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The expenses clause in mortgage loans.
Jan 20, 2017

The judgement AzizCJEU 4 March 2013- , in the midst of the economic crisis, marked a turning point in Spanish mortgage law. After its publication, it became clear how difficult it was for Spanish banks to provide for the successive judicial rulings - especially those of the national courts - with the systemic risk of preventing the long-term financing of real estate or business resources, which, as has already been pointed out in this Tribune, is key to maintaining the middle class and therefore to the democratic stability of a country.

There are several reasons for the problem that has arisen. Among them, the automatic nature of the execution, due to the fact that the content of the real right is registered - which Law 41/2007 tried to alleviate and obtained the reaction of an intense and combative reaction in the rulings of the DGRN - stands out; the systematic non-compliance by the banks with the obligation to provide closed loan minutes three days before the signing of mortgages for explanation and detail by the authorising notary - to which outsourcing to notary's offices contributes to a large extent; the insufficiency of the unilateral FIPRE - pre-contractual information sheet - which cannot replace impartial notarial advice and lastly, essentially, the refusal to provide notaries with effective legal instruments.

For years notaries have been denouncing the need for an effective transparency control, especially in advance of the pre-contractual phase but intensively at the time of signing, as well as the establishment of an effective disciplinary regime that discourages non-compliance. Both issues - transparency control and disciplinary regime - require the status of law and could have been in place for years. Instead, the doctrine of the DGRN, in recent years, has replaced notarial action with the strict registry qualification of court rulings - when, despite forced interpretations, there is no longer a contract - as in the fixing of interest for late payment of no more than two percentage points above the interest rate, which the Supreme Court decided. With retroactive effect, the registration of this clause was prevented, paralysing the execution of the contract (in which the money lent and the property had already been handed over) and creating, at the same time, an effect that would have a negative effect on the contract. border with respect to the clauses previously agreed and registered, adapted to the reform of article 114 of the Mortgage Law, which had modified this interest for the habitual residence (Law 1/2013).

In this context, the ruling of the Supreme Court (1st Chamber) of 23 December 2015, among other elements, declares abusive the clause in which the bank passes on the costs of the transaction to the client, considering that the procedural path to full registration is generated for the exclusive benefit of the lender. This shows the limitation of the effect of the contract in relation to the constituent right in rem due to the registration and deepens the possible lack of transparency in the conclusion of the loans. Of course, it generates a retroactive effect of five, ten or fifteen years, provided that the existence of the clause can be proven; the absence of a separate negotiation and the effective payment by the debtor, as in a long term contract the prescriptive effect does not play a role.

What does the nullity extend to? The Supreme Court expressly cites the notaries' and registrars' fees as well as the AJD tax, albeit with some details. It also refers to the whole of the expenses for the preservation of the guarantee or those motivated by pre-execution or formalisation of cancellation. Nothing is clearly stated with regard to the exclusive choice by the Entity at the client's expense, in 99.99% of cases, of the manager, with costs agreed by the Entity, often with a partial return, or of the appraisal expenses unilaterally determined by the Entity, among the regulated ones, a quality which does not imply uniformity in their quality, efficiency and fees.

The abusive nature of the clause relating to expenses in mortgage contracts concluded with consumers is based by the Court, essentially, on art. 89.3 of the TRLGCYU which sanctions the imposition on the debtor of expenses of documentation and processing that are the responsibility of the employer. It is considered that both the notarial and registry fees - it should be remembered that these are set by the government - attribute the obligation to pay to the applicant for the service in question or in whose favour a registration or certification is requested. It is the lender, says the court, who has an interest in obtaining an enforceable title (Art. 517 LEC) to obtain security in rem and to seek the possibility of a special execution.

This procedural speciality, as the judgment of the European Court of Justice in Aziz, can - despite the seemingly senselessness that a procedural step of the forum can be abusive, as it is not a contractual clause - generate a situation of imbalance for the consumer that prevents him from the procedural defence on the basis of the clause that has been declared radically null and void.

In this context, a two-pronged view of the costs of formalisation must be borne in mind. On the one hand, those already incurred, the possible recovery of which is based on contextual evidence that can be provided to determine the fixed effects, to be determined either by the courts or by extra-judicial mechanisms. On the other hand, those that are generated from the judgement in order to obtain pre-contractual commercial information from the Entity on a future loan. With regard to these, in order not to restrict the notary's function in the described regulatory scenario, the possibility of he who pays choosesIn other words, for the mere reason of economic effectiveness and cost savings, the institutions close - even more so in large cities - the possibility for the consumer to choose a notary. This restriction creates a new circle around the borrower who cannot choose his notary or, if he does not have a specific relationship of trust and professionalism, the notary who is most comfortable for him due to his proximity or references. It should not be forgotten that the notary is not only a public official, but also a professional who should be chosen, without restrictions, by the consumer in these contracts, so that the reasons for the concentration of loans by an institution in notaries determined by the institution itself should be carefully analysed. These reasons must be transparent, in order to avoid the aberrant effect, as is the case in the procedural sphere, of this choice being in itself an adjuvant to the abusive nature of a contractual position.