Spain’s Banks Must Pay the Mortgage Tax from Now On

10 November 2018 – Expansión

The Royal Decree approved by the Council of Ministers last Thursday, which modifies the Law governing the Tax on Property Sales and the Documentation Registration Tax (ITP and AJD), comes into force today, following its publication in the BOE. The Decree establishes that the banks, and not the customers, are responsible for paying those taxes.

From today, the purchaser of an asset or right, and in his/her absence, the persons who initiate or request the notarial documents, or those in whose interest they are issued, shall be subject to the tax. When it comes to loan deeds with mortgage guarantees, the bank shall be considered the taxpayer.

In terms of new features, the Royal Decree introduces a new article in the exemption section, which means that “loan deeds with mortgage guarantees, in which the borrower is one of the persons or entities listed in section A) above” shall not be subject to the tax.

Those entities include the State and regional and institutional Public Administrations and their organisations for welfare, culture, Social Security, teaching and scientific purposes. Financial institutions will not be allowed to deduct this payment from their Corporation Tax charge from 2019 onwards, given that tax changes are applied to complete fiscal years. The tax that the banks will have to pay will amount to €2,500 on average per loan and will, according to the Minister for Finance, María Jesús Montero, contribute to the collection of €2 billion every year for the regional coffers.

The Government justifies the “urgent” need for “regulation” to dissolve the “legal uncertainty” created by the Supreme Court following its ruling to force banks to pay the tax, before resolving a few days later that it was returning to case law and therefore obliging citizens to pay it. “This succession of events has led to a situation of legal uncertainty, which affects the mortgage market as a whole, and which must be addressed immediately”.

Original story: Expansión

Translation: Carmel Drake

Supreme Court: Gains May Be Unfair If Banks Make Profits On Sale Of Foreclosed Properties

23 February 2015 – Expansión

The Supreme Court has established a doctrine and clarified the jurisprudence on the understanding that a bank may be unfairly rewarded in the event that it obtains a significant profit on the sale of a foreclosed home.

The High Court reached this conclusion after studying the case of a bank that launched foreclosure proceedings after the borrowers failed to meet their repayment obligations. The entity foreclosed the home for half of the value specified in the deed (escritura).

In this case, given that not all of the loan was paid off (following the foreclosure of the property), the bank filed a lawsuit against the borrowers and their two guarantors, for the difference between the debt and the value of the foreclosed property, plus interest and execution costs.

However, the borrowers had understood that, as a result of the action (the foreclosure), the debt would be considered to have been repaid, since the value of the property had been set by the bank itself on the basis that it would cover all of the debt relating to the mortgage. They argued, therefore, that the entity had obtained unfair gains.

Establishing doctrine

Although the (local) court rejected the claim and denied the existence of unfair gains, the Provincial Court of Córdoba upheld the appeal of the defendants and concluded that the foreclosure of the property at auction for a 50% discount was equivalent to a deed in lieu. Nevertheless, the Supreme Court did not share that ruling.

According to established case law, the Supreme Court Chamber, which has studied this case, stresses that “in principle, the exercise of the legal right to demand the unpaid part of the loan from the borrowers (following the foreclosure of the mortgaged property for 50% of its appraisal value) could not be regarded as a case of unfair gain”.

Nevertheless, the Supreme Court qualified its statement and noted that in the cases in which the foreclosure (of the property by the bank) is followed by a subsequent disposal (of the property) at a much higher price that the foreclosure price and for a very significant gain, then “it should match it with any outstanding loan and any claim made by the creditor to (share in) the profit”.

The Supreme Court Chamber insists that this clarification is supported by recent legislation introduced to strengthen the (legal) protection for mortgage borrowers.

Original story: Expansión

Translation: Carmel Drake