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SPANISH LAW

El Defensor del Pueblo: How Spain’s ombudsman can help foreigners

Spain's 'Defensor del Pueblo' scrutinises government departments and public administrations, acting as a sort of mediator between the people and the State. Here's how the Spanish ombudsman can help foreigners who live here.

El Defensor del Pueblo: How Spain's ombudsman can help foreigners
Spain's "Defender del Pueblo" national ombudsman Angel Gabilondo. (Photo by JAVIER SORIANO / AFP)

El Defensor del Pueblo (what we’d call a public ‘ombudsman’ in English) is a High Commissioner of the Spanish Cortes Generales.

They are basically in charge of defending the rights and public freedoms of all people in Spain by supervising the Spanish public administrations. A good way to think of it is as like a sort of mediator between the Spanish state and the people.

As such, the scope of their work is very wide, as they monitor all parts of the state and government, including the Treasury, Migration, Health, Education, Culture, Sport, Transport and Housing, among many others.

READ ALSO: What’s the difference between a gestor, a lawyer and a notary in Spain?

El Defensor del Pueblo is elected by the Congress of Deputies and the Senate, and their mandate lasts for five years. Crucially, they do not receive orders or instructions from any state authority, meaning they perform their duties independently and impartially from government influence.

The position was first created in 1981, and the Spanish Congress elected the first Defensor del Pueblo in December 1982. The post is currently held by Ángel Gabilondo Pujol, who took office in November 2021.

Anyone in Spain can turn to El Defensor del Pueblo for help and support, a service which is free of charge. The office supports citizens and looks into alleged irregular or improper activity by any branch of Spanish public administration or its employees on their behalf.

This is particularly useful for foreigners in Spain, who may, whether it be for reasons such as a language barrier or unfamiliarity with Spanish administrative processes, require support when it comes to dealing with the Spanish state.

How Spain’s Defensor del Pueblo can help foreigners

The sorts of services provided by the Defensor del Pueblo, particularly the different arms of government it scrutinises, can potentially impact foreigners in several ways.

According to the Defensor del Pueblo official website, which you can find here, “foreigners, regardless of their documentation status in Spain or their age, turn to the ombudsman when they believe that the actions of Spanish administration have violated their rights.”

This means foreigners who feel they’ve been treated poorly or ignored by the Spanish say can request the help of the ombudsman’s office.

The following image by the Spanish ombudsman explains how to file a complaint with them, explained in more detail in the English version of their website

Among the sorts of responsibilities the public ombudsman works on in Spain are supervising the actions of Spanish consulates abroad, dealing with complaints by foreigners about processing delays for those applying for Spanish citizenship, and it also carries out actions such as turn up unannounced to do checks on detention centres for foreigners or call for greater protections for migrant workers.

Recent cases where el Defensor del Pueblo has defended foreigners include investigating four Valencia police station which tried to fine foreigners for trying to file a complaint, forcing Navarran authorities to offer help to unaccompanied migrant minors, and denouncing the lack of residency application appointments in Castellón (Valencia).

In a summary of the varied roles and responsibilities of the Defensor del Pueblo fulfils, the website also lists managing digital services for disabled people; helping with appointments and services accessed through Spanish public administration; supporting consumer rights and assisting in making compensation claims, especially against energy companies; supporting women in prison; supporting unaccompanied minors, especially those arriving in the Canary Islands; as well as working on issues such as minimum wage and the prevention of forest fires.

READ ALSO: What’s the difference between a gestor, a lawyer and a notary in Spain?

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AMERICANS IN SPAIN

Navigating Spain’s real estate market: A guide for American homebuyers

There are some key matters US nationals looking to buy a Spanish home should consider, from legal complexities, to tax, property inspections and the role of buyer's agents. This quick guide by an international lawyer in Spain has you covered.

Navigating Spain's real estate market: A guide for American homebuyers

Buying a residential property in Spain can be an exciting yet complex endeavour, especially for American buyers unfamiliar with the intricacies of the Spanish real estate system.

With varying regulations at the state, regional, and local levels, it is crucial to be well-informed and well-prepared.

In this article, Maryem Essadik, immigration lawyer and head of English-speaking international law firm Marfour, offers US nationals a breakdown of the key considerations when buying a Spanish property.

Legal Complexities

Spain’s legal framework for real estate transactions is multifaceted, involving regulations that differ significantly between the national, regional, and local levels. Therefore, engaging specialized real estate lawyers is highly advisable.

1. State, Regional, and Local Regulations: The Spanish legal system is characterized by its decentralized nature. Each autonomous community in Spain can have distinct laws affecting real estates and property transactions. For example, while some regions may establish restrictions for renting out properties (ie. Limitations or prohibitions on carrying out short-rental activities, limitations on long-term rental prices etc.), others might have significantly varying taxes and fees associated with property purchases, and others can also count with a singular regional Civil Code that regulates in a particular manner important aspects such as the initial down payment contract (“Arras” in Spanish) when buying a property. Municipal regulations can also considerably impact property use and renovations.

READ ALSO: Which cities in Spain have new restrictions on tourist rentals?

2. Legal Representation: A lawyer with expertise in Spanish real estate law can navigate these complexities, ensuring compliance with all applicable regulations. They can conduct due diligence, verify property titles, and check for any encumbrances or legal issues that could affect the purchase. Legal representation is not just a formality but a necessity in Spain to avoid potential pitfalls.

READ ALSO: What’s the difference between a gestor, a lawyer and a notary in Spain?

3. Immigration legal advice: In connection with the property you want to buy in Spain you should receive the proper immigration law advice. Nationality and Immigration regulations in Spain are a complex but at the same time exciting field to navigate to find the best solution that will be matching your concrete case and circumstances (i.e: Digital Nomad Visas, Non Lucrative visas etc.)

LISTED: The visa options Americans can apply for to live in Spain

Fiscal Considerations

Taxation is another critical area that requires careful attention. Spain’s tax system includes various taxes that can impact the overall cost and benefits of owning a property.

1. Tax Residency: Determining your tax residency status is essential as it influences the taxes you are liable to pay. If you spend more than 183 days in Spain in a calendar year, you are considered a tax resident. You can also qualify as tax resident in Spain if having in this country the centre of your economic interests. Tax residents are subject to Spanish income tax on their worldwide income, while non-residents are taxed only on income generated in Spain.

READ ALSO: Do I have to pay tax twice if I’m an American living in Spain?

2. Income Tax and Wealth Tax: Spain imposes income tax (IRPF) and wealth tax (Impuesto sobre el Patrimonio) differently across its autonomous communities. The rates and allowances can vary, so understanding the specific regulations in the region where you plan to buy is crucial. For instance, some regions might have higher exemptions for wealth tax, impacting the overall cost of owning high-value properties.

3. Rental Income: If you plan to rent out your property, you need to be aware of the taxation rules on rental income. US tax residents are currently taxed for their rental incomes in Spain at a 24 percent flat rate on rental income (not being allowed to deduct any expense), whereas Spanish tax residents include rental income in their general taxable income (with different expenses being tax deductible), which could be taxed at progressive rates. Counting with the appropriate assistance of tax lawyers specialized in American clients and with a full knowledge of the US-Spain Tax Treaty can considerably help you to improve your tax bill.

READ ALSO: What the new Spain-US social security deal means for Americans

4. Special Tax Expats Regime: Implemented at the time that David Beckham joined Real Madrid (and known because of that as “Beckham Regime”), that regime may allow you enjoying the pros of being a tax resident in Spain, by living in this country exceeding 183 days per year, but taking advantage of a 24% flat rate and only making taxable in Spain labour incomes together with other incomes generated in Spain but not being taxable in Spain those sourced abroad. This tax regime has a maximum total 6 years duration and those who are eligible for it they also avoid filing Wealth Tax in Spain for their worldwide wealth.

To properly apply for it, it is always recommendable carrying out a previous tax planning and analysis with specialized Tax Lawyers before buying your property and moving to Spain.

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Property Inspections

A thorough technical inspection by a qualified architect is advisable to ensure the property meets all regulatory standards and is free from structural defects.

1. Construction Defects: Architects can identify potential issues such as structural integrity, water damage, and compliance with building codes. This is especially important for older properties or those that have undergone renovations.

2. Urban Planning Compliance: The inspection should also verify that the property complies with local urban planning regulations. Non-compliance can result in significant fines or even demolition orders.

READ ALSO: Do I need planning permission in Spain and how do I apply for it?

Buyer’s Agents

Unlike real estate agents who typically represent the seller and defend his interests, buyer’s agents work in the interest of the buyer, offering numerous advantages.

1. Local Market Knowledge: Buyer’s agents are well-versed in the local market conditions and can provide valuable insights into different neighbourhoods, school districts, community amenities etc. This knowledge helps in identifying properties that best match your preferences and needs.

2. Fair Pricing: Buyer’s agents can help negotiate better prices. They are familiar with the local market rates and can prevent the common practice of overpricing properties for foreign buyers.

3. Due Diligence: By conducting thorough market analyses and property evaluations, buyer’s agents can ensure that you make an informed decision. They also handle the negotiation process, striving to secure the best possible deal on your behalf.

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Financial Advice

Securing favourable financial terms can result in substantial savings, making it essential to seek expert financial advice.

1. Currency Exchange: For American buyers, currency exchange rates can significantly impact the cost of purchasing a property. Working with a reputable currency exchange provider can help you get the best rates, reducing overall expenses.

2. Mortgage Conditions: Comparing mortgage conditions from different lenders is crucial. Spanish banks offer various mortgage products, and an independent financial advisor can help you find the most favourable terms, considering interest rates, repayment periods, and other conditions.

READ ALSO: What non-residents should now about getting a mortgage in Spain

Conclusion

Buying a residential property in Spain involves navigating a complex legal and fiscal landscape.

By engaging specialized lawyers, conducting thorough property inspections, utilizing the services of buyer’s agents, and counting with expert financial advice, American buyers can mitigate risks and make informed decisions.

With careful planning and the right support, purchasing a home in Spain can be a rewarding investment and a gateway to enjoying the country’s rich culture and beautiful landscapes.

This article was written by Maryem Essadik, immigration lawyer and head of English-speaking international law firm in Madrid Marfour (Contact: +34 698 917 840, [email protected]).

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