When two or more individuals are co-owners of an immovable property, all of them must contribute to the payment of the maintenance costs. The conservation of the common thing. Mortgage, etc. However, in practice, many co-owners fail to comply with this obligation. In this week’s article we analyse how and where to file a claim against a co-debtor.
What happens when a co-owner stops paying his/her share of the mortgage?.
Two people purchase a house in Spain with a mortgage. However, one of them fails to pay his part of the mortgage on the property they share. Furthermore, the co-debtor leaves Spain and moves to another country. Often, to avoid a possible seizure of the property, the other co-owner covers all the expenses. The question is: Can this co-owner claim against the co-debtor?. The answer is clear: YES. We discuss this below.
The reimbursement action as a basis for a claim against a co-debtor.
The legal basis of the claim is regulated in Article 1.145 of the Spanish Civil Code, which regulates the action of reimbursement or repetition. It states: “The payment made by one of the joint debtors extinguishes the obligation. The one who made the payment can only claim from his co-debtors the part that corresponds to each one, with the interest on the advance (…)”.
In other words, the owner who has fulfilled and paid the mortgage loan in full, can subsequently claim against the other co-owner/debtor. However, the co-owner who has paid does not subrogate in the position of the bank. A new credit with the debtor arises by virtue of the payment that extinguished the initial debt to the bank.
What happens when the co-debtor lives outside Spain. Is it true that I have to sue him in his country?.
As said a few lines back, the co-owner that refuses to pay sometimes leaves the country. This is intended to make it more difficult to claim against him/her. Although this strategy could delay the deadlines (due to the difficulties of serving the claim abroad; depending on the country), it his should not be an obstacle to the success of the claim.
When a co-debtor is served abroad, the main defensive argument is claiming that the Spanish courts do not have jurisdiction. And that since the debtor is domiciled abroad, it could be understood that the claim should be brought in that country and not in Spain. As we will see below, in reality this may not be the case.
Loan contract. Provision of services. International jurisdiction.
In accordance with the interpretation that judgment CJEU 15.06.2017 – C 249/16 made of the European Regulation 1215/2012 (in particular in relation to the action for reimbursement or repetition); it could be concluded that the applicable jurisdiction is set by the place of fulfilment of the main contract. That is to say, of the loan contract.
Thus:
.- We would be dealing with a contractual obligation, related to a contract for the provision of services.
.- In these cases, in accordance with Art. 7, 1 – b (2) of the aforementioned regulation, one would have to turn to the place where the service was provided. In the case of mortgage loans, that would be the bank’s domicile. Therefore, it would be possible to claim in Spain.
Conclusions.
If you are a co-owner who is considering initiating a claim against a co-debtor of a property in Spain, do not hesitate to contact us. At White-Baos Abogados we will offer you expert legal advice on the best way to claim.
The information provided in this article is not intended to be legal advice, but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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