The Supreme Court insists that the notary cost of a mortgage is shared between bank and client.
The Civil Chamber of the Supreme Court has ruled on the recent ruling of the Court of Justice of the European Union (CJEU) of July 16 on the abusiveness of mortgage expenses on understanding that they imply harm to the consumer and, therefore, the clause must be annulled.
The current financial sector believes that the European ruling questions the distribution of the expenses established by the High Court in Spain.
In said ruling, the Supreme Court insists that “the First Chamber ratifies its doctrine on the nullity, as abusive, of the clauses that charge the borrower with the expenses and taxes of the mortgage loans, insofar as they imply, to the detriment of the consumer, an imbalance important between the rights and obligations of the parties to the contract. Regarding the consequences of nullity, the sentences of the Plenary of January 23, 2019 have been confirmed by the recent judgment of the CJEU of July 16, 2020 ”. According to the ruling, “once the clause that attributed all the expenses to the consumer borrower has been declared null and void as abusive, the court must begin to analyze who, in accordance with the legal and regulatory rules, corresponded to satisfy each of the disputed expenses , which, in this case, referred to the Tax on Documented Legal Acts, notarial expenses and registry expenses ”.
In both the 2019 and 2020 decisions, the Supreme Court favors a distribution of the expenses of the constitution of mortgage loans between the client and the bank. It clarifies that the consumer must pay the Tax on Documented Legal Acts (AJD), as well as 50% of the notarial fees, while the financial entity must assume the other half of the notary's expense and 100% of the cost of registering the mortgage. The sentence, however, does not analyze the appraisal of the home or the expense of the agency.
“The Chamber resolves the appeal by applying the norms of national law in force on the date of constitution of the loan, according to which the main taxable person obliged to pay the Tax on Documented Legal Acts was the borrower. On the other hand, the notarial expenses generated by the granting of the deed correspond in half to the lender and the borrower, since both have the status of "interested parties" that supports, in the Notarial Regulations, the payment of said expenses: the consumer by obtaining the loan and the bank for the mortgage guarantee. Lastly, the expenses of the property registry correspond to the bank, as it is the entity in whose favor the mortgage guarantee is registered, in accordance with the provisions of the property registrars' tariff ”, clarifies the Supreme Court, who insists on that "the CJEU has fully endorsed what was agreed in its day by the Civil Chamber of the Supreme Court regarding these expenses."
The Supreme Court agrees with the bank and clarifies that the judgment of the CJEU of July 16, 2020 "establishes the doctrine on the matter, coinciding with the jurisprudence of this Chamber", by establishing that "the fact that it should be understood that a clause contractual declared abusive has never existed justifies the application of the provisions of national law that can regulate the distribution of the expenses of constitution and cancellation of mortgage in default of agreement between the parties ”.
Thus, he again insists that:
The AJD must be assumed by the consumer, since he is the taxpayer.
Registration is assumed by the bank, since if the loan is not registered, there is no mortgage guarantee.
The notary must be divided equally to benefit both parties. In addition, the cost of canceling the mortgage falls on the borrower, as he is interested in the release of the lien, while copies of the deed will only be paid by the consumer if he requests them.
The position of the High Court does not coincide with other recent judgments, such as last week of the Provincial Court of Las Palmas, which ruled that the bank should bear all the costs of setting up the loan at 100%, except for the AJD; that is, the notary, the registry and the appraisal. On the other hand, in another, the Court of First Instance nº18 BIS of Malaga established the distribution of notary at 50%.
The energy certificate of a home is an official and mandatory document that includes the energy rating of a home or building. This energy rating is calculated based on the degree of energy efficiency of the property after an evaluation of the annual energy consumption necessary to meet the energy demand of the building or house under normal conditions of occupation and operation. In this post we detail everything you need to know about the certificate
It is an initiative of the European Union that is part of the effort to improve energy efficiency in all EU member countries. The energy certification provides two key pieces of information:
The energy efficiency of a property
The environmental impact of housing
Who issues it?
The Energy Efficiency Certificate is issued by a technician in possession of the academic and professional qualification (architect, technical architect, engineer, technical engineer) to carry out building projects or their thermal installations as required by current regulations.
It will be valid for 10 years and the owner will be responsible for the renovation or update according to what is established by the competent body of the autonomous community Open in a new window.
Grades come on an A-G scale, with A being the best score. This means that owners and occupants can compare the energy efficiency of different properties in a similar way to comparing the energy efficiency of refrigerators or washing machines.
The energy certification also includes a report with recommendations that lists the potential for improvements that can be made in the property to be able to:
Reduce energy bills
Improve energy efficiency
Help reduce carbon emissions
The energy certificate is divided into the following four sections:
The performance and environmental protection of the property
Estimated use of energy based on standard occupancy assumptions
Summary of energy efficiency functionalities
Recommendations to improve energy efficiency
Exclusions from the obligation to have an energy efficiency certificate
Buildings that, due to their characteristics, must remain open
Buildings and monuments officially protected by being part of a declared environment or because of their particular architectural or historical value, when the fulfillment of such requirements could unacceptably alter their character or aspect
Buildings used as places of worship and for religious activities
Provisional constructions with an expected term of use equal to or less than 2 years
Industrial and agricultural buildings, in the part for workshops, industrial and non-residential agricultural processes
Isolated buildings with a total useful area of less than 50 m2
Buildings of technical simplicity and of little construction entity that do not have a residential or public character, whether temporary or permanent, are developed on one floor and do not affect the safety of people.
Buildings purchased for demolition
Residential buildings that are subject to a lease for less than four months per year
When is a home energy certificate necessary?
The energy certificate is mandatory in Spain from June 1, 2013 to rent or sell a property or premises. The obligation to show the energy certificate is regulated in Spain by Royal Decree 235/2013. The energy certification regulations come from a European Directive that all member states have already complied with. The responsibility of obtaining this energy certificate is from the homeowner, who must hire the service of a certifying technician to obtain his energy certificate.