No hiding place?

LAST UPDATED: 11 Jan, 2015 @ 21:48
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No hiding place?

SOME days ago, an interesting legal matter was raised by a customer who had received a demand for unpaid community fees on his Spanish property, sent directly to his home in Liverpool.

Delivered by 2nd class post, the letter came from a UK firm of solicitors acting on behalf of the administrators of a Fuengirola urbanization.

It raises an important legal question: can a Spanish Community of Owners legally pursue such debts through any EU Court?

One such law firm specialising in debt recovery seems to have the simple answer to this, stating: “Where defaulting owners are resident in the UK or Ireland, we avoid the delays and difficulties described above by recovering the debt directly in an owner’s country of residence.  “This we do by relying on the European rules permitting debt to be recovered throughout the European Union, no matter where that debt was generated within the European Union”.

The ‘European rules’ referred to are none other than the REGULATION (EC) 1896/2006: Creating A European Order for Payment Procedure, and the lawyers would have invoked Article 2, which says:

‘This Regulation shall apply to civil and commercial matters in cross-border cases, whatever the nature of the court or tribunal. It shall not extend to…claim arising from non-contractual obligations, unless…they relate to liquidated debts arising from joint ownership of property.’

A simple answer to a fairly simple question then?

So we thought, until Spanish judges got involved to upset the EU consensus in a recent seminar held on the matter.

Out of the eight participating magistrates, only one accepted that both the Spanish and EU debt recovery procedures can coexist and therefore, be alternatively used by Communities of Owners.

The dissenting judges argued that, although the EU Regulation specifically deals with this, Spanish laws and tribunals should take precedence inasmuch as:

  1. i)      The debt is classified as ‘ob rem’, i.e. attached to a property, thus necessarily connecting the matter to the local Court where the dwelling is located.
  2. ii)   According to art. 9 of the Horizontal Property Act, all owners are obliged to designate a Spanish address for notifications, thus impeding the application of foreign Courts and laws.

The matter is of great interest as, once again, the Spanish judiciary clash with EU pragmatic lawmakers who are always keen to harmonize diverse legal systems.

But then, can Spain be allowed to cherry-pick the scope of application of EU laws when it has adhered to them, formally, as opposed to countries such as Denmark which have opted out?

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Lawyer Antonio Flores is the legal columnist for the Olive Press. Antonio has been practising law since 1997, year in which he began working for a large law firm in Marbella as a Property Lawyer. In 1998 he left the company he had joined a few months earlier, and used his knowledge and the experience gained to build his own practice. He is known throughout the community as independent, reputable and trustworthy. Through a combination of strong work ethics, determination and international exposure, his competence of Spanish Law is unparalleled and demonstrated through his fluency in English and Spanish.

5 COMMENTS

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  1. I am not a lawyer and do not wish to cherry pick from google but it’s about time some of these cases were taken in a UK or other european court as maybe then owners in communities with defaulters can get both justice and the monies owed to them..In our community we had owners renting out property thus generating income but paying no debts to the community or anyone else for that matter. We had another owner who bought rhe apartment with a 100% mortgage, paid one months payment to the bank, paid the community nothing, ever, and managed to stay for five years before he was evicted,,,,,,

  2. One suggested approach would be to use the UK Lawyers on a CONTINGENCY BASIS to get monies owed by the UK Owner, padlock his Apt door until all monies/fees are paid and if the Owner doesn’t pay up, let THE OWNER pay to take the case to local or EU Court! Cheaper & faster to pay up b4 he dies of old age

  3. Marion,
    do you really want to line the pockets of the legal profession?

    The developers have all declared themselves bankrupt, of course they all have money stashed away, probably in a Crown Colony tax haven.

    The reason the Spanish are taking this action is because they know the Brits have assets they can get their hands on.

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