This month we thought it was necessary to direct this article at everyone that has drawn up a mortgage agreement, as we have received a barrage of inquiries following the publication in the media of the recent ruling of the Supreme Court. It declares the clause outlined in the majority of mortgage deeds whereby the client pays the costs for the execution of the deed, preparatory work and judicial costs, to be abusive.
Up until now, banks had charged the client all of the costs that were generated as a result of executing the mortgage deed, its registration and taxes (or even subsequent costs and legal fees). However, with this clause now declared to be abusive by the Supreme Court, the banks will have to refund these costs.
With regard to the drawing up of notary deeds and their registration (necessary for the creation of the security right), with the fee of notaries, as well as that of property registers, the obligation to pay is attributed to the party requesting the service or in whose favour the right is registered or who is requesting a certificate. In this case, it is the bank that has the main interest in the documentation and registry of the mortgage loan deeds, as it thus creates the security right and requires the possibility of special execution. Therefore, this is a stipulation that causes the client imbalance for the client, that would not have been reasonably accepted within the framework of a personalised negotiation; and that also, appears explicitly outlined in the catalogue of clauses that the law classifies as abusive.
Likewise, the lending institution does not escape the taxes that may be yielded as a result of the trade operation, but rather, at least in relation to the tax on documented legal acts, it shall be a taxable entity in relation to the constitution of the right and, in any case, the issuance of relevant copies, documents and evidence which, through the disputed clause, that is unduly burdened on the other contracting party. In virtue of the fact that it contravenes regulations that in certain aspects of a mandatory nature, as well as because it infringes article 89.3 c) Recast Text of the General Law for the Defence of Consumers and Users, which deems the stipulation forcing the consumer to pay taxes on which the company is the taxable entity, the declaration of invalidity is fully adjusted to law.
People with the right to claim these costs are everyone that has a current mortgage or that have made payments no more than four years ago. The steps to follow involve first going to the customer ombudsman and then to the legal authorities. There is a period of four years for making claims starting from the September 2015 ruling, that is to say, the deadline is 24 December 2019. For those that have paid off the mortgage, they can claim if the total payment was made four years before the ruling, that is to say, from the 23 September on. It only affects consumers, not companies, and it affects mortgages on primary residences as well as second or third residences.
Although you can never think that it is easy to win claims and less so against banks, which have sufficient resources to appeal everything that goes against them, the fact that banks such as
Santander, BBVA, CaixaBank, Bankia, Sabadell and Ibercaja have modified their clauses after the Supreme Court ruling shows they are aware the clauses were not established well. Despite everything, there are claims in favour of clients, but also other against them. There have still not been a lot of rulings, therefore it is too early to say if clients are going to win en masse.
At Contasult we are available to study your specific case. It is necessary that you provide us with: mortgage deed, subsequent extensions or novations, mortgage payment receipts (only if it is current), invoice from the processing agency, invoice from the notary and corresponding Property Registry, payment slip for the Tax on Legal Documents, census certificate (if the mortgaged property is your main residence) and mortgage cancellation deed (if it was cancelled and had that document).
