Gecko Towers 28.10.20
So I have taken a vow not to mention what we are now calling the “B” word. In a long line of similar abbreviations including the “C” word – yes “C” for COVID – ok, the “S” word and the “F” word the final knockings of the “B” word loom on 31st December 2020.
For many, aside from those issues that have been debated long and hard for nearly half a decade, there is one issue I hope it’s not too late to draw your attention to.
This should be of particular interest to the following people or groups:
1. If you are the President or Committee Member of a Community of Owners in Spain that is holding a favorable judgment against one of your owners who has not paid their share of community fees and you have so far had no success in collecting in your judgment debt. OR
2. You are a Spanish or International lender that is holding a defaulted mortgage where the former owner of a property has absconded defaulting on their mortgage and leaving in their wake community fee debts, local Town Hall/IBI, along with a litany of other unpaid utility bills. You hold a judgment granting you the ability to repossess the property and to initiate collection proceedings for any amount of the mortgage that is left unsettled by the on sale of the repossession. OR
3. You are someone who has been successful before the Spanish Courts and has received a non-appealable judgment against a British resident who has no appreciable assets in Spain upon which you could seek to recover the judgment debt.
There will be others for whom this is relevant but my aim, for now, like many other facet of the “B” word process, is to highlight that there is a closing door.
For years by virtue of various European Directives and associated Regulations those who have obtained a court judgment in one Member State of the EU against a resident from another Member State can have their judgement enforced in exactly the same way as those locally issued judgments.
Member States may enforce ‘uncontested’ judgments by virtue of what is called the “European Enforcement Order” Regulation. To be considered ‘uncontested’ the decision of the court must result from what is called a “Consent Order” that is approved by a court or results from the “loser” not rejecting the “winner’s” claim or failing to show up at the proceedings to contest the claim. Once established that the EEO Regulation applies, the “winner” may apply for an EEO Certificate and this will then be enforceable as though the judgment was granted in the Member State where the “loser” lives.
Further, if there is simply no dispute, for example, as to the amount owed, whether or not proceedings have been issued in Spain, and this is particularly useful for things like Community Fee debts, the President of a Spanish Community of Owners can apply to the English Court for what is called a “European Order for Payment”. Having been granted this can likewise be enforced in England in an identical way to a regular English issued judgment.
The window for those actions effectively shuts at midnight on 31st December 2020.
If you have actions pending then the best advice is to get a move on, and quickly. If you are considering what to do about you Spanish debt issues it may be sensible… er like yesterday … to have a conversation to get the ball rolling before your ability to act is lost.
Post the 31st December 2020, I am not saying that you will be unable to take a legal action action against a resident of another country but it is anticipated that the enforcement of successful judgements will become more complex.
For the life of me I have no interest in returning to the days of pre-bilateral extradition treaties and I make no suggestion that the Costa del Sol will one day reacquire it former crime related soubriquet, but with the demise of the European Arrest Warrant, associated Directives, Regulation and Interpol file sharing, there is an imperative for the law makers in both the UK and Spain to knock their heads together to arrive a new and workable solution.
Much of the negotiations that have progressed over the last year have focussed on Trade and they seem to have stalled. I have seen precious little commentary on a sensible strategy that may be available post 31st December 2020 to an aggrieved creditor. We live in a global community where those who have a legitimate grievance in one country must be able to seek redress in another – even a near neighbour. So far there seems uncertainty at best.
Should you be interested in discussing the legal process involved in buying a property in the Marbella region, we would be delighted to assist you. Our team of bi-lingual, highly experienced and wholly independent team of Abogados are ready to help you.
Please call me, Mark FR Wilkins, during usual business hours on +34 600 343 917 or, if you prefer, please e-mail me at mark@roslegal.es
Please note that our posts are for general interest. They are no substitute for proper legal advice tailored to your specific circumstances as provided by a qualified Abogado who is experienced in the application of the Spanish Law.
© Mark FR Wilkins 2020 All rights reserved.