Legal FAQs

Road accidents

Who is liable for a road accident?

The drive and the owner of the vehicle are liable, even when they are not the same person. The insurer of the vehicle is also liable to the same extent as the driver and owner, since it is considered a directly liable intermediary. Your claim can therefore be made against all three or directly against the insurer as per normal practice.

What does civil liability for road accidents encompass?

Generally civil liability covers any damage to person or property taking place as a result of the accident; in other words, due solely to the accident, the originator is made liable for the damages caused, otherwise known as strict liability.

This will not be the case when the liable person can prove that negligence by the victim, a third party or a cause of force majeure contributed to the accident.

What happens if the other party in the accident does not have insurance or it cannot be identified?

Third-party vehicle insurance is mandatory, so the Law establishes the Consorcio de Compensación de Seguros (the Insurance Compensation Consortium) as liable in cases of accidents in which the vehicle causing it does not have the required mandatory insurance, or it is unknown or the vehicle has been stolen.

Company administrators

As the administrator of a trading company, if the company has debts and I do nothing, may I be personally liable for it?

Yes. If the company is legally eligible for dissolution, the administrator has two months from when the company is unable to fulfil its obligations to perform one of these actions: increase or reduce the capital due to losses instigate dissolution or apply for bankruptcy proceedings. Otherwise liability may be perceived in the company administrator’s actions.

What are the causes for a company’s dissolution?

Ceasing the activity that constitutes the company’s corporate purpose, or inactivity for one year; conclusion of the corporate purpose; the impossibility of fulfilling the corporate purpose; cessation of corporate bodies; losses that reduce corporate assets to a quantity lower than half the share capital; reduction of the share capital below the legal minimum; the nominal value of the non-voting shares exceeds half of the paid-up share capital and the proportion is not re-established in the company’s articles of association.

Do all members of the administrative body have the same level of liability?

All members of the administrative body are jointly liable, except those that prove that they have not been involved in adopting and executing the agreement, were unaware of its existence or, knowing about it, did everything possible to prevent the damage or expressly opposed it.

Can a proxy of the company be considered liable?

If a proxy has very broad powers and the company is undergoing bankruptcy proceedings he or she may be considered a de facto administrator of the company and may therefore be considered personally liable to the same extent as a company administrator.

Who is eligible to hold the administrators liable for debts?

The company itself through its new administrators, liquidators or insolvency practitioners, any partner who voted against, as long as they represent a minimum of 5% of the share capital and, in the case of insolvency, any creditor of the company.

Data protection

What are the obligations of a holder of a personal data file?

The obligations of the file holder essentially consist of: declaring the files to the Data Protection Agency and reporting the existence, creation and modification of the file to the General Data Protection Registry; adopting the security measures established in the Law according to the type of data and compiling, maintaining and updating a security document that lists the adopted measures; informing and guaranteeing the exercise of the rights that the Law bestows on the owner of the data; and providing the means through which those affected can exercise their rights to access, amend, delete or oppose the data.

As a citizen, what rights do I have in relation to my personal data?

  • Right to acces: entitles citizens to know and freely obtain information on their personal data that is being handled.
  • Right to amend: enables citizens to correct or modify any data that is inaccurate or incomplete and ensure the truthfulness of the information.
  • Right to delete: enables citizens to delete data that is inadequate or excessive.
  • Right to oppose: enables affected citizens to refuse handling of their personal data or require that it no longer be handled.

What kind of penalties can be applied in the event of a failure to comply?

The following penalties are envisaged for a failure to meet the obligations imposed by the LOPD (the Organic Data Protection Law):

  • Minor breaches, with fines up to € 60,000: failure to register the data file in the General Data Protection Registry or collecting data without duly informing its owner, among others.
  • Serious breaches, with fines up to € 300,000: among others, using the data for purposes other than those for which it was requested and failing to adopt the required security measures for the type of data being handled.
  • Very serious, with penalties of up to € 600,000: for instance, failing to systematically permit exercise of the right to access, amend, delete or oppose; collecting data in a deceitful or fraudulent manner; and communicating or passing on personal data in breach of the provisions of the Law, among other grounds for sanction.

Debt

What options do I have for recovering debt?

It will basically depend on the type of debt in question and the way in which it is documented: First there are enforcement proceedings for recovering debt under certain documents that are enforceable such as court or arbitration rulings, policies, deeds, etc.

There are also declaratory proceedings, including ordinary proceedings, for debts exceeding € 3,000, and verbal proceedings for debts under € 3,000. In both cases the proceedings are initiated through legal action according to the specifics of each case.

Finally there are the so-called summary proceedings, including the juicio monitorio, which enables debts recorded in invoices, delivery notes, etc. to be collected, or the juicio cambiario, used to collect debts documented in written orders such as cheques, promissory notes or bills of exchange.

Company incorporation

What is the procedure for incorporating a company?

To set up a Sociedad Anónima (SA, Public Limited Company) or a Sociedad Limitada (SL, Limited Company), a memorandum of association is required, including the articles of association. It is granted before a notary public and, subsequently, it must be entered in the Business Register.

At any rate, the company is understood to be legally founded from the moment the memorandum of association is validly granted.

What is the minimum share capital?

In the case of a sociedad limitada (limited company) it is € 3,000, which must be fully subscribed, with at least a quarter of it paid up when the company is incorporated.

In the case of a sociedad anónima (public limited company) it is € 60,000, which must be fully subscribed, with at least a quarter of it paid up when the company is incorporated.

What tax is payable in order to set up a company?

The Tax on Asset Transfers and Documented Legal Acts at rate of 1%, wich must be paid prior to the memorandum of association being entered in the register.

Urban property letting

What deposit can a landlord request?

In the case of urban lettings to be used as a home, one month’s rent may be requested, and up to two for lettings for uses other than as a home, regardless of whether it is leased furnished or unfurnished. At any rate, the landlord has the right to request additional guarantees such as an additional deposit or bank deposit.

Who is required to bank the deposit?

The obligation falls to the landlord, who has a period of two months from the formalisation of the contract to bank the deposit.

Where can the deposit be banked?

In Catalonia the deposit can be banked with:

  • Institut Català del Sòl’s Deposit Division.
  • Catalan banking entities.
  • The Catalan Chambers of Urban Property.

Once the deposit has been paid in, the aforementioned entities will inform INCASOL to register it. The contracting parties and those providing proof of a legitimate interest will be the only people who may access the information in the aforementioned register.

Who is responsible for paying for building work and repairs to the home?

The landlord must carry out all repairs that are necessary to preserve the home in optimum conditions of habitability (structural elements, walls, roof, beams, piping, supply systems, etc.), whenever the deterioration to the home is not attributable to the tenant.

The tenant will be responsible for minor repairs required due to the ordinary use of the home (locks, paint, glazing, etc.)

What can tenants do if they ask the landlord to carry out necessary maintenance work but the landlord fails to do so?

In this case, the tenant can legally require the work to be carried out. At any rate, in the event of urgent repairs, like those required to prevent serious mishaps or imminent damage, the tenant may carry out the work and claim the cost from the landlord.

Can the landlord increase the rent due to improvements?

In the event of carrying out improvements, the landlord may not raise the rent for 3 years after the contract is signed. The annual increase in rent may never exceed the result of applying to the sum of the investment made the legal interest rate plus 3 percentage points, or 20% of the annual rent. In any case it may be agreed that the rent cannot be increased during the life of the contract.

Inheritance

What is a will and what is used for?

A will is a declaration of a person’s wishes regarding the disposal of his or her property after death. It is a very personal declaration that cannot be made through an attorney. A will is a revocable document and as many as required may be granted. Preparing a will secures the disposition of one’s assets, prevents conflict between heirs and saves them costs since they will not have to undertake notarial or court proceedings.

What is the legal portion?

The legal portion, or legitime, is the portion of the assets that the deceased may not decide to allocate since it is reserved by law for certain family members.

In Catalonia, this portion is 25% of the estate, or in other words, of the bequeathal existing at the moment of death, plus the assets given during the deceased’s last ten years alive once debts and costs have been deducted.

Who is entitled to the legal portion?

All of the children of the deceased are entitled to an equal share of the legal portion. The predeceased, justly disinherited, declared unworthy and absentees are represented by their respective direct descendents. In the event that the deceased has no surviving descendents, the parents will be the entitled to the legal portion.

What rights does a surviving spouse or partner have?

The spouse or partner has the right for one year following the death of the deceased to live in the marital home and to the clothing, furniture and belongings, and to be fed at the expense of the estate, in accordance with the standard of living that the couple had enjoyed while they lived together and with the magnitude of the estate.

Likewise, in the event that the surviving spouse does not have sufficient financial resources to meet his or her needs, he or she may claim what is known as a widow’s quarter, consisting of a maximum of a quarter of the value of the deceased spouse’s net estate, in order to meet such needs, also in accordance with the standard of living and age of the surviving spouse, his or her health, the salary or income her or she receives and foreseeable economic prospects.

What is a living will?

The living will allows people, while still in full possession of their mental faculties, to decide the medical treatment and care they wish and do not wish receive in the event of an irreversible illness that prevents them from consciously expressing their wishes for themselves. It is a document that can be revoked at any time which can envisage aspects such as organ or body part donation or methods of burial or cremation.