Dacion En Pago Updated

In an earlier blog you can see my take upon the Spanish procedure by which it can be possible to hand back a house or flat to the Bank mortgage lender. It is very disappointing when the dream of a home or second home in the sun turns sour, but disappointment is one thing and financial ruin is quite another.

The procedure of Dacion en pago has been a godsend to many British owners of property in Spain. Plunging values of property, coupled with years of recession and perhaps the loss of jobs, have meant that the mortgage commitments on many investments in the sun have become unaffordable millstones. The ability by agreement with the Bank simply to hand the keys back and walk away, is a financial release which is often not available in other countries.

However the drawback until last year was that the Banks would never agree to accept a Dacion en pago if the mortgage debt exceeded the property value – negative equity. Although not enshrined in any Law, it was widely believed by borrowers and lenders alike in Spain, that the procedure was somehow not allowed, in the case of negative equity.

There is now good and bad news since 2012. In a voluntary code of practice published by the Spanish Government and accepted by 95pc of the institutional lenders (who having accepted it are now bound by it) Dacion is now compulsory if the code terms are met. Also, negative equity is no longer a bar to Dacion. That is the good news.

The bad news is that the code terms in effect exclude persons of Non-Spanish domicile since one term included is that the property in question must be the only borrowers only home.

So the new regime means that a UK resident will be unable to demand Dacion as of right. However, as before, it can still be requested and there is no longer any rule that negative equity will operate as an absolute non-starter. As before, I am indebted to Raymundo Larrain Nesbitt for the source material for this blog.

Children Travelling Abroad

I have written on this subject before, but I think it is worth revisiting at this time of year.

Christmas is over, the weather in UK is filthy and thoughts in many households are turning to holidays and travel abroad.

In many households money is tight and it is not possible for both parents to travel with their children – but grandparents living abroad always want to see their grandchildren. So the plan has to be that Mother or Father alone will travel with the children. Or sometimes one Grandparent will travel to UK alone, and collect the grandchild and take them back home to meet the wider family in Poland or Brazil or wherever it might be.

The problem for Airlines and Border agencies, is that they have (or think they have) a duty to make sure that a child is not being “kidnapped” – that is, being taken out of England by one parent or a more distant relative, against the wishes of the parents or of the other parent.

Time and again the travelling adult is stopped and detained, perhaps for days at a time, wasting money and time, whilst enquiries are made. This does not only happen at the first outward airport. It can happen at the foreign airport. It can happen at any further linking airports. It can even happen in the UK when the child is being brought back home to England!

It is a perennial source of trouble, if you are wishing to travel overseas with a child but cannot travel with BOTH parents, you would be well advised to take with you several properly Notarised forms of consent – signed by the non-travelling parent/s and notarised.
Because this has been the requirement for several years in most parts of the world including the USA, this is a problem which seems to cause trouble for British people more than for others – we seem to be less aware of the situation for some reason.

Travel agents are, to be fair, increasingly aware of the situation but still people are getting caught out.

Typically the problem arises when a child is taken on holiday by grandparents; but it also happens when one parent only travels with a child, for whatever reason. The assumption is, “We have our passports – the child has a passport – what is the problem?”

Actually, the problem is – that you might travel thousands of miles, and get turned back or detained at the border!

Foreign Governments do not wish to be seen to have assisted in child abduction of any kind whether by parents or by anyone. So when a child travels without both parents, there is the suspicion in the Government mind, of the possibility that the journey is unknown to the non-travelling parent – who would not have given consent.

Too many people pass though the airports for any country to be certain that there is no court order in force prohibiting travel – so the safest answer for immigration authorities often is – “No consent – No entry.”

The lack of the notarised form can also give rise to difficulty in the event that the child becomes ill or has an accident. A Hospital for example might not operate on a child unless both parents are present to consent, or have previously signed a Notarial form to say that the grandparents who are travelling with the child can make those decisions.
Many countries publish the text of the required letter of consent on the websites of their border control agencies and several others do not. If there is no specified text then I can draft a suitable wording for you of course.

Also do note that, for many jurisdictions, the consent document once notarised should be further “legalised” or “Authenticated” with either the Foreign Office Apostille or the Consular stamp of the Country concerned – or sometimes both of those. See my previous blog called “Glossary” for a more detailed explanation.

Be aware also that it is not only, or even mainly, national governments and immigration agencies which are requiring such consents. Increasingly individual airlines will apply their own rules. For this reason I would recommend that when you make the forms of consent, you obtain several originals at the same time.

It is not unknown, and it is usual in Brazil in particular, for an airline to require a letter on an internal flight in spite of the fact that such a form was previously provided when entry to Brazil was first made. Again, a further form may be demanded when you leave.
On a more trivial level I have seen cruise ships require that the responsible adult has the permission of the parent to agree to the child using the swimming pool, or trampoline, or making visits in the ports to which the ship travels.

I have recently seen in UK newspapers travel advice to the effect that “A notarised consent will be needed, so go and see your solicitor now” Well if you get your spectacles prescribed by your greengrocer, fair enough – otherwise please remember – Some Notaries are also Solicitors, but very few Solicitors are also Notaries.

Outside of the British Isles, the role of a solicitor is extremely limited, and it is the certificate of a NOTARY PUBLIC which will be required from you.

Do contact me [click here] whenever I can assist you

If You Are Not a Notary, Don’t Run The Risk Of Certifying Foreign Documents

A word of warning to Solicitors from a Notary (tell your colleagues – tell your junior employed solicitors!)

In England most people probably live their lives without ever needing the services of a Notary Public. (Although we Notaries can carry out Conveyancing or Probate Services for reward, most of us are Solicitors and act in our Solicitorial capacity for that kind of work.)

So when Joe and Jane Bloggs buy a second home in Spain, or enter into a civil or criminal courts matter, quite often they fail to understand the requirements of their foreign Lawyers who ask for a “Notarised” Power of attorney, or “Notarisation” of Affidavits in a Court case abroad.

They can often say to themselves, “what a silly foreign chap, he doesn’t know that in England our lawyers are called Solicitors, we don’t have Notaries do we.”

Fair enough I suppose, but things get a bit serious when they go to their English Solicitor – who (if s/he is recently qualified and more anxious to help than knowledgeable) agrees to “Notarise” the forms for them. Yes this really happens, more often than knowledgeable senior solicitors would suppose.

When a Solicitor signs a Deed for use in a Jurisdiction which actually requires a Notary to do so, in nearly every foreign jurisdiction this will render the Document Null and Void. If the Solicitor takes a fee, perhaps even if not, liability for consequences cannot be avoided. Remember – the remit of a Solicitor is England and Wales, not even extending 100 miles up the road into Scotland.

Imagine that a solicitor certifies an Affidavit for use in a Civil dispute in Spain, the question at issue being liability of a UK airline for lease contract payments of a Jumbo Jet. The crucial witness statement is the one defectively notarised. Who will pay all of the costs of an adjournment at best, or in the worst case be called upon to indemnify the airline which has just lost its case costing hundreds of thousands of pounds?

I think there would be an interesting conversation, between a solicitor in this position, and his PI Insurance company – And remember, if you are an equity partner and the solicitor is your employee, this is YOUR insurance company. It seems to me that a Solicitor who meddles with a foreign document outside his jurisdiction is no more acting as a Solicitor, than if he agrees to rewire a clients house and burns it down. Why should he be able to claim on his PI insurance in either case?

There are also criminal penalties around the world for impersonating a Notary – a crime which may or may not require any actual intent. One imagines that you have better things to do than defend yourself from foreign prosecutions.

Moral. A Solicitor is not a Notary, unless s/he is! I am a Notary. Please do get in touch with me whenever your clients are involved in foreign legal matters requiring documentation to be processed in England.