Tag: consumer protection

Congress Agrees that the Banks will Pay All Mortgage Costs, Except the Appraisal

13 November 2018 – Expansión

The political parties today agreed by majority that the new Mortgage Law will establish that notary expenses linked to the signing of mortgages will be paid by the banks and that the appraisal costs will be paid by customers.

Moreover, the notaries will carry out a questionnaire with each borrower to ensure that he/she understands all of the clauses in the mortgage contract, at no additional cost.

The Mortgage Law was presented again today at the Congress’s Economy Committee after the Government approved a royal decree law which stipulates that the Documentation Registration Tax (AJD) will be paid by the banks and not by customers.

The new Mortgage Law reflects that decision and makes it clear that the financial institution will pay for the first copy of the notary deeds; the customer will cover the cost of any copies he/she requests. Meanwhile, the registry costs will also be paid for by the bank; and the borrower will pay the appraisal expenses since he/she will be able to choose the appraisal company freely.

Nevertheless, several other important issues still need to be agreed, such as those relating to early repayment fees, late payment interest and the early termination clause of mortgages and which allows the foreclosure of homes depending on the debt that has been acquired by the borrowers (…).

On the other hand, the political parties will also have to decide about the entry into force of the new standards, given that the financial sector is asking for a margin of 6 months versus the 15 days that the draft bill is proposing.

The Mortgage Law, which is a transposition of a European directive, seeks to provide greater protection for consumers and promote transparency in the granting of mortgages, which is why the political parties have agreed that appraisal companies can be independent physical persons or legal entities (…).

Original story: Expansión

Translation: Carmel Drake

ECJ Puts An End To The Eviction Of Family Guarantors

21 October 2016 – Cinco Días

The European Court of Justice (ECJ) has ruled that mortgage guarantees from individuals to companies are protected by the European directive on unfair terms. In this way, the EU judges have opened the way for the cancelation of this kind of guarantee and its most draconian conditions, when the contracts favour financial institutions in an unfair way. The ruling also jeopardises the execution of guarantees between individuals, which are very common in the case of house purchases.

In less than a year, and thanks to one case in Italy and another in Romania, the European Court of Justice has revolutionised the treatment of mortgage guarantees, many of which will be protected by the European directive on unfair terms from now on. Until now, it was assumed that the guarantors of a company were responding to a professional relationship and therefore, they were not covered by the rules governing consumer protection.

However, that interpretation did not consider numerous guarantors whose relationship with the company was of a family or friendly nature, without any commercial interest whatsoever. And so, the European Court of Justice has put an end to the gap by classifying these types of guarantors as consumers.

In November 2015, the EU judges indicated and they have just reiterated (14 September 2016) that the European Directive 93/13 governing unfair terms should protect people who guarantee the credit of a company that they do not manage or hold majority shares in.

In such cases, the new European legislation considers that the guarantor is acting as a consumer and therefore, the national courts may cancel the guarantee if they consider that the contract did not inform them properly about the risks or if the contract grants an unfair advantage to the financial institution.

The lawyer Juan Ignacio Navas, Partner-Director of the law firm Navas & Cusí, classifies these types of guarantees, which do not generate any economic benefits for the guarantor, as “altruistic”. And he says that they are granted regularly, particularly in the case of small and medium-sized companies. (…).

Navas believes that the new legislation will not only affect guarantees for loans to companies but will also be extended to all types of individual guarantors. (…).

The lawyer said that many mortgage loans are signed with these altruistic guarantees: “Cousin, brothers, daughters, parents and friends, in other words, people linked by family or friendship ties, without any economic interest”.

Legal sources stress that in these types of contracts “the guarantor is risking something as important as his/her home without gaining anything in return and he/she does so because of the pressure exerted by financial institutions”. (…).

Nevertheless, other lawyers, such as the Partner of the law firm Jausas, Jordi Ruiz de Villa, warn that the rulings from the European Court only ensure that the conditions of these guarantees will be reviewed from the perspective of consumer protection and that even if a contract includes an unfair term, a judge may decide to just cancel that term or amend the commission charged without the need, for example, to cancel the entire guarantee.

As a result, some Spanish judges have already declared some mortgage guarantees to be null and void as they considers that they include unfair terms, which means that the rulings from the European Court may help halt the evictions of these kinds of family or friend guarantor.

Original story: Cinco Días (by Bernardo De Miguel and Juande Portillo)

Translation: Carmel Drake

Andalucian Gov’t May Exercise Withdrawal Of Eviction Orders

22 June 2015 – Europa Press

At their first meeting on Friday, Susana Diaz’s new Executive Board approved the launch of the proposed draft bill for the withdrawal of evictions, which will allow the Government to exercise the right of withdrawal in the case of mortgage foreclosures conducted over free (non-subsidised) housing by financial institutions.

The decision was announced by Manuel Jiménez Barrios, the Vice-President of the Government and Minister for the Presidency and Local Government, at a press conference. He explained that the Government may exercise the right of first refusal on purchasing homes or buildings that are subject to mortgage foreclosure or the settlement and payment of mortgage-back debt.

“With the legal alternative of withdrawal, our main objective is to obtain social housing for rent, in order to provide a solution for families that have been deprived of their homes as a result of the eviction process”, said the Vice-President of the Government.

Jiménez Barrios insisted that that Andalucian Government is pursuing a “triple objective”, namely: to enable affected families to stay in their homes; to increase the Government’s stock of public residential housing linked to social policies; and to ensure that there is sufficient supply in the hands of the Administration aimed at vulnerable people and those with special difficulties.

The Vice-President also said that the aforementioned legislation will be rooted in the approval of the Regional Housing Plan, which is now in its final stages; according to his estimates, it will be approved “within the next three months”.

The draft bill also amends the penalty regime in terms of social housing in order to strengthen the protection for consumers on the buy-side of transactions. (…).

The bill establishes the creation of withdrawal areas, where the Government may intervene and whose limits are defined in the Regional Housing Plan. These geographical areas are determined on the basis of the economic situation of resident families, demand for housing, the characteristics of the properties and the historical incidence of evictions in those areas. On an exceptional basis and where duly justified, the withdrawal formula may be applied elsewhere as well.

Moreover, the Regional Housing Plan will specify the socio-economic criteria that people affected by evictions must fulfil to activate intervention by the Administration. Once the withdrawal has been exercised, the affected persons will have the right of first refusal to rent the property that has been their habitual residence. (…).

Original story: Europa Press

Translation: Carmel Drake