EU new Inheritance regulations affecting EU residents in Spain

November 7th, 2012

The Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession is applicable from 17th August 2015.

According to the new regulation, EU citizens residing in Spain will be subject to the Spanish succession law despite their nationality, unless they have a written will.

Succession laws in Spain abide by the force heirship provisions and it is fundamental for international residents in Spain to have their will in good order, in addition to the one in their countries.

Konsilia has been serving the international expatriate community in Spain since 1982 and we are very happy to draft your will or advice on any other legal or tax issues related to Spanish residence. Please contact Jose Manuel Diaz at josemanuel@konsilia.es

Foreign Notary Deed in Spain

August 3rd, 2012

A recent press release from the Consejo General del Poder Judicial (General Council for the Judiciary) reports an interesting ruling of the Spanish Supreme Court. The decision, of 19 June 2012, ratifies the one of the previous instance according the registration in a Spanish Land Registry of a deed of sale of an immovable located in Spain, notarized by a German Notary. Taking into account the rules of private international law the Supreme Court confirms the validity of the foreign deed in Spain as a basis for a Registry record.

In the instant case litigation arose from the sale of an apartment in Tenerife, which was acquired undivided by two German citizens. One of them sold his share to a third party with the consent of the other; the transfer was formalized by a German notary and the acquirer sought to have it recorded in the Land Registry of Puerto de la Cruz. The registrar refused, considering that the German document lacked full legal force in Spain; his decision was upheld by the General Directorate for Registries and Notaries, but rejected on appeal both by the Court of First Instance and the Audiencia Provincial, as well as by the Supreme Court.

According to the Supreme Court, a decision such as the one taken by the registrar and supported by the General Directorate cannot be approved under the current understanding of the freedom to provide services at the European Union level; also, to require the involvement of a Spanish Notary would mean an unjustified limitation to the freedom of transfer of goods. Article 1462 of the Spanish Civil Code, which applies in the case, equates issuing of a public deed with delivery of the sold thing; the provision does not require that the deed be granted by a Spanish Notary public, therefore a formally valid deed granted by a foreign Notary will have the same effect (in terms of equation with delivery) as one notarized in Spain. The Supreme Court believes that this interpretation matches the EU tendency to avoid duplication of formal requirements, once they have been fulfilled in a member State for a purpose identical or similar to that required in the State where the act thus documented aims to produce effects. To back this opinion the Court leans on the Commission’s Green Paper of December 14, 2010 entitled “Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records”; on the consistency of the understanding with the Spanish regulation on foreign investments, which does not require that contracts be notarized by a Spanish Notary; and on Article 323 of the Spanish Civil Procedure Act, which accords full evidential effect to public documents formalized abroad when comparable to the Spanish “escritura pública” in as far as the role of the Notary is concerned, regardless of the formal differences.

Two members of the Court do nevertheless dissent with the idea that Article 1462 Civil Code allows for the same treatment to be granted to Spanish and foreign deeds, as, according to the provision, equation between the public deed and the delivery of the sold asset is excluded when the deed states (or it can easily be inferred) otherwise. In this regard, the differences between the German and the Spanish systems for the conveyance of ownership justifies the need for the intervention of Spanish Notaries: only they can safeguard the essential rules of the legal transfer of property that governs our country, which is that of título y modo (grounds of acquisition followed by the traditio or delivery)

Proposal for a Spanish International Cooperation (Civil Matters) Act

July 6th, 2012

As reported by Conflict of Laws, The Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil), adopted in 2000, required the Government to send to Parliament a bill of international legal co-operation in civil matters. Read the rest of this entry »

The Spanish Financial crisis and its source, the Spanish Saving Banks

June 12th, 2012

The Spanish savings banks (SSBs) built-up excess capacity and risk concentration influenced by many stakeholders’ interests, including politicians in their decision-making bodies. SSBs were not subject to typical market discipline mechanisms, and blurred competences between the central government and the autonomous provoked the crisis of the Spanish financial system. Read the full analysis by the IMF in the attached documents.

SpanishBanksIMF

SpanishFinancialIMF

Balancing the Books

June 4th, 2012

£2.9bn, the cumulative worth of the 92 league clubs in England and Wales for 2010/11, up 9% on the previous season.

Deloitte’s Annual Review of Football Finance showed that despite the challenging economic conditions, football clubs are continuing to increase revenues and with £1.2bn paid to the treasury in Tax, football’s worth to the overall health of the economy cannot be underestimated.

Significantly, capital expenditure by these clubs totalled £167m in 2010/11 with over £3bn invested in stadia and facilities over the last 20 years. Read the rest of this entry »

Is Marriage a Legal Contract?

May 30th, 2012

In the Volokh conspiracy blog, the question about  marriage being a contract is asked.

He responded “I thought I’d respond to this on-blog because it illustrates a considerably broader point: In law, as in life, concepts like “contract” aren’t unitary things, so that either something is a contract and has all the properties of a contract or something isn’t a contract. There are different kinds of contract, with different qualities, and different possible definitions for the term “contract.”

To begin with, “contract” is a quite broad concept. I don’t want to try to give a thorough definition here, but suffice it to say that an exchange of promises might well be a contract even if the promises don’t involve money, goods, or even services. Thus, for instance, “Each of us promises not to be anyone else’s bridge partner” can be a contract; it’s an exchange of promises not to engage in certain conduct. (Note that the contract doesn’t promise that I’ll be your bridge partner, just that I won’t be anyone else’s.) Substitute something else for “bridge,” and you’ll have one aspect of a marriage contract. Read the rest of this entry »

Multiplication Philanthropy

May 21st, 2012

Leverage is the mantra of the times in philanthropy, and rightly so. People want to know that the charities they support are using donations as effectively as possible. Donors and institutional funders are more demanding, more discerning, and less detached. They’re no longer content with writing a check and securing their place in heaven. They want results.

But they’re looking for them in the wrong places. They’re missing the greatest leverage point of all: the multiplying effects of smart investments in fundraising. If you want to maximize the social effects of your donation, why would you buy, for example, $100,000 worth of great educational programming for inner city kids when the same $100,000 directed toward fundraising could generate enough money to buy $1 million worth of it? Read the rest of this entry »

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