying a home represents the largest investment made by an individual throughout his life.

On the other hand, when they concluded between professionals or companies, often they mobilize large amounts of capital. This type of contract depends on where to establish its headquarters or its outlets a company, or prosperity or bankruptcy of a property developer.

Also, hiring of properties tends to unfold lasting economic effects. Earn an income from leasing to determine the place of residence or service delivery. So the mere breach of a lease can be very annoying transcendences (tenant get home) or expensive (closing a business).

In conclusion, when the stakes are so relevant it is best to leave the matter in the hands of someone who has already successfully faced this type of situation.

Leases

Leases or rentals are another source of legal problems. Especially when it comes to housing or commercial premises in the town center, when they are linked to the Law 29/1994, of 24 November, Tenancies (LAU).

The lease involves a delicate legal relationship:

  • The lessor receives an income in exchange for ceding the enjoyment of your property. Often it depends on this income. But even when it does, It is threatening the integrity of a valuable property. Also, there is fear (not unfounded) the tenant may damage the property and not be responsible for insolvency, or it afinque in housing and not abandon the contract ending.
  • The lessee comes to enjoy a property in exchange for payment of rent. And this property often constitutes habitual residence or the place where your business operates. So it is very important to him that fulfill the conditions stipulated in the contract. This includes the income does not rise or that the home meets its obligations, as it is to take over certain damage.

Therefore, It is a element for both sides, it is essential to have a lawyer specializing in real estate law to arbitrate the relationship. Which do not usually, which explains how often it goes to court because of problems in leases.

It is essential that a real estate attorney to assist you when writing your lease. Even if it means an extra cost, This will be richly rewarded during the life of the contract and to the extinction of the same.

On the other hand, It is advisable to have the advice of an expert during the term of the contract, to answer questions as:

  • Who has to pay for repairs to the property.
  • How often you can climb income.
  • Whether to retain furniture or appliances that do not want inside the house.
  • How to distribute the tax burden and the cost of supplies.

Last, And at the worst of situations, leasing specialist will be best placed to defend the claims of each in court.

Benefits of expert real estate attorney for landlord

You have a real estate attorney to prevent the landlord problems completing the contract, the most frequent:

  1. The return in poor housing, the need to claim damages and repairs later.
  2. The tenants vacate the property, with the need to urge an eviction to retrieve the same.

So, any real estate expert lawyer will be able to pursue claims by the most appropriate channels to ensure its collection. In the same way, knowing the Civil Procedure Law and the practice of local courts, You may request the release of the occupants of the apartment to regain possession of it as soon as possible. It must take into account that there are ways to hinder the release of housing can avoid a specialist, while that could hinder the actions of a lawyer unfamiliar with this field, delaying for months the recovery of the property.

Benefits of expert real estate attorney for the tenant

You have a real estate lawyer will help the tenant with frequent problems update attribution of income and expenses. Indeed, one of the biggest problems facing the lessee (especially professional or entrepreneur) is the rise in income.

This must be agreed in the contract, so that the home should not violate the provisions. However, It is common that the landlord try to climb over the agreement or take the time to novate the contract to shoot the price of the rent.

On the other hand, LAU allows negotiate the distribution of the property expenses, meaning that the absence of agreement in writing will be the landlord who must take charge of non-susceptible loads of individualization. Also, He attributed to the lessor performing repairs preserving the habitability. Last, the execution of works entitling a proportional reduction of income and compensation for damages.

How are you often conflicting items, have the assistance of a real estate expert lawyer can be a significant savings in time, money and trouble for the tenant.

swaps

The swap is the legal name for the exchange. So a real estate swap contract is one in which two people exchange properties or property rights of this nature.

Swaps are very common in cases of inheritance, reparcelaciones, sales and purchase deals in batches or solar. In fact, a real estate practice very common is to make a future exchange, through which the owner of a solar delivers it to the builder so you can make your building in exchange it gives you one or more housing when this is complete.

Like the other agreements we are analyzing, is not uncommon that certain procedural complications present swap. Some typical problems in this business are:

  • Occasionally, after finalization of the swap contract permutantes one realizes that the property you will receive is not owned by the other. In such a case you will have to terminate the contract. Also, If you gave your part is likely to have to go to court to bring an action for recovery and, if, other damages.
  • Another similar case is that as one of permutantes have received your part, This will be withdrawn by dispossession. In these situations it should also be requested judicial assistance to retrieve the delivered, unless the other permutante collaborate with repairing the situation.
  • It is also often received the property are detected in the same hidden defects. Or even that, a lack of administrative licenses or features the farm, unskillful this result for the purpose for which permuted. In these cases it is very important to know the differences between the doctrine of hidden defects and of the aliud pro alio, since each of them has some effects and a procedural duct.

Ultimately, the best way to resolve all disputes that may arise over swaps is to hire the services of a specialist. Course, when the least one of the bartered goods is a property, the most appropriate specialist to take charge of the issue will be a expert real estate lawyer.

Sale of properties

As it indicated in the corresponding section, purchasing the residence usually involve increased investment in the lives of many individuals. For companies, the housing stock is a game enough to avoid costly as the sale arise if not within its strategic decisions. Hence the sale of property should always be advised by a lawyer.

It is very important for the prosperity of this business that document the whole operation. Thus the development of Revindication or compensatory procedures in those cases where the purchase is tainted or lost the property will be provided for eviction or other causes.

When the seller is an individual, housing could present certain hidden defects (normal, due to the use and the passage of time) the loads of all kinds. So that buying a home is a particularly risky if not done with proper care.

The sale process is relatively complex, and real estate law specialists are accustomed to working in the same.

However, one is not safe from the vices or defects when you buy the property to a professional. Why the Law 38/1999, of 5 November, of Construction Planning (READ) establishes responsibilities and deadlines for specific warranty the right real estate professional can use in their claims.

For his part, the purchase of a plot, a ship or a local entrepreneur or by a company to expand the business can be ruined if the property no later serves its purpose. However, a real estate lawyer could reverse the transaction when it does not serve its objectives (for example, applying the doctrine of the aliud pro alio if the administration does not grant the corresponding permissions).

Mortgages

Mortgage attorneys perform functions of negotiation, advice and claim. So, in addition to negotiating the terms of a mortgage with the financial institution, can participate in the drafting of the mortgage loan contracts.

In fact these professionals are sadly famous today, since the crisis increased the litigation around the abusive clauses that many banks have been using in their mortgage loans.

typically contentious clauses mortgage

  • Clause soil. These well-known clauses were used in variable interest mortgage loans. The “floor” was a type below which interests could not fall. Thus the financial institution managed to shield a minimum price for the loan.
  • Formalization expenses clause. This clause was used to attribute to the borrower all the expenses derived from the formalization of the mortgage.. The problem is that the lender had to bear part of these expenses, so that the attribution to the consumer of all the expenses can make this clause abusive.
  • Currency clause. Another practice of financial institutions was to offer mortgage loans in currencies other than the euro. The yen or Swiss franc was normally used. The operation was based on the supposed stability of these currencies, that would allegedly be transferred to the loan. The result was a rise in interest rates, that surprised borrowers that they couldn't pay the installments.
  • IRPH. The benchmark mortgage price index is an indicator that was used during the first decade of the years 2000 to determine the interest rate of loans. This indicator turned out to be very conflictive due to the ability of financial institutions to modify it. As expected, by applying IRPH instead of other indices like Libor, Mibor or Euribor, the price of the mortgage loans was much higher.
  • Intereses moratorios. Some mortgage loans have been charged with default interest close to 25 %. But both the Supreme Court and the Court of Justice of the European Union have determined that the clauses that establish a default interest that is two points higher than the remunerative interest are abusive..
  • Vencimiento anticipado. The early maturity clause allows the bank to terminate the mortgage operation when there is a non-payment of the installment., without assessing its relevance. As the clauses discussed above, this turned out to be null too, according to the doctrine of the TS and the CJEU.

Other litigious mortgage practices

  • The financial swap or swap is another contract that has frequently been incurred “mala praxis”. Occasionally, the information asymmetry between the bank and the customer has been used to place a harmful product on the second. The swap works, on paper, as insurance that would cover the high interest rates on the mortgage. The problem was that if the mortgage rates went down, the client had to pay large negative settlements. Thus, the risk hedging instrument became an extra expense for the borrower and a business for the lender.. And generally the high cost of canceling the swap was not reported.
  • Bankruptcy. The increase in mortgage payments can lead the debtor to insolvency. When this happens, must file for bankruptcy. The bankruptcy process is a collection guarantee mechanism for creditors.

The result of these banking practices

The impact of these bad practices in society has been such that the General Council of the Judiciary (CGPJ) ended up specializing Courts in abusive clauses. At this moment, the CGPJ figures in 40.839 the judgments that the Courts in abusive clauses have issued since its creation, June 2017.

These judgments tend to be pronounced in favor of the consumer, swinging the odds success between the 93 and 99,4 % depending on the Autonomous Community. So it is highly recommended to detect and remove unfair terms from our mortgage deeds..

estate judicial proceedings

Real estate legal proceedings are civil processes in which the special mortgage legislation applies, urban planning and real estate. As it will have been understood after exposing the different peculiarities in this type of contracting, knowing the rules and jurisprudence applicable to these institutions is essential for a specialized lawyer.

Course, mastering aspects of international and administrative law. It should not be forgotten that the place where the properties are located tends to determine the forum and the applicable law. But, also, their special importance in legal and economic trafficking makes them link to certain imperative norms.

Among them are the fiscal and tax rules, that come into play in the administration and disposition of these patrimonial elements. Also the entire section of administrative regulations that regulate their uses and obtaining and exploiting licenses.

That is why it is especially important for foreign natural and legal persons who are going to establish real rights in Spain to have an experienced jurist in the matter.

On the other hand, certain imperative norms that limit the faculty of enjoyment and disposition of real estate property. The clearest example is inheritance, insofar as it protects the legitimacy of certain people.

Ultimately, managing a real estate legal process with solvency usually requires the intervention of other specialized professionals. It is the example of riggers and judicial experts, they can solve cadastral or valuation questions, inter.

What kind of property claims often end up in court

We have already talked about numerous real estate contracts and aspects of them that can be conflictive. Course, the contractual interpretation in this area, the classic divergences of opinion are not spared.

But regardless of whether the contract is interpreted correctly or not, there is always someone who tries to stretch your rights, or to avoid the application of norms and imperative principles. And this when no unpleasant surprises appear during the fulfillment of the contract. From surprise clauses that change its economic relevance to material defects that make unfit the object of the contract.

Therefore it is very frequent that they end up exercising actions for termination of the contract and compensation for damages. These can reach, sometimes, daños morales.

The eviction action It is another of the most exercised, it is the only legal way to regain possession of a usurped real estate. This usually goes hand in hand with income claims and the resolution of lease contracts.

In addition to these actions, on which we have already sketched some traces, they often have to exercise claims related to public law. This is the case of auctions and registrations, of which we speak next.

real estate auctions

Real estate auctions are often a great opportunity for investors and buyers, be promoters or families. The auction is governed by its specific rules, which can be public or private law.

And is that the auction may have been called by some private entity, but the most common is that they are Public Administration those who use them to dispose of executed assets.

In either case, the auction is governed by strict rules, trying to avoid the insolvency of the buyer and to withdraw a purchase proposal. So to participate in them you have to advance a deposit and, sometimes, demonstrate one's creditworthiness. For this, guarantees are usually used.

Already at this point you can check the legal complexity of this type of business, because to the concurrence of buyers guarantee institutions are added such as deposits and guarantees.

Also, after the award there are some deadlines to make the payment and transfer the property. Payment to which tax charges must be added (ITPAJD). Course, this acquisition will have tax effects, so it is interesting to have an expert who controls banking and tax law.

Advantages of real estate auctions

Course, If this form of alienation is used despite all the technical complications involved, it is because it has some advantages.. Mainly, buyers turn to this procurement method because they can get very low prices. The discount with respect to market prices can range from 40 and 60 %, so it is a very lucrative way to buy if you have enough capital and the right advice.

Some aspects of the auction you can help a specialist

The expert real estate attorney can help assess the suitability of attending an auction. An experienced auction attorney can help interpret the rules of the auction and the risks of the same. And it is not uncommon, for example, ownership of a property is transferred but a third party holds a usufruct right. It may also be that the property is transmitted with loads, so you should be well informed about this point. Also, if the home has tenants and needs to be occupied, an eviction will have to be filed.

real estate registration law

Registration Law is a legal branch that is responsible for the registration of rights in a Public Registry, with the aim of endowing the registered facts with a presumption of veracity. In the real estate case, the rights are registered in the Property Registry. The purpose of registration is to offer guarantees to legal traffic.

Registering rights is completely voluntary. It has the advantage of "shielding them", since to defend them later in a possible litigation it will be enough to provide a certification of the registration and it will be the counterpart who must be in charge of proving their irregularity. It also has the disadvantage of locating them, so that it will be easier to seize them in case of an injunction against the owner.

Although relationships with the Registry do not have to be complex, the assistance of a specialist lawyer is recommended, who will be able to recommend when and how to access the registry. Also, If the presumption of certainty of an entry is to be destroyed, the expertise of someone experienced in that task will be needed..

On the other hand, the registration of a property (registration of a property that does not appear in the Registry) will require a more complex procedure. For this, the deed of purchase and proof that it was acquired from the previous owner must be provided, or go to a procedure of voluntary jurisdiction known as the domain file.

The modification of the registered assets must also be reflected in the Registry.. A paradigmatic case is when a farm is divided to deliver it to several heirs or donate it to several relatives or sell a fragment of the original land.

Cases where the property registration is necessary

In certain situations it will be necessary to register the ownership of the real estate. Es el caso de la application for a mortgage. In fact, the physical support of the mortgage guarantee is the Property Registry, so that the credit institutions will demand that the property assigned to the loan payment (mortgaged) is enrolled in the same.

On the other hand, there are cases in which the legislation may grant certain benefits to the owner of the goods (montes, National Heritage…). The "activation" of such benefits will require the registration of ownership in the Registry.

Advice to promoters

Since the real estate bubble burst, litigation in the sector has skyrocketed. Even if It has always been recommended that promoters have the services of specialist lawyers, today it is even more important that they seek the advice of expert lawyers before conducting their business.

The LOE establishes specific obligations for this type of professionals, and a building implies a real tangle of legal relationships:

  • You contract and subcontract.
  • Construction and first occupation licenses.
  • Advice and follow-up to the technical direction.
  • Service contracts, supplies and labor.
  • Occupational risk prevention actions.
  • Urban planning reports and audits.
  • Taxation and taxes.
  • Insolvency
  • LOE guarantees.
  • Total or partial breaches of contractual obligations ...

Ultimately, The particular legal status of the developer makes it almost necessary for him to have the services of a lawyer specialized in real estate law.

Housing cooperatives

Housing cooperatives are promoters who build houses with the aim of distributing them among their partners. In this way they achieve a lower price than the market. These cooperatives are governed according to their statutes, who can help to draft a real estate expert. Also, regional laws apply to them, so they need the advice of jurists who are knowledgeable about regional law.

Like other cooperatives, are organized around a General Assembly, a Governing Council and a Controller, and they work through the participation of their partners. This allows for democratic and transparent decision-making, which is an added advantage to the savings resulting from having promoted one's own home.

How you can help a lawyer specializing in housing cooperatives

Entering a housing cooperative should be a thoughtful act. First, we will have to know what is the contribution to be made to the capital stock, as well as the periodic fees accrued and the cost of financing the project.

It is also important to know the housing bonding regime, it is customary to establish a right of withdrawal in favor of the partners. Last, you have to know what will happen, if, with the dwellings and premises not awarded.

A specialist lawyer can help determine all these points, as well as draft the Statutes of the cooperative. It may also help to exercise the rights and demand the obligations of the members and dissolve the cooperative when it fulfills its purpose..

Town planning

The urban planning lawyer is that real estate expert who focuses on the branch of urban law. It is, therefore, from a highly specialized professional, because urbanism presents certain very characteristic features.

Among the tasks that are his own is the study and counseling in Urbanistic planning. Planning is used by Public Administrations, professionals and individuals to determine how the city itself is going to develop.

Another field of action is management of this planning. Management can be public, private or mixed, Therefore, the functions of the lawyer will depend on the applicable model. Therefore, the specialist must be able to intervene in the urban transformation actions.

Some of the most common issues in the urban sector have to do with the expropriations and licensing. Other frequently disputed aspects are land use, urban sanctions and the reinstatement of legality after an offense.

In the most extreme cases, a planning attorney can deal with urban crime, what are attributable to promoters, builders and technicians when they carry out their actions without authorization or on undeveloped land. The most typical examples of these crimes are buildings in protected areas due to their landscape or ecological character..

These crimes carry prison terms of up to three years, special disqualifications of up to four years and penalties of up to triple the benefit obtained. Also, you can order the restoration to the original state and the relevant compensation, seizing the profits.

In crimes related to spatial planning, the Penal Code provides sanctions for legal persons, and nothing prevents them from entering into competition with other crimes, as against natural resources and environment or on historical heritage.

The advantages of attorney

Law is an extremely compartmentalized discipline. That is why it is common for professionals to specialize in one or another branch., and even in certain types of processes.

In fact, each legal branch studies a very specific area of ​​legal problems. For example, criminal law is reserved for crimes, the social to labor issues and the civil to private relationships.

But within each of these "plots" there is a specific procedure, with particular rules, and characteristic customs and techniques. So, the same steps are not followed in a labor process as in a civil one, Nor does a fact in an administrative process have the same significance as in a criminal one.

But beyond that, Each legal branch is subject to its own doctrine and jurisprudence. Y aunque la jurisprudencia no tenga en nuestro sistema jurídico el mismo peso que en los países de la Common Law (todos hemos visto películas y series estadounidenses en las que los abogados rebuscan argumentos jurídicos en compendios jurisprudenciales), lo cierto es que es casi tan importante como la ley.

La jurisprudencia es la que interpreta cómo se aplica la ley. De modo que el técnico del derecho debe conocer la jurisprudencia aplicable al caso que está estudiando. Esto quiere decir que para defender con éxito un caso, el abogado debe conocer:

  • Los principios generales aplicables a la rama jurídica.
  • Laws (procesales y sustantivas) aplicables. Se entiende Ley en sentido amplio, porque incluye reglamentos, órdenes y normas de derecho internacional y, especially, europeo.
  • La jurisprudencia sobre la materia.
  • La práctica en el tribunal donde se ventila el caso.

Como podrá comprenderse de esta exposición, el mejor abogado es aquél que se especializa en un campo concreto. Y cuanto más específico sea su campo, más posibilidades habrá de que pueda defenderlo con solvencia.

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