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Hi Sir, José Magadán, spanish attorney
Your question its really very hard to answer as you know
First you talk about you bought, and in one of the steps you probably need cash and you take a cash partnert in your business...
We need to know what kind of agrement you signed then and the obligations and rights were included in that contracted agreement
Let me know about the signed contracts and I will tell you my opinion about your case
Jose, the question was addressed to an English lawyer called Law Denning. Sorry, I do not know how it got onto the Spanish Law site.
Where do you want to put it?
I could ask moderators to change it
I have checked Jose and it was posted in UK Law ... but for some reason it was also posted in Spain Law. Any way, I am waiting for an answer from UK Law. But thank you for your help.
I could ask you another question in anticipation of losing the case in the UK courts if that is okay?
I live in Spain. If I lose the UK trial the judge is likely to award around £70,000 in costs to the claimant. I will then be made bankrupt. But that will have to be in Spain where I live and where I work. They will try to possess my house but it is under a private mortgage to my wife's sister. So can the bankruptcy agent seize a house of the bankrupt for selling it in auction if there is an existing mortgage and the mortgagee does not want the house to be sold?
Its possible but very hard to manage it in Spain because first he should need to get the validity of the Uk sentence in Spain
Once she got it he sould need to execut it
That surely will be through the Brussels Regulation and will be enforceable?
I dont think so
In all cases, the propiety is on your name?
He will need to get the validity of the sentence in Spain, and once he got it to ask an spanish court to make it enforced
As I understand it, the order of charge on the property is in the order of (a) the mortgager, then (b) my wife who owns 50% and only then (c) the claimant from the UK? So can the third in the list force a sale. The house is jointly owned by me and my wife, with a mortgage of 120.000 Euros from my wife's sister.
So, I see time and riskes... you could now to sell out the hause and take out your name of it
I dont think that anybody take the legal procedure to execute the half of a propiety with a mortage
Expenses, time, and a hight risk to lose all you put in the procedure...
I do not see riskes for you
That is not legal if it is to avoid a bankruptcy charge. It has to be done at least two years before the bankruptcy otherwise it is avoidance. But we have the private mortgage and the mortgager does not wish for the house to be sold as she prefers to receive the mortgage payments and not her loan repaid. That is the legal position I am arguing.
Its not ilegal if you make it before you have the obligation to pay
And you do not have to pay now...
In Spain you could sell out without problems...
But Jose, the costs of selling my half (with all the taxes and charges) is high because of the valuation at the catastral. So the tax will be more than 10.000 Euros which I do not have. That is why we went for the private mortgage which was for a 120.000 share of the property. Then the charges were 3.000 Euros only. This has been done and the mortgage is in place. So are you confident that if the bankruptcy is enforced in Spain (through EC law) that the bankruptcy agent will not be permitted to sell the house to recover the bankruptcy charge?
Well, the other half its of your wife... you could make a division de cosa comun, as it is call in spain
It does Not pay personal taxes and transmision tax its not 6 per cent, its 1 per cent
It does mean that you put the propiety in her own name only and the creditor never could go againts her
The house was built for 600.000 Euros and is currently only worth 300.000 because of the crisis. So we do not want to sell now because of the loss. we need to wait for the market to improve ... and we do not want to leave Spain!
You do not have to sell... you just need to put on your wife names. If the creditor could do anything against her its an easy answer
Ask in the notaria about the cost of making a division de la cosa comun
Taxes are just 1 per cent of the catastral value
Ad the cost of propiet regiuster and notario and thats will be all
That is interesting. So a division cosa comun enables me to sell my half at the current valuation which equals 50% of €300.000. So 1% of €150.000 would only be €1.500 to pay in tax, plus lawyer's fees? Is that everything?
That it is, but its not 300.000, the value will be provided for the consejeria de hacienda, tax oficce, of the province you are
May be little higher but the tax its 1 per cent
I must leave my office now
We could continue in one hour time
Please do not forget to rate my answers and I will be glad to help you in your case
Okay Jose, thank you. I will look into it. I will finish now and rate your response. Again, thank you.
I am ussually on line in this site
So I am easy to reach