JOHN CARLOS I
KING OF SPAIN
To all who present it and understand,
Sabed: That the General Courts have approved and I come to sanction the following Law.
With the term "multiproperty", they are called all the formulas for which the right to enjoy accommodation is transmitted during a given period each year. The interest in acquiring this nature is usually justified in the holiday use of the property: on the one hand, the acquirer has a stable and secure place for his annual holidays; on the other, he does so without having to acquire, and pay, the entire property of the property, thus considerably reducing the investment, adjusting it to its actual possibilities of enjoyment.
From the legal point of view, the figure implies a temporary division of the right to enjoy the good. Despite the fact that on July 6, 1960, a patent for the invention of so-called "summer policies" was registered in the Industrial Property Registry, which attributed to their owners the right to enjoy holiday accommodation for "periods of time". "fixed or variable", this system of tourist exploitation of buildings was unknown in Spain until relatively recent time; if similar formulas of exploitation can be found in other areas, as they are, for example, the Legal system of dulas, traditional in the Canary Islands, which consists in temporarily dividing the exploitation of water between their owners, or the communities pro-divided with the concurrency of the Sunday rights of the greenhouse, agostadero, grasses and labor (every two, three or six years), own of Extremadura, as well as, in our historical right, the The use of pasture and the temporary division of the use and enjoyment of a farm due to various crops.
Sea as it may have been, since this figure began to be applied, it has had a wide development, to make Spain the second country in the world in number of complexes exploited in this way.
Very shortly after the introduction of the figure, the idea that existing legislation was insufficient to provide the same with a proper legislative framework became a common place. This idea was at least hasty. The problem was not so much about legal configuration as to ensure the effective enjoyment of every right.
On the other hand, for the European Union it has been, for some time now, a cause for concern about the large number of abuses in this sector: since the "motion for a resolution on the need to fill the existing legal gap". on the subject of multiproperty, which was submitted to the European Parliament on 17 October 1986, to Directive 94 /47/EC of the European Parliament and of the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of the contracts for the acquisition of a right to use immovable property in Time-sharing arrangements. " Important milestones on this road were the resolutions of the European Parliament of 13 October 1988 and 11 June 1991. It is also worth mentioning the resolution of 14 September 1989, which is part of the field of cross-border real estate acquisitions.
In the end, the European Union itself came to the conviction that the problem was not so much in a theoretical legislative insufficiency as in the fact that it is a sector where the consumer is especially unprotected, This was the result of the drafting of a Directive which would establish rules of exceptional character and which would limit the autonomy of the will to the extent that it would be advisable in this area.
The concrete measures taken by the Directive are as follows:
Established, in favor of the acquirer, a right of unilateral withdrawal during the ten days following the conclusion of the contract. The Directive, in its translation into Spanish, calls it "the right of resolution", and adds the characterization "ad nutum" to indicate that it is exercised without any reason or reason. However, it is precisely because there is no need to claim any reason, and it is not because there is no need for it to exist, since it is a faculty which is granted to the acquirer for the sake of being so, and which it can exercise freely without the need for There is no further condition, it seems more adjusted to call it the faculty of "withdrawal", which is an expression that accentuates this unilateral and unconditional character.
In addition to this power of withdrawal, the Directive imposes on the seller an obligation of information, which is broken down into the following aspects: first, the seller must provide, in favour of any person who requests it, an information document, in which certain extremes are collected; secondly, the contract must contain certain particulars, which are intended, in short, to inform the acquirer of essential aspects of what he is acquiring. In order to make this duty of information fully effective, it is established that, in the event that the contract does not contain any of the particulars required, the acquirer shall have the right to unilaterally terminate the contract within three months, count from their celebration. This power retains in the text the name "resolution faculty", because it has a different nature from that of the withdrawal, as soon as it is necessary to have a prior condition, as is the default, by the seller, the duty of information that is incumbent upon you.
As a supplementary provision of the powers of withdrawal and resolution, the Directive provides that, in the event that the acquisition has been financed by a loan from the seller or a third party, concluded between the third party and the seller, the exercise of the right of withdrawal or of the decision shall also involve the resolution of the loan.
Finally, the Directive deals with other aspects, such as the language in which the contract to be signed by the acquirer must be drawn up or subject to certain powers.
The figure raised two legal issues: one of terminological order and one of legislative policy.
The term "multiproperty" had the great advantage of being in public opinion, to the point of being, by far, the most common way of naming the institution, regardless of whether it was constituted as a form of property or as a form of personal law. But it is precisely that globalizing character with which it is normally used, on the one hand, and the fact of referring to one concrete form of property, on the other, which makes it an inappropriate term for the wrong.
Another option was to use the formula used in the Directive: "timeshare". However, this form of naming the institution is also unsatisfactory. In principle, it seems a more generic term than that of "multiproperty", but it has to be taken into account that "timeshare" is nothing more than the English translation of the English form "time-sharing". The expression "timeshare", although it does not seem to present serious disadvantages for the societarian form of French law with it, is not adequate to include any other formulas, whether they are of personal right (the Greek multi-lease) or real law (the Portuguese periodic room right). In addition, it has the disadvantage that it seems to imply that, among the holders of these rights, what is shared is the time, when it is precisely the opposite, since the headlines are different from different periods of time. exclusionary. For this reason, the expression "right of use per shift" is preferable, in the first place, because it is less committed, in the sense of being a more generic and more descriptive expression, and, secondly, because it fits perfectly with the This is a regulation that is being made. However, there is nothing to prevent the use of this name, or any other, in particular for promotional purposes, provided that it does not contain the word 'property', or it cannot be wrong in terms of the content of the right to which it is references.
The key question of legislative policy was to determine whether various institutional formulas should be regulated or whether their regulation should be limited to one, leaving out the law to others. A middle way has been chosen, consisting of the detailed regulation of a new real right of use per shift, however allowing the right to be set up as a variant of the seasonal lease, to which it will be The provisions of the Law shall apply as soon as they do not contradict their legal nature.
The Law, on the other hand, is not limited to the strict transposition of the Directive, but seeks to provide the institution with complete regulation. It thus determines the possibility of constituting a right of a real nature, whereby the power to enjoy a property is acquired during a given period of the year; it regulates how the legal system of the taking advantage of the right to take advantage of the rights of withdrawal and termination of the European Directive in Spain.
This is not the first time that a Community text is the origin of a broader internal regulation than that required by the Community text and, more so, in the case of directives establishing minimum safeguards for protection.
All these questions can be framed within the civil and commercial private law of the State and, therefore, the Law is dictated by the provisions of Article 149.1.6. a, 8. a and 14. a of the Constitution.
Logically, this is without prejudice to the competences that the Constitution itself recognizes in terms of the conservation, modification or development of the civil rights of the Autonomous Communities.
In addition, the Law contains an express mention of the company of services, essential for the life of the regime and for the proper enjoyment of the acquired right. Without a service company, or if it works incorrectly, the right may not be exercised in practice and it will be of little use to the acquirer that the legal content of the same is in other perfectly determined aspects.
The text is divided into two Titles (civil and commercial rules and tax rules) and developed in twenty articles, three additional provisions, three transitional provisions and one final provision. Title I is divided into three chapters (general provisions, legal status and non-compliance with services); Chapter II, in turn, is divided into two sections (constitution and conditions of promotion and transmission).
Chapter I is dedicated to general provisions. When defining the scope, the Law uses the expression "accommodations" to name the elements subject to the regime. Such expression includes only the elements that are capable of being used as housing. Therefore, the premises are excluded from the constitution, understanding for all the elements that cannot have such a destination and therefore, before the constitution of the regime, the obtaining of the corresponding habitability cards is demanded, a requirement that only makes sense for elements intended for housing.
In addition, it is established that the regime can only be placed on a building, a real estate or sector of these architecturally differentiated to avoid that in a building or group of buildings the owner of only Some or some physically dispersed lodgings constitute a system of rights to take advantage of them in turn. Partial extinction of the scheme is not prevented provided that such physical identity and pre-existing rights are respected. However, the joint operation of a building is permitted provided that the type of holding which has to live with a system of rights to take advantage in turn is another type of tourist exploitation, since in this case the two activities, for material purposes of coexistence, are so close that no serious harm to the customers and the rightholders can be derived from it.
The scope of restrictive application has advised to establish a rule to determine the regime of the rights of use per shift or similar to those that are constituted without complying with the Law, since it is evident that It would be a matter of alleged fraud of the law and should therefore be subject to the solution of Article 6.4 of the Civil Code, which does not in itself seem to be sufficient to prevent the law of the law from occurring in practice.
However, as has been said, all the effects in the field of the Law are included in the season leases which have more than three of them and in which the income corresponding to some or to all contracted seasons.
A minimum duration (three years) and maximum (fifty years) of the scheme is established. Within these limits, all the options of what can be a reasonable time to exhaust the actual possibilities of enjoyment of the acquirer. This limitation of the duration of the scheme is also the one that allows the owner who has constituted it to follow, during the life of the property, linked to the building. This linkage is desirable from the moment when it is considered that what the owner offers is not only a real estate, but also a service during the existence of the right, which is what the nature necessarily explains complex of the relationship between the holder of a right of use per shift and the owner of the property.
Therefore, the owner must ensure that the rights holders receive the due services implied in their ownership. This minimum enforceable guarantee exists from the moment the owner continues to be linked to the property, which can only be so because the rights to the property are not full, but limited.
And the limitation, in this case, can only affect the duration of the regime.
The formalization of the regime in public writing is established as constitutive, and its registration in the Land Registry is mandatory, in order to avoid the possibility of starting the transmissions of Use in turn before both the authorising fedor and the registrar monitor the legality of the scheme and are made public.
Thus, the acquirers, before or after their acquisition, will be able to go to the Registry to obtain the essential information about the regime to which their acquisition is submitted, with full guarantee of their adequacy to the legality.
The granting of the regulatory writing must be the case of the undertaking to provide the services of the essential content of the right of use in turn, unless the owner or promoter expressly states which directly assumes its benefit.
In the section dedicated to "conditions of promotion and transmission" the majority of the rules of the 1994 Directive are transposed. Apart from its restrictive nature of the principle of the autonomy of the will, there are no special problems in transposition, except as regards the case where the contract is concluded directly with a notary. The intervention of the public purse would be sufficient to consider it unnecessary to grant the acquirer the power of withdrawal, since its presence prevents the other party from asserting its preponderance, but since the Directive does not establish No exception in favour of these contracts, it has been necessary to retain that right of withdrawal, although requiring that the same be done by notarial act, as a public document equivalent to the writing in which it has been formalized the contract on a right to take advantage in turn.
The decision-making power which, unless otherwise agreed, is recognised as being in the contract for the acquisition of a right to take advantage of the right of use (Article 13) is justified by the singular nature of such a right, where the value of the services depends on both the services and its content, so it is perfectly logical that the non-payment of the services may involve the resolution of the right. A criminal clause is also permitted to compensate the owner or promoter who chooses to terminate the contract when the acquirer ceases to pay the fees due to the service provider.
The Law, strictly civil, does not impose administrative sanctions for the failure to comply with its rules. But it is obvious that this does not prevent such non-compliances, when the activity is described as a tourist activity by the Autonomous Communities or by the development of the autonomous rules on consumer and user protection, be considered by the legislation of those as sanctionable administrative infractions, without prejudice to the rights that the Law recognizes to the holders of the rights of exploitation in turn. However, the Law seeks to ensure that, through the requirement of very strict prerequisites, the compliance of which is indispensable to constitute the system and whose control is attributed to notaries and registrars, the non-compliances are isolated or, at least infrequent, making the need for administrative intervention minimal.
Title II contains a number of tax rules applicable to the rights referred to in this Law and which are intended not to discriminate in the tax plan from the holders of the actual rights of exploitation by shift in relation to the holders of other possible formulas for the use of part-time buildings.
In fact, if this regulation were not introduced, the actual rights would follow the scheme provided for in the various tax laws for the rights of this nature and, as a result of their rights Real estate enjoyment would, in some cases, result in the application of tax rates higher than those provided for the transfer or acquisition of personal rights.
In accordance with the above, and bearing in mind the particular character of the rules referred to in this Title, which do not constitute, in purity, a specific tax regime, but contain, only, certain specialities which do not prevent the application of the general tax rules and of the provisions of the Tax on Heritage, the Value Added Tax and the Tax on Inheritance Transfers and Acts, as expressly not provided for in this Regulation. Legal Documented, referred to in the aforementioned Title.
In the Heritage Tax, whatever the nature of the right in question, the criterion for its valuation is unifies, for the purposes of its integration into the tax base of this tax, determining the valuation by the purchase price.
In the Value Added Tax, the application of the reduced rate to 7 per 100 is generalized to the provision of services consisting in the transfer of the rights to take advantage of real estate as in other forms of use of immovable property for a specified or determinable period of the year, with the provision of any of the ancillary services of the hotel industry.
Finally, in the area of the Tax on Inheritance Transmissions and Documented Legal Acts, the application of the rate of charge of 4 per 100, which is the same as the transmission of personal rights, is established.
In the final analysis, therefore, the tax system referred to in this Law shall treat the treatment in the cases referred to in the same law as the actual rights for the use of immovable property and other rights of personal nature other than the above, with the aim already stated of not discriminating negatively to the former.
This purpose is fully in line with the purpose of this Law, as well as of Directive 94 /47/EC, since it substantially encourages the acquisition of the rights referred to.
The second additional provision is justified by the Directive itself, which in its Article 9 requires Member States to take the necessary measures to ensure that, in any event, the acquirer is not deprived of the protection which grants it the same. The provision seeks precisely that, as soon as it is the rights to take advantage of the real estate in Spain, by avoiding the possibility that the contract will be subject to the jurisdiction agreed by the parties. In short, it is a question of avoiding possible fraud, the so-called 'international fraud', which can be created by the existence of States where the Community Directive has not been transposed within a common area. because there was no point in the need to do so, as this kind of rights were not marketed in their territories. This same path is the one that the European Union is trying to take in terms of Community consumer protection directives, in order to avoid precisely the fact that their lack of transposition in some Member States would be a means of avoiding the application of the rules laid down by the others for integration into their respective systems. In this way, in this direction, the Community initiative on actions for the protection of the interests of consumers is being taken into account. The provision is also supported, in addition, in Articles 16 of the Brussels Conventions of 27 September 1968 and Lugano of 16 September 1988, and Articles 3 and 4 of the Rome Convention, on the Law applicable to the contractual obligations of 19 June 1980.
As regards the transitional arrangements, it is a question of the law being applicable, in respect of existing schemes, to the promotion and transmission of rights which contain the right to enjoy accommodation for a period of time per year, In addition, for these schemes, in any event, the obligation to adapt within two years from the date of entry into force of the Law. Of course, the adaptation required by the second transitional provision does not seek to transform the pre-existing regimes, but only to publicise these forms of exploitation, with full respect for the rights already acquired. That is why the provision requires only the requirements of Article 5 and not the fulfilment of all the obligations imposed by the Law to which it is proposed to constitute a system of rights of use in turn, once it has entered into force and, even those, only to the extent that they are compatible with the nature of the pre-existing regime.
Civil and Commercial Standards
Article 1. Objective scope.
1. It is the object of this Law to regulate the constitution, exercise, transmission and extinction of the right to take advantage of real estate, which gives its holder the power to enjoy, on an exclusive basis, for a period of time each year, an accommodation which can be used independently for its own way out of the common element of the building in which it is integrated, and which is permanently fitted with the appropriate furniture to the the right to the provision of supplementary services. The power of enjoyment does not include the alterations of the accommodation or its furniture. The right to take advantage in turn may be constituted as a limited actual right or in accordance with the provisions of paragraph 6 of this Article.
2. The system of use by shift can only be applied to a building, a real estate or a sector of which it is architecturally differentiated. All independent accommodation which is part of it, with the necessary exception of the premises, must be subject to the scheme. It will be necessary for the assembly to have at least ten lodgings. It is possible, however, that the same real estate as a whole is subject, at the same time, to a system of rights to take advantage in turn and to other types of tourist exploitation, provided that the rights to take advantage of the right are on the other hand. specific enclosures and for particular periods.
3. The annual recovery period may never be less than seven days in a row. In any case, within a system, shifts must be all the same duration. It shall also be reserved for repairs, cleaning or other common purposes for a period of time which may not be less than seven days for each of the accommodation subject to the scheme.
4. The actual right of use in turn may not in any case be linked to an undivided share of the property, or be referred to as multiproperty, or in any other way that contains the word property.
For the purposes of advertising, marketing and transmission of the right to take advantage of immovable property, any other name may be used, provided that it does not mislead the final consumer and the consumer. the nature, characteristics and legal and economic conditions of the right of enjoyment are clearly detached.
Each of the actual rights of use in turn will impose, in aggregate, the total property of the accommodation or the property, as previously constituted or not a horizontal property on the same. The meeting of a real right of exploitation and ownership, or a quota of it, in the same person does not imply extinction of the limited real right, which will remain for the entire life of the regime.
The owner of the property, without prejudice to the limitations resulting from the regime and the powers of the holders of the rights to take advantage in turn, may freely dispose of its right of ownership under to the rules of private law.
5. The provisions of this Law shall apply to the owner, promoter and any natural or legal person who is a professional participant in the transmission or marketing of rights to use in turn.
6. Contracts for the lease of holiday property per season, which have more than three of them, up to a maximum of 50 years, and in which the income corresponding to some or all of the seasons is anticipated They shall be subject to the provisions of this Law, without prejudice to the provisions of the Law on Urban Leases. Such contracts shall necessarily relate to a given annual season corresponding to a specified or determinable period of that season and to a given or determinable accommodation by its generic conditions, provided that the specified the building or real estate where you are going to enjoy the right.
7. The contract by virtue of which any other right, real or personal, is constituted or transmitted, for a period exceeding three years and relating to the use of one or more buildings for a specified or determinable period of time, on the margin of the This Law shall be null and void, and shall be returned to the acquirer or transferee of any income or compensation paid, as well as compensation for damages suffered.
Article 2. Limits and consequences of non-compliance.
1. They are null and void the clauses by which the acquirer renounces in advance the rights conferred on him by this Law. Also, the clauses that exonerate the owner or promoter, or any natural or legal person who participates professionally in the transmission or marketing of the rights of use in turn, of the responsibilities, shall be null and void. which are proper to him according to that established by that.
2. The provisions of submission to arbitration are null and void, unless the latter are made aware once the question has arisen or are submitted to the arbitration system of the specialized arbitration tribunal which may be constituted, provided that consumer organisations are involved, on an equal basis, in their composition.
Article 3. Duration.
1. The duration of the scheme shall be three to fifty years, from the date of registration of the legal system or from the date of the completion of the work when the scheme has been established on a building under construction.
2. If the scheme is extinguished by the duration of the period, the holders shall not be entitled to any compensation.
Section 1. Constitution
Article 4. Constitution of the scheme.
1. The system of use by shift must be made up of the owner of the property.
Before you can do this, you must:
a) Haber entered the conclusion of the work in the Land Registry. In case the work is started, you must have signed the new work declaration under construction.
b) Having obtained from the competent authorities the licences necessary to exercise the tourist activity, the opening, the necessary for the first occupation of the accommodation, common areas and ancillary services that are required for the destination and the corresponding habitability card. In the event that the work is only initiated, it is sufficient to have obtained the work license and the necessary one for the tourist activity.
The latter, whether the work is completed or only initiated, will only be required in those Autonomous Communities where the marketing of rights involving the right to enjoy accommodation during a period of time per year, in accordance with its legislation, the qualification of tourist activity subject to a licence.
(c) Haber concluded, in accordance with the provisions of this Law, the contract with a service undertaking which meets, in those Autonomous Communities where they are established, the requirements which are required of them, unless the owner, meeting the same requirements, have decided to take them directly.
Service companies may not be domiciled in tax havens and will have to have at least one branch domiciled in Spain.
(d) The insurance referred to in Article 7 shall be concluded.
2. The owner who constitutes the regime on a building under construction must also contract in favour of the future acquirers of rights of use in turn a bank guarantee with one of the entities registered in the Bank of Spain, or a security insurance with an authorized entity that guarantees the return of the amounts paid to the acquisition of the right, updated according to the annual index of consumer prices, if the work has not been completed in the the date fixed or the furniture described in the regulatory writing has not been incorporated when the acquiring the right to opt for the termination of the contract in the terms provided for in Article 10 of this Law. The amounts thus received shall be independent of the amounts to be met by the owner or promoter in respect of damages resulting from the failure to fulfil their obligations.
The guarantees of the quantities delivered to account will be governed, in all that is applicable to them, by Law 57/1968, of July 27, on the receipt of advance amounts in the construction and sale of houses, and their rules of development.
As long as the notarial record is not entered, where the completion of the work is recorded, in no case shall the constituted endorsement be released, nor shall the insurance contract be extinguished.
3. The system of taking advantage of a property in turn will be constituted by its formalization in public deed, and will be entered in the Land Registry. The undertaking which has assumed the administration and the provision of the services shall be provided with the grant of the deed, unless the owner expresses the express expression of the fact that they are directly assumed.
To contracts by virtue of which rights of use are constituted or transmitted per shift before the scheme is validly constituted, the provisions of Article 1.7 of this Law shall apply to them.
4. Notaries shall not authorise a write-off of a use-by-shift scheme and registrars shall not register it until they are credited with complying with the requirements set out in paragraphs 1 and 2 of this Article.
Article 5. Regulatory writing.
1. The regulatory public writing of the use-by-shift scheme shall at least express the following circumstances:
1. The description of the farm on which the system of use by shift is constituted and of the building or buildings that exist in it, with a review of the common services to which the holders of the benefits are entitled. If the build is only started, the deadline for the completion of the construction will be indicated.
2nd. The description of each of the enclosures that are integrated into each building, to which a correlative numbering will be given with reference to the farm. If the building is to be used for tourism at the same time as a system of taking advantage by turn, it will be determined which of the accommodation is liable to be taxed with rights to take advantage in turn and for which periods per year.
3º. The number of such accommodation, its duration, indicating the initial and final day and time, the quota corresponding to each shift in relation to the accommodation, if previously constituted, shall be expressed in each accommodation for use per shift. horizontal division, or in relation to the total of the building, if it is not, the furniture it has intended, as well as its value, and the days of the year not configured as taking turns for being reserved, in that accommodation, for repairs and maintenance. Each use will also be given a correlative number for each enclosure.
4th. Reference to the services to be provided and which are inherent in the rights of use in turn, expressing that they are directly assumed by the owner or by a service company.
5th. Where appropriate, the statutes to which the system of use is submitted per shift. No obligation or limitation contrary to the provisions of this Law may be for the rightholders of the rights.
6th. The registration, cadastral, urban and, if any, tourist situation of the building. The distribution plan of the different accommodation in the respective plant shall also be accompanied.
7th. The remuneration of the services and, where applicable, the community costs.
8th. Duration of the scheme.
2. In addition, the contract concluded with the service undertaking and the insurance contracts referred to in Article 7 shall be incorporated in the original or in evidence. An authenticated copy of these must be accompanied for your file in the Register.
Where the building is under construction, it must be incorporated in the document that the security or the security referred to in Article 4.2 has been constituted.
The person or natural persons who grant the deed will be responsible for the reality of the embedded contracts.
3. In the event that the scheme has been constituted on a building under construction, the completion of the work must be recorded in the Land Registry within three months, to be counted from its conclusion. In order to carry out such a constancy, the licences referred to in point (b) of Article 4.1 shall be provided and not provided at the time of the registration of the new work under construction.
The owner or promoter, once the completion of the work has been registered, must notify the fact to those who acquired rights to take advantage of the building in question while the latter was in construction.
Article 6. Registration of the scheme and its modification.
1. Submitted the regulatory writing for registration in the Land Registry, the registrar shall suspend the registration of those paragraphs or articles of the statutes that impose to the holders of the rights of exploitation by turn any obligation or limitation contrary to the provisions of this Law.
If by registering the regime in the Register by means of the regulatory writing, the different accommodations destined to take advantage by turn will not be found as independent registers, the registrar will open them, although horizontal division of the building is not done in the regulatory writing. In doing so, it shall express, in each of them, the shifts and other circumstances referred to in issue 3. or from paragraph 1 of the previous Article.
By registering the first acquisition of a right of use in turn, you may also register, if so agreed in writing or in the contract raised to the public, the subrogation in the proportional part of the mortgage credit that despite the entire property without the need for the consent of the mortgage creditor if, when the mortgage was constituted, a target system of distribution of the mortgage responsibility was agreed between all the rights for use in turn resulting from the establishment of the scheme.
2. Once the regulatory writing has been registered, and before returning the title to the filing, the registrar will file a copy of the contracts incorporated in it, stating in the registration of the system and in all the advertising that of, both of the (a) the right to take advantage of the property in turn, and must accompany copies of such contracts to the certificates issued in respect of the immovable property on which the scheme was established, where it would have been expressly requested in the certification request.
3. If, after the establishment of the scheme, a new contract with a service company is provided for its file in the Register, in the event that the owner does not wish to continue to take charge of them or the contract has been extinguished, or (a) a decision, or a statement of statements in which the owner is directly responsible for the services or when the information document referred to in Article 8.2 is provided, the registrar shall file a copy and record the fact that the Note to the margin of registration of the scheme with reference to the file where they were archived.
The registrar will suspend the file if in the act the owner or, in the new contract, the service company does not make express assumption of the conditions of the previous one, if the contract had been concluded before the constitution of the scheme or if the information document does not contain the particulars required by Article 8.2.
The registrar will also suspend the file for those contracts that do not have the signatures that are notarized.
Any modification made in the previous contracts and documents, provided that it is permitted by this Law, shall not be valid until it is entered in the Land Registry in accordance with the provisions of the paragraph previous.
4. The scheme may only be amended by the registrant, with the consent of the service undertaking and the community of holders, in accordance with the provisions of Article 15.4 of this Law, with such a change in writing. public and be registered in the Land Registry, in the terms set out in Article 4.3.
Article 7. Secure.
Prior to the constitution of the system of rights of use in turn, the owner must subscribe and maintain in force an insurance policy that covers, for all the duration of the promotion and until the transmission of the the right to take advantage in turn, the risk of the birth of the person in charge of the obligation to compensate third parties for the damage caused and damage caused by him or any of his dependents, until such time produces.
In addition, you must subscribe and maintain in force insurance that covers the civil liability in which the occupants of the accommodations may incur the use of the same, as well as fire insurance and other damages. general of the building or of the assembly of its facilities and equipment. Without prejudice to the liability of the owner or promoter with the insurance company, the insurance company and the service undertaking may agree that the latter shall take charge of the payment of the premiums for these insurances.
Section 2. Promotion and Transmission Conditions
Article 8. General information.
1. Without prejudice to the provisions of Article 1.4 of this Law, it is prohibited to transfer rights of use in turn with the name of multiproperty or any other that contains the word property.
2. The owner, the promoter or any natural or legal person who is professionally engaged in the transmission of rights of use in turn, who intends to initiate the transmission of these rights, must edit, according to the rules which, if necessary, approve the Autonomous Community in the field of consumption, an information document with the character of a binding offer, which will be delivered free of charge, after being archived in the Land Registry relevant, to any person requesting information. The following points shall be mentioned in this document:
(a) Identity and domicile of the owner or promoter and any natural or legal person who is professionally involved in the transmission or marketing of the rights to take advantage in turn.
(b) The actual or personal nature of the rights to be transmitted, with an indication of the date on which, as far as the footnote in the Register of Property is found to be at the foot of the regulatory writing, it shall be extinguished the scheme.
c) If the work is under construction, indication of the deadline for completion, also depending on what is the result of the regulatory writing, and indication of the estimated date of extinction of the scheme, calculated on the deadline of the completion of the work.
(d) A precise description of the building on which the scheme has been established and its situation, and whether the work is completed or under construction.
e) Common services to which the acquirer may enjoy and the conditions of this enjoyment.
(f) Common-use facilities to which the holder may have access and, if applicable, conditions for such access, with an express indication of their amount or the basis for their determination.
g) Indication, if any, of the service company that will take over the administration, with the expression of its name and its registration data in the Mercantile Register.
h) The average price of the right to take advantage per shift and the price of those who have the highest.
Also, the amount of the first annual fee to be met by the use of the common facilities and services, or their estimation, and the procedure for calculating future annuities.
i) Information on the number of eligible accommodation per shift and the number of shifts per accommodation.
j) Information about the rights of withdrawal and unilateral resolution the acquirer will have, expressing the time that he will have, according to this Law, to exercise it, that he will not be charged any expenses for the exercise of the (a) the person and address to whom he/she must communicate, if he/she is exercised. If the work is under construction, indication of the guarantee or the insurance constituted to guarantee the termination of the work.
k) Whether or not there is the possibility of participating in an exchange system and, in a positive case, the name, denomination or the social reason of the third party to take over the service, making mention of the document that, with annual character shall be issued by the third party accrediting the participation of the scheme in the exchange programme. The document, signed by the legal representative of the exchange company, shall express that the contract of the acquirer or holder of the right of use with the exchange company is an independent and separate contract of the contract which links to the acquirer with the promoter or owner of the use-by-shift scheme. The document shall also include the participation fee as a partner in the exchange programme and the corresponding exchange fees.
The document will also express the total number of partners affiliated to the exchange program, as well as the number of schemes involved in the exchange programme and a general review of the operation of the system. The document issued by the exchange company shall be incorporated and shall form an integral part of the information report provided for in this Article.
3. The owner, the promoter or any natural or legal person who is professionally engaged in the transfer of rights of use shall also, in accordance with the rules which, if necessary, approve the Autonomous Community competent in the matter of consumption, inform the acquirer of how he can request generic and free information about the rights which, in general, assist him in the agencies and the following official professionals, indicating the direction and telephone number of the nearest to the place where the building on which the building has been established is located speed:
National Consumer Institute.
Bodies of the Autonomous Communities responsible for tourism and consumption.
Municipal Consumer Offices.
All without prejudice to the information that the Professional Colleges of Architects, Real Estate Agents, Fincas Administrators, Lawyers, Notaries and Registrars can provide.
4. The owner, the promoter or any natural or legal person who is professionally engaged in the transfer of rights of use shall also have, in accordance with the rules which, if necessary, approve the Autonomous Community competent in the matter of consumption, at the disposal of the persons to whom it proposes the conclusion of the contract, a complete inventory of all the furniture, installations and equipment with which the accommodation is counted and in which the overall value of the same.
5. Any advertising, including the information document referred to in paragraph 2 of this Article, promotion or offer relating to rights of use in turn, must indicate the data for the registration of the scheme in the Register of the Ownership, expressing ownership and charges, warning that the property must be consulted for the purpose of knowing the legal status of the farm and the full content of the system of use per shift.
Article 9. Minimum contract content.
1. The contract concluded by any natural or legal person within the framework of his or her professional activity and relating to the rights to take advantage of accommodation shall be recorded in writing and shall, at least, be expressed as follows:
1. The date of the conclusion of the contract, the data of the regulatory writing of the system, with indication of the day of the grant, the authorizing notary and the number of its protocol, and the data of registration in the Register of the Property.
2. Reference to the actual or personal nature of the right transmitted, stating the date on which the scheme will be extinguished in accordance with the provisions of this Law.
3. The precise description of the building, its location and the accommodation on which the right falls, with reference to its registered data and to the turn that is the subject of the contract, with an indication of the days and hours in which it is starts and ends.
4. º Expression that the work is completed or is under construction. In the latter case, the following shall be indicated:
a) Phase in which the build is located.
b) Deadline for completion of the building.
c) Reference to the work license and indication and address of the City Council that issued it.
d) Phase in which common services are found to allow the use of the building.
e) Address indicated by the acquirer where the registration of the completion of the work shall be notified to it and the date from which the duration of the scheme shall be computed.
f) A memory of the qualities of the enclosure object of the contract.
(g) Detailed relationship of the furniture and equipment to which the accommodation is to be provided, as well as the value attributed to it for the purposes of the guarantee or guarantee referred to in Article 4.2.
(h) Reference to such endorsement or insurance, with indication of the entity in which it has been constituted or with whom it has been contracted and which it may be executed or claimed by the acquirer in the event that the work is not completed on the deadline set for the effect or if the set of furniture is not incorporated into the enclosure.
5. The price to be paid by the acquirer and the amount to be met annually, once acquired by the right, to the service undertaking or to the owner who took charge of the acquirer. in regulatory writing, with the expression that it will be updated according to the consumer price index published by the National Statistics Institute, unless the parties have established another form of update, which may not be left to the (a) the rate of the rate at which the rate is calculated in the Member States; Last five years. The amount of the taxes which, in accordance with the provisions of this Law, has been acquired, as well as an indication of the notarial and registration fees for the case of the contract being raised, will also be made. public writing and enrol in the Land Registry.
6. The literal insertion of the text of Articles 10, 11 and 12, stating the nature of the legal rules applicable to the contract.
7. The common services and facilities the acquirer has the right to enjoy and, where appropriate, the conditions for such enjoyment.
8. º Whether or not there is a possibility to participate in the exchange services of periods of use.
When this possibility exists, the eventual costs will be expressed and reference will be made to the accreditable document on the exchange provided for in Article 8.2.k) of this Law.
9. º Expression of the name or social reason, with the data of the registration in the Mercantile Register in the case of the company, and the address:
a) The owner or promoter.
(b) The transmission, with precise indication of its legal relationship with the owner or promoter at the time of the conclusion of the contract.
c) The acquirer.
d) The service company.
e) Of the third party who took charge of the exchange, if any. This third party, if a legal person, must have an open and registered branch in Spain.
10. The duration of the scheme, with reference to the regulatoryrecording of the registration of the scheme.
If the building is under construction, with reference to the deadline by which the deed of completion of the work is to be entered.
11. º Expression of the right that assists the acquirer to:
(a) Check the ownership and charges of the property, requesting the information of the competent registrar, whose address and fax number shall be expressly stated.
b) Require the public write grant.
c) Register your acquisition in the Property Registry.
12. Place and signature of the contract.
2. The inventory and, where applicable, the general conditions not included in the contract, as well as the statutory clauses entered, shall be listed as an inseparable annex to the parties.
3. The contract and information documents prevented by this Law shall be drawn up in the language or in one of the languages, chosen by the acquirer, of the Member State of the European Union in which he resides. In addition, they shall be drawn up in Spanish or in any of the other official Spanish languages at the place of celebration, at the choice of the acquirer.
Foreign acquirers who are not nationals of a Member State of the European Union or residents thereof may require that the contract and other documents be delivered to the language of a State. Member of the European Union that they choose.
The owners, promoters or any natural or legal person who is professionally engaged in the transmission of rights of use in turn shall keep, at the disposal of the consumer organizations provided for in the first provision of this Law and, where appropriate, of the tourist authorities, the translations of the documents to be delivered to any acquirer and of the terms and conditions under consideration general.
Without prejudice to the responsibilities to which there may be, in the event of any divergence between the different versions, the most favourable to the acquirer shall apply.
4. All information contained in the information report provided for in paragraph 2 of the previous Article shall be incorporated and shall form an integral part of the contract. Failure to comply with this obligation implies the duty of information for the purposes set out in the following Article.
Article 10. Withdrawal and termination of the contract.
1. The acquirer of rights of use in turn has a period of ten days, counted from the signing of the contract, to desist from it to its free arbitration. If the last day of the said term is indeft, it shall be excluded from the calculation, which shall end on the following working day. If the withdrawal is exercised, the acquirer shall not pay any compensation or expense.
2. If the contract does not contain any of the particulars or documents referred to in Article 9, or if the acquirer has not been sufficiently informed as to have contravened the prohibition in Article 8.1, or of the obligations of the other paragraphs of the same article, or if the information document submitted does not correspond to the filing in the Register, the acquirer may resolve it within three months, from the date of the contract, without being able to require payment of any penalty or expense.
In the event that there is a lack of veracity in the information provided to the acquirer, the acquirer may, without prejudice to the criminal liability in which he may have incurred the transfer and without prejudice to the The following paragraph shall apply to the action for the nullity of the contract in accordance with the provisions of Articles 1,300 et seq. of the Civil Code.
Information completed before the expiry of the said period, the acquirer may withdraw within 10 days of the date of the remedy, as set out in paragraph 1 of this Article.
After the three months without having completed the information and without the acquirer having made use of its right of resolution, the latter may also desist within 10 days of the expiration of the period, according to (a) the conditions laid down in paragraph 1 of this.
3. The withdrawal or termination of the contract must be notified to the owner or promoter at the address which is necessarily included in the contract.
The notification may be made by any means guaranteeing the constancy of the communication and its receipt, as well as the date of its dispatch. In the case of withdrawal, it shall be sufficient for the consignment to be carried out before the expiry of the period.
If the contract is held before a notary in the case of Article 14.2, the withdrawal must be entered in the notarial act. This shall be a working title to reregister the right of use in favour of the transfer.
Article 11. Prohibition of advances.
1. The payment of any advance by the acquirer to the transferor shall be prohibited before the expiry of the period for the exercise of the right of withdrawal or as long as the power of decision referred to in the previous Article is available. However, the parties may lay down the covenants and conditions which they have as appropriate to ensure payment of the deferred price, provided that they are not contrary to that prohibition and do not imply that the transfer receives, directly or indirectly, any type of consideration in the case of the exercise of the above right of withdrawal.
2. If the acquirer has anticipated any amount of the transfer, he shall be entitled to demand at any time the return of such a duplicate quantity, being able to choose to terminate the contract within three months of its conclusion or to require their total compliance.
Article 12. Loan scheme to the acquisition.
Loans granted to the acquirer by the transferor or by a third party that would have acted in accordance with it shall be settled when the first person desists or resolves in any of the cases provided for in Article 10.
No clauses that imply a penalty or penalty imposed on the acquirer for withdrawal or resolution may be included in the loans.
If the acquirer has subrogated on a loan granted to the transferor, exercised the withdrawal or resolution, the loan shall remain in charge of the purchaser.
Article 13. Resolution for non-payment of quotas.
1. Unless otherwise agreed, the owner shall have a decision-making power in the event that the acquirer of the right to take advantage of the right, once required, does not pay the fees due for the services provided. for at least one year.
The owner may exercise this power of resolution, at the request of the service company, upon request for payment to the debtor at the registered office or, failing that, in which he is placed on the contract, Under the terms of the judgment, if the amounts claimed are not fully met within 30 calendar days, the amounts claimed shall not be fully met.
2. In order to carry out the decision, the owner shall, in favour of the owner of the right, enter the proportional share of the price corresponding to the time until it is extinguished.
However, by criminal clause, the loss in all or part of the amounts which, in accordance with the preceding paragraph, corresponds to the holder of the right shall be agreed. All this without prejudice to the moderating faculty of the Courts established in Article 1154 of the Civil Code.
3. The owner who exercised the decision-making power regulated in this article shall be obliged to pay the debts that the holder of the right of use in turn has to do with the company of services, unless otherwise agreed with is.
Article 14. Advertisement Register.
1. The acquisition and transfer of rights of use in turn may be registered in the Registry of the Property, for which the contract must be raised to public deed and the registrar open sheet to the turn whose right of use is object of transmission, always remaining the provisions of the Mortgage Law.
By registering the first transmission of a right of use per shift, the registrar shall state, by means of a marginal note, that the same shall be taxed in real terms in order to meet the last two quotas, the time of the complaint by court or notarial, for the entire life of the regime. In order to make the guarantee effective, the service provider will be able to use any of the executive procedures that the Horizontal Property Law allows to use the community of owners to claim the fees for common expenses and the extra-judicial foreclosure procedure.
2. If the contract is to be held before a notary, the notary shall notice the right of withdrawal that Article 10 establishes in favor of the acquirer, which can be done only by a notarial act, and the other rights granted to him by this Law.
3. The Notary shall not authorize the writing, nor shall the registrar enter the right if the contract does not contain the particulars required by Article 9.
Article 15. Powers of the holder of rights to take advantage in turn.
1. The holder of a right to take advantage in turn can freely dispose of his or her right without further limitations than those resulting from the laws and without the transfer of the right to the obligations arising from the scheme.
2. The holder of the right to take advantage of the right to transfer or market actual rights constituted on a professional basis shall be subject to the provisions of Articles 2 and 8 to 12 of this Law. The acquirers of these rights shall be subrogated to those who correspond to the holder of the right to take advantage in turn according to this Law and, in particular, those corresponding to the owner of the property.
3. In the case of the preceding paragraph, if the right to take advantage of the right of use is not registered in favour of the transfer of the right or the transferor of the personal right, the acquirer or transferee may apply for the registration of the right of taking advantage of the procedure under Article 312 of the Mortgage Regulation in the name of the transferor or transferor.
4. The regulatory writing of the system of use by shift shall provide for the establishment of a community of holders. The community of rightholders shall be governed by the statutes provided for in the regulation or those who freely adopt the rightholders and their agreements shall be governed by the following rules:
1. The agreements that tend to modify the constituted regime must be taken by the majority of two-thirds of the holders.
2. The other agreements shall require only the simple majority of holders of the right to take advantage in turn.
3. Each person will have as many votes as rights to which he is a holder.
4. If no majority is found, or the agreement of the majority is seriously prejudicial to the parties concerned, the Judge shall provide an appropriate part of the matter.
5. The rules of the Horizontal Property Law governing the functioning of the owners ' communities shall be applied and subsist to those present.
Failure of services
Article 16. Non-compliance with services.
The owner or promoter is responsible, in front of holders of rights to take advantage in turn, of the effective delivery of the services. In the event of non-compliance by the service company, the owner or promoter must resolve the contract and require damages. The resolution action corresponds to the owner or promoter. In any event, any holder of a right to take advantage of the right of use shall be entitled to claim from the owner the effective provision of the services and the corresponding compensation in the event that such benefit is not effected.
Once concluded with the primitive service company, the owner or promoter must directly assume the service or contract it with another service company. Any alteration of the contract shall in no case prejudice the holders of the rights to take advantage of the contract.
Article 17. Scope of application.
The tax rules referred to in this Title shall apply to the rights governed by this Law, without prejudice to the provisions of the Treaties and international conventions that have passed into the law. internal.
As not provided for in this Title, the general tax provisions shall apply.
Article 18. Heritage Tax.
The rights referred to in this Law, whatever their nature, will be valued, as provided for in Article 10.3.b) of Law 19/1991, of 6 June, of the Tax on Heritage, for its price of acquisition.
Article 19. Value Added Tax.
1. The reduced rate of 7 per 100 shall be applied to the following operations:
1. The performance of services that consist of the assignment of the rights to take advantage of real estate as referred to in Article 1 of this Law.
2. º Any other form of use of the real estate for a specified or determinable period of the year with the provision of any of the complementary services of the hotel industry.
3. The services referred to in Article 91.ano.2. of Law 37/1992 of 28 December 1992 on Value Added Tax, provided by natural or legal persons referred to in Article 4.3 of the This Act.
2. The operations referred to in the previous paragraph, when carried out in the Autonomous Community of the Canary Islands, shall apply to them the reduced rate which, in accordance with their legislation, is provided for in the Indirect General Tax.
Article 20. Tax on Proprietary Transmissions and Documented Legal Acts.
To transmissions between individuals not subject to the Value Added Tax or the Indirect General Tax Canarian of the rights referred to in this Law, whatever their nature, the type shall apply to them. 4-for-100 tax on the Tax on Proprietary Transmissions and Documented Legal Acts.
Additional disposition first. Consumer and user organizations.
Consumer and legally constituted user organizations shall be entitled to receive, at the expense of the owner or promoter, a copy of all the documentation that, in compliance with the rules of this Law, has produced the same, in order to verify if these have been observed.
Additional provision second. Imperativity of the Law.
All contracts relating to rights relating to the use of one or more buildings located in Spain during a specified or determinable period of the year are subject to the provisions of this Law, is the place and date of its celebration.
Additional provision third. Foral tax regimes.
The tax rules referred to in this Law shall be without prejudice to the tax and economic agreements, in force in the Historical Territories of the Basque Country and in the Community of Navarra, respectively.
First transient disposition. Promotion and transmission.
1. As from the entry into force of this Law, the promotion of any right relating to the use of one or more buildings, constructed or under construction, for a specified or determinable period of the year, shall be subject to the requirements of the she.
2. The transfer of such rights shall be governed by the regime which until the entry into force of the Law regulates the building. After the adjustment period has elapsed, if the adjustment period has not been completed, this Law shall be governed by this Law. If such an adaptation has been carried out, from the date of the adaptation, the transmission shall be carried out in accordance with the arrangements published in the Register.
3. Articles 2 and 8 to 12 of this Law shall in any event apply.
Second transient disposition. Preexisting regimes.
1. A pre-existing system of rights relating to the use of one or more buildings, constructed or under construction, for a specified or determinable period of the year, the constitution of which is of any form accepted in law adapt, within two years, to the provisions of this Law.
If the pre-existing regime is registered, the non-binding report referred to in Article 355 of the Mortgage Regulation may be requested from the registrar on the way the adaptation is to be performed.
After two years, any holder of a right, real or personal, concerning the use of one or more buildings during a certain period or determinable of the year, may be able to prosecute the adaptation prevented in This provision.
2. For this adaptation it will be necessary, in any case, to grant the regulatory writing with the requirements of Article 5 that are compatible with the nature of the regime and to register it in the Registry of the Property, to the solos effects of publicity and with full respect for the rights acquired. Of the contracts referred to in that Article, only those which exist at the time of the adaptation shall be incorporated. The deed must be granted by the sole owner of the building.
If the pre-existing regime was established in such a way that the rightholders are owners of the immovable property by means of undivided quotas that have been used for a given shift, the adaptation deed must be granted by the president of the community of owners, after agreement of the community itself adopted by a simple majority of the members of the Board that is called to the effect.
In the adaptation deed, the sole owner of the property must describe the pre-existing regime and state that the rights to be transmitted in the future will have the nature that results from that, identical to that of those already in place. If you wish to place on the market the shifts not yet transmitted as rights of use per shift, you must also constitute the scheme in respect of the periods available with the requirements laid down in this Law, but without the need for the it is in the whole of the building, but only with respect to the non-renaded shifts. If you want to transform the whole system into a system of rights of use per shift, as regulated by the Law, you will be able to do so by fulfilling all the requirements laid down in it, but maintaining the duration of the Pre-existing regime, even if it was indefinite.
3. Without prejudice to the foregoing paragraph, all pre-existing schemes shall have a maximum duration of 50 years from the date of entry into force of this Law, unless they are of a lower duration or, in writing, in writing. adaptation, express declaration of continuity for an indefinite period or time.
Transitional provision third. Failure to comply with the obligation to adapt.
The owner's failure to comply with the obligation to adapt the scheme will entitle the acquirers, even if they do not engage with him directly, to terminate the contracts which would have been concluded after the entry into force. Law, which may require you to return the amounts paid and compensation for damages.
Single end disposition. Constitutional competence.
This rule is dictated by the provisions of Article 149.1.6. a, 8. a and 14. a of the Constitution, without prejudice to the conservation, modification and development by the Autonomous Communities of civil, foral or special rights, wherever they exist.
Therefore, I command all Spaniards, individuals and authorities, to keep and keep this Law.
Madrid, December 15, 1998.
JOHN CARLOS R.
The President of the Government,
JOSÉ MARÍA AZNAR LÓPEZ