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Cobro internacional de alimentos

El cobro internacional de alimentos es sin duda la materia más compleja entre las incluidas en el Derecho de familia internacional, cuyo referente europeo es el R. (CE) del Consejo, 4/2009, de 18 de diciembre de 2008.  Es compleja por el doble deçapage que presenta:...

El desafío de la digitalización de la justicia en Europa

La sesión híbrida, presencial y online, se celebrará el próximo 4 de junio de 2024, a las 19:30 horas en la sede de la Real Academia de Legislación y Jurisprudencia, calle Marqués de Cubas, 13. Intervienen: Sofía Puente, Secretaria General de Innovación y calidad del...

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La Sección Sexta de Derecho Internacional Privado de la Real Academia de Jurisprudencia y Legislación de España celebra sesión online, vía Zoom, el próximo 8 de mayo de 2024, a las 19:00 horas. Intervienen: Ana Fernandez-Tresguerres, Notaria, Presidenta de la Sección...

Law 5/2019 on real estate credit agreements
Apr 25, 2019

The entry into force on 16 June of Law 5/2019, regulating real estate credit contracts, will mean important new developments in the arrangement of loans for the financing of residential property. Due to its importance, I will dedicate a series of articles to this matter. The current article studies the scope of application of the law and the successive nature of its entry into force and therefore of the transposition of Directive 2014/17/EU.

The European regulation establishes a specific protection regime for consumers who are considered borrowers, guarantors or holders of guarantees in loans secured by mortgages on residential real estate or whose purpose is the acquisition of residential real estate. The law extends this scope in some cases. However, in contrast to the preamble's assertion that "this law extends its legal regime to all natural persons, whether or not they are consumers."The reality is that only in the case of mortgage or similar contracts, as will be seen, is there such an extension, which would cover professionals and the self-employed. On the other hand, the protection of the law in non-mortgage loans is limited to the consumers whether they are borrowers, guarantors or guarantors. Defined in Article 4.2 the lender, real estate intermediary and borrower, however, are not defined "...".guarantor or guarantor". These expressions should be read as referring - despite the lack of specification - to the non-debtor mortgagor; to the provision by a natural person of personal surety in any of its modalities: joint or several; for a specific or temporary amount; during the life of the loan or in its total amount or the provision of movable guarantees (pledge of securities portfolio) whether this is done in the same deed in which the mortgage is formalised or in another related document, such as a mercantile policy, within the limits of Article 197 of the Notarial Regulations.

The lender, whether a natural person or a legal entity, for the purposes of the Act, intervenes in the financial services market on a professional or business basis or occasionally as an investor. Despite the apparent broadness of the definition, there is a wide range of exceptions, such as reverse mortgages. For its part, the credit intermediary is defined in its functions, specifying that the natural person who assists and manages the mortgage signing is not personally liable. The lender is responsible for the cost (14.1.e. 1).

From the objective perspective, although the law is not uniform in its terminology, loans and credits should be included (as indicated in Art. 2.3), i.e. those contracts in which there is a delivery of a present - as in the payment of a house - and those in which there is a provision of the amount, even on credit account, which are now less frequent.

The real estate collateral envisaged will not only be a mortgage. It is foreseen "another security right in residential real estate". What is meant is not clear. One can speak of antichresis and, in a broad sense, of the contracts covered by Art. 90 of the Insolvency ActIn the event of bankruptcy, claims secured by special security on real estate, even if they are not real property rights in the traditional sense of the term. Real estate leasing would be addressed to the self-employed or professionals or to any person for refurbishment. The inclusion of the resolutory condition provided for in Article 1504 of the Civil Code is more doubtful. On the other hand, the purpose of the loan is directed at purchase or preserve, (the latter term could encompass either reform, refinancing or both). property rights - are surface rights or usufruct rights to be understood as being included, as would appear from their purpose? - on land o real estate -not just plots of land, thus including land transformation activity prior to the more specific licence, and whether they are built or to be built.

The object that serves as collateral differs according to the type of loan: for mortgage loans it must be a residential property. Including storage rooms, garages and others which, without being dwellings, fulfil a domestic function. It is difficult to know which ones it refers to, except for common elements in the horizontal division or those inherent to the family farming activity, of dubious fit. The rule has no impact on administrative aspects, on the granting of licences, which will have to be considered as special rules. Land for construction purposes is only relevant, since the subjective perspective of the borrower or guarantor. It must be understood that loans on land or real estate built or to be built in which the borrower or guarantor is not a consumer, whether they are mortgages (not intended for domestic use) or not, are outside the scope of the law and will be governed by the criteria applied up to now, without any interpretation a contrario of the law, in relation to its form, derived from the wording of Art. 22, which is a specific rule in the context of the transposition of Directive 2014/17/EU and in no way alters either the mortgage right in rem or the enforceability of notarial deeds.

Finally, the rules laid down in Law 5/2019 cannot be waived and are mandatory. They will also be - says art. 3 - "...".its implementing rules". The technique employed is problematic, to say the least, insofar as it refers to the imperative nature of future Royal Decrees and ministerial orders. In addition to the implementing regulations envisaged in the financial sphere, a Royal Decree is being processed by emergency procedure, which will partially develop the law, in particular, aimed at verifying compliance with the principle of the material transparency of contracts, including the prior, compulsory and free notarial act, the analysis of which will be addressed once its development has been completed. The transposition of the Directive will not be effective until it has been completed. It should therefore be considered a mere error - one of several - that the 4th Transitional Provision considers the FIPER (EHA/2899/2011) to have been repealed as of 21 March, insofar as the non-existence until June of the FEIN - European Standardised Information Sheet - with directly applicable content would make it unfeasible in the following cases the interim the arrangement of mortgage loans.

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