Tag Archives: certification

The european order for payment procedure

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The tardiness of debtors is a well known and frequent problem for business players. Naturally this problem increases in times of crises. An instrument which is not used very often to enforce a debt is the European order payment procedure. When clients consult a lawyer they often believe that if a debtor moved into a foreign country and didn’t leave any asset in Spain there is no possibility to assert the claim. On these grounds they write off their receivables. But there is always a possibility to enforce the debts. It exists a especially easy method if the debtor lives in another country of the European Union.

The european order for payment procedure is legally regulated since 2006. The European regulation 1896/2006 of the counsel and the European Parliament is released in the Official Journal Nr. L 399  dated 30.12.2006. As usual in european procedural law this is a communication system between juridical authorities and parties based on a mutual confidence of the member states of the European Union. Part of this basis of trust is the belief that all courts of justice of the European Union’s member states are credible and that the systems of public communication particularly post are credible as well.

Furthermore laws like this always want to simplify the communication between the administration of justice and the party of the proceedings in the different cultures, tongues and countries. This would be done with publishing officially translated forms in the official journal of the European Union. Because of this further costs and interpretation issues could be avoided.

It should not be forgotten that this European law is directly applicable and there’s no need to transfer it into common law.

In any case this is a possible procedure to the creditor of recovering receivables. However the creditor is free to use the old fashioned way as well, if he prefers it. The european order for payment procedure pretends to be significantly easier and quicker and it avoids any procedure leading to a judgment as well as an allowance of existing deeds between the different countries.

The creditor only has to present the official form to the competent court of the originating country which has to fulfil different requirements and will be sent by the court without further analysis to the debtor to his new residence. The court only checks the compliance with the formalities.

If the court doesn’t accept the form there is the possibility to appeal against this decision at the same level of jurisdiction in accordance with the national law. If the court releases the default summons the debtors has two possibilities, either he fulfils the requirement or he oposes. If he does neither of them the court of the originating country releases an executory title which accepted in every country of the European Union.

Carlos Prieto Cid, Lawyer

This article in German

Legalization of buildings outside the law

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Traditionally it has been possible in our country to legalize buildings outside the law through the mere passage of time. However, the Law 8/2011 has added new requirements when recording new buildings in the register of deeds, giving more legal security to the system.

When selling a property, the buyer usually requires financing. To obtain financing is not only very difficult nowadays, due to the current banking situation, but also virtually impossible if the buyer can not offer a mortgage to the bank that lends him the money. To make it possible for the bank to register the necessary property mortgage, the real value of the estate to be charged should be reflected in the register of deeds. This is only achieved when the elements that provide greater value to the property, that is, the existing buildings on it, are properly registered. To register these edifications, a notarial declaration of the new building is always been necessary and this document must be submitted to the register in order to be recorded, accompanied by many documents to control its urbanistic legality.

Despite this, there was always a back door to buildings that violated the law, which could end up sneaking in urban registration of the property, with the economic and financial consequences discussed above. The mere passage of time with no reaction of the relevant planning authorities, the municipalities, leads to the possibility of regularization of these illegal edifications. As the deadlines for the sanctioning procedures passed and the planning authorities could no longer prosecute these buildings, they could end regularized, if certain conditions were met. But in the present days, the last reform of the Land Act we mentioned above, has added a key requirement, prior to the possibility of recording the irregular building in the register of deeds: we should show a municipal certification defining the content of the situation outside the law of the building we intend to record.

Article 20.4 of the Act indicates that
“4 …. in the case of constructions, buildings and facilities for which no appropriate measures to restore legality involving urban demolition can be taken, because the relevant limitation period has passed, the registration record of the completion of the work shall be controlled by the following procedure:

  • a) the notary deeds with the statement of a new building can be recorded in the Land Registry if they are accompanied by a certificate issued by the City Council or by a competent technician, or a descriptive notarized certification of the property or a cadastral descriptive and graphic certification of the property, when these documents confirm the completion of the work in a specified date and the description coincides with the title. For this purpose, the Registrar shall verify if there is a notation in the Register of Deeds because of the initiation of an urban discipline procedure for the property subject of the construction, building and installation in question and that the site is non demanial or affected by easements for public use.
  • b) The registration entry will record the outside-the-law position of all or part of the construction, building and installation, in accordance with applicable urban management. It will be necessary to provide the administrative act by which the situation is declared outside management, with the proper delimitation of its contents.
  • c) The Registrar shall report to the City the respective entries in the cases included in previous issues, and such notification will be recorded in the inscription”

This new regulation, in force throughout the state, which requires prior to registration the provision of a municipal certificate on the content of urban illegality is coherent with the goal to be reached with the law of passing “registration measures designed to ensure and strengthen certainty in the real estate contracts and business, through the Land Registry” and “emphasizing on register protection measures which aim to prevent and prosecute in the future situations that occur today and that are impacting very negatively on investment in real estate, both domestically and internationally“.

Let us hope that eventually these legal measures have the desired effect and strengthen the security image as necessary to encourage property investment, especially by foreigners.

Carlos Prieto Cid, Lawyer

This article in German