In December 2015, the Supreme Court (STS No. 705/2015) recognized the nullity of the clause that financial institutions imposed on consumers to assume the full payment of the mortgage loan formalization fees due to its abusive nature. Recently, specifically on June 14, 2024, the Supreme Court (STS 857/2024) has created jurisprudence confirming the imprescriptibility of the nullity action, while the restitution action, consisting of the claim for said improperly charged fees, is five years (fifteen years before the modification of October 5, 2015) from when the nullity of said clauses was declared ("dies a quo"), previously confirmed by the Court of Justice of the European Union.
Assimilating the case to “unjust enrichment”, since the bank would have profited unduly by saving costs that it should have legally assumed and which, through the abusive clause, it shifted to the consumer, mortgage costs are understood to be those direct costs applied to the application and contracting of a mortgage, that is, notary and registry fees, taxes and agency fees.
Thanks to the Supreme Court ruling nº 44/2019, dated January 23, 2019, it was determined to what extent the payment of the aforementioned expenses should be distributed:
Tax on property transfers, type of documented legal acts (“notarial fee”): The court considers that both parties are interested in the granting of the public deed or notarial document for the constitution of a mortgage loan: the lender (bank) to obtain an enforceable title and a guarantee, and the borrower (client) because a loan with this type of guarantee has a lower interest than usual in loans without real guarantee (e.g.: consumer loans). Since both parties are interested, it is considered reasonable to distribute the payment of the expenses generated by its granting in half.
Property Registry registration fees: Royal Decree 1427/1989, of November 17, approving the Property Registrars' Fees, establishes in Rule Eight of its Annex II, section 1 that it corresponds to "the person in whose favor the right is registered or noted" and therefore this expense corresponds entirely to the mortgage creditor (bank).
Management/deed processing expenses: The Court understands that since there is no legal or regulatory rule that attributes its payment to the lender or the borrower and since the procedures are carried out for the benefit of both parties, the expense generated by this concept corresponds equally to the parties.
For all these reasons, if you took out a loan with real guarantee (mortgage) with a bank to acquire your villa, you may exercise before the Courts the action for annulment of the expense clauses and the action for restitution of the amounts paid unduly with the corresponding accrual of interest.
The legal and tax department of Abahana Villas S.L.U is at your disposal to advise you on the possible claim of mortgage expenses.
