Illustration by Jesús Benavides Lima

Notarial blog and other practical content

Don't look for any legal master classes in this blog. Just simple answers to different legal situations in which any person may find him/herself in the course of his/her life.
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How long does it take for my deed to be registered in the Land Registry?
Real estate and mortgage
Discover the deadlines to be taken into account when registering your right in the Land Registry.
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Real estate and mortgage
Real estate and mortgage
How can I help my child buy his or her first primary residence?
Real estate and mortgage
It is becoming more and more common for young people to require the help of their immediate family members in order to be able to access their first home.
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Real estate and mortgage
Real estate and mortgage
New ICO guarantees for home purchase start up
Real estate and mortgage
Find out the latest news on the launch of the new ICO guarantees for the purchase of a home
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Real estate and mortgage
Real estate and mortgage
Why are more and more people becoming domestic partners?
Family
Discover the recent changes, as well as the many doubts and queries generated by the figure of the unmarried partner in Spain.
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Family
Family
Top 20 community of neighbors queries
Real estate and mortgage
I answer the many questions about common and everyday situations that occur in communities of neighbors.
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Real estate and mortgage
Real estate and mortgage
What is a notarial real estate auction?
Real estate and mortgage
In this article we will try to analyze what notarial real estate auctions are, what types exist, how they are regulated and what is the procedure to be followed.
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Real estate and mortgage
Real estate and mortgage
 If I am married, do I need the consent of the other spouse to buy and mortgage, on my own, the family's primary residence?
Real estate and mortgage
Discover the new rules for those cases in which it is one of the spouses or partners who acquires the property alone.
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Real estate and mortgage
Real estate and mortgage
 New guarantees to finance the "down payment" of your home
Real estate and mortgage
Last Tuesday, February 13, 2024, the Council of Ministers approved an agreement to create a line of guarantees. Discover all the key points and its requirements.
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Real estate and mortgage
Real estate and mortgage
What's new 2024 in mortgage commissions
Real estate and mortgage
We begin the year 2024 with relevant novelties regarding mortgage commissions, especially for those debtors who are thinking of early amortization of their mortgage loans.
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Real estate and mortgage
Real estate and mortgage
10 key ideas to understand the new law on the digitalization of notaries
Other miscellaneous
This end of 2023 brings us, as a great novelty, the entry into force of Law 11/2023, which, in the notarial field, means the introduction of great novelties.
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Other miscellaneous
Other miscellaneous
What formalities do I have to do with the bank when I accept an inheritance with money?
Inheritance and donations
Banking procedures are one of the main concerns of heirs. Discover the important keys.
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Inheritance and donations
Inheritance and donations
What you should know if you are going to buy an off-plan or new construction home
Real estate and mortgage
Discover the essential requirements and guarantees to take into account when buying a new building.
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Real estate and mortgage
Real estate and mortgage
The novel concept of "de facto guardianship" and its practical application in day-to-day life
Family
The de facto guardianship is the star measure of protection chosen by the legislator, thus responding to a sociological reality in this area, that is, the fact that in most cases, it is the family environment (parents, children, siblings, etc.) who provide support and assistance to disabled persons.
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Family
Family
The importance of deadlines in the legal world: How are they computed?
Other miscellaneous
There are many examples in which legal deadlines are key factors for the proper exercise of our rights. A proper understanding of this reality becomes key and very important for citizens.
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Other miscellaneous
Other miscellaneous
Domestic Partnership in Spain. The updated guide for 2023
Family
Discover the requirements and obligations of forming a Domestic Partnership in Spain. This complete guide offers you everything you need to know to understand the current laws and procedures.
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Family
Family
What happens when there is no reference value? What value do I have to declare at the time of liquidating the Transfer Tax?
Real estate and mortgage
Since the entry into force of the famous "reference value" at the beginning of 2022, as a key element for calculating the ITP taxable base in the sale and purchase of real estate, the taxation of these transactions has been greatly simplified.
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Real estate and mortgage
Real estate and mortgage
How can I rectify an error in the square meters of my apartment registered in the Land Registry?
Real estate and mortgage
It is common to find apartments registered in the Land Registry, whose dimensions or description do not correspond to their physical reality. We explain you how to rectify it.
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Real estate and mortgage
Real estate and mortgage
The electronic public document: Basic concepts to handle
Other miscellaneous
In a few months, Spain will experience a true revolution in the notarial sector, thanks to the implementation of the electronic protocol and the possibility of granting public documents telematically.
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Other miscellaneous
Other miscellaneous
The importance of the Land Registry in Spain and its reflection through informative simple notes
Real estate and mortgage
The Spanish real estate market is one of the most dynamic in the world, partly thanks to the great system of preventive legal security that exists thanks to the Notaries and Property Registrars.
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Real estate and mortgage
Real estate and mortgage
What identification documents can I bring to the Notary to sign my deed?
Other miscellaneous
One of the most common questions that many clients ask us, is everything related to what document or documents they should bring. Here we explain everything.
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Other miscellaneous
Other miscellaneous
Did you know that... to become a notary it is necessary to have a law degree and then study a tough competition?
Other miscellaneous
Access to the Spanish Notary's Office is through a competitive examination system, in which the best candidates are selected to take part in the corresponding selective processes to obtain the title of Notary Public.
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Other miscellaneous
Other miscellaneous
Did you know that... notaries are not allowed to advertise?
Other miscellaneous
Although it may seem somewhat strange, Notaries, given their status as public officials, have strict limitations on advertising or marketing activities.
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Other miscellaneous
Other miscellaneous
Did you know that... notaries always keep all notarial documents that are signed before them?
Other miscellaneous
When a citizen executes a deed, he/she should know that the original of the public instrument he/she signs, which is called the parent deed, will be incorporated into the notarial protocol of that Notary Public.
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Other miscellaneous
Other miscellaneous
Did you know what... a notary is needed and useful for in Spain?
Other miscellaneous
The Notary Public is a public official whose main mission is to provide society with what is known as preventive legal security.
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Other miscellaneous
Other miscellaneous
Did you know that... notaries are not only civil servants but also self-employed professionals?
Other miscellaneous
The Notary, in addition to being a civil servant, is a legal professional, so that, unlike the vast majority of civil servants, he/she does not receive any amount from the State.
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Other miscellaneous
Other miscellaneous
Did you know that... notaries have a territorial limit for signing?
Other miscellaneous
Each Notary Public, by law and based on his or her appointment, is assigned to a locality, so that he or she is only empowered to give public faith within the locality to which he or she is assigned.
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Other miscellaneous
Other miscellaneous
Did you know that... if you do not agree with the professional performance of a notary public, you can file a complaint with his or her Notary Association?
Other miscellaneous
Notaries, as public officials, within the framework of their performance, must comply with the law in force, otherwise, they are exposed to the imposition of serious sanctions.
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Other miscellaneous
Other miscellaneous
Did you know that... notaries travel to sign outside their notary offices?
Other miscellaneous
In some cases the notary may travel to sign outside his office. We tell you all the details about it.
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Other miscellaneous
Other miscellaneous
Did you know that... there is a notary on call for emergency cases on holidays and weekends?
Other miscellaneous
In urgent cases you can count on a notary outside normal office hours. We tell you all the details.
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Other miscellaneous
Other miscellaneous
Did you know that... the opening hours of a notary's office, as well as its holiday periods, may be different?
Other miscellaneous
The opening hours of the notary's office can be freely fixed by the notary. We explain it in detail, as well as the vacation issue.
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Other miscellaneous
Other miscellaneous
Did you know that... all notaries should be paid the same?
Other miscellaneous
Clients who go to the Notary's office to sign a public document must pay the Notary the corresponding amounts, which take the legal form of a fee.
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Other miscellaneous
Other miscellaneous
Did you know... you can choose the notary you want?
Other miscellaneous
Any person interested in executing a public document before a notary may choose from among the 3,000 notaries in Spain.
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Other miscellaneous
Other miscellaneous
When I buy a property, can I claim damages discovered after the purchase from the seller?
Real estate and mortgage
Discover a practical guide in case you encounter damages after the sale of your property.
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Real estate and mortgage
Real estate and mortgage
Do you want to understand better and in more detail than that of incorporating a company with 1 euro?
Mercantil
The so-called "create and grow" law introduces options to create a company in an ultra-fast way. Learn about the advantages and disadvantages here.
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Mercantil
Mercantil
What is this about the new "Startups" law?
Mercantil
Find out about all the current aspects that any interested party should take into account when starting a new emerging or innovative business project.
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Mercantil
Mercantil
Practical guide to support measures for troubled mortgagors
Real estate and mortgage
Discover several interesting measures that have been launched to support mortgagors in financial distress.
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Real estate and mortgage
Real estate and mortgage
Why do I have to wait 10 days to sign my mortgage? And in Catalonia, why is it 14 days?
Real estate and mortgage
The current legislation is designed to protect the mortgagor. Find out here about the deadlines to take into account when signing your mortgage.
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Real estate and mortgage
Real estate and mortgage
If you have an adjustable rate mortgage, these legislative changes are of interest to you.
Real estate and mortgage
Learn about the new regulations that were urgently approved on 11/23/2022 and that impact mortgage debtors.
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Real estate and mortgage
Real estate and mortgage
How to obtain your NIF at a notary's office
Legitimations
With the new regulations you will now be able to apply for your NIF quickly, easily and simply at any Notary's office in Spain. Find more information in this article.
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Legitimations
Legitimations
Practical guide: Reference value: What is it and what is it for?
Real estate and mortgage
Since the entry into force of the "reference value" at the beginning of the year 2022, this issue is one of the ones that generates the most doubts and queries. We explain what it is and what it is for.
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Real estate and mortgage
Real estate and mortgage
Why does the bank force me to hire your agency to process my purchase and sale and mortgage loan?
Real estate and mortgage
In our day to day we often receive this question from customers who come to sign their mortgage loan in the process of closing their sale. We explain all the details.
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Real estate and mortgage
Real estate and mortgage
Be proactive and plan your digital legacy
Inheritance and donations
Who will receive access to my WhatsApp or Tinder account once I pass away? Questions like these should be planned for in a digital will.
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Inheritance and donations
Inheritance and donations
Limitations on cash payments
Prosecutor
Discover current regulations and limitations on cash payments in Spain
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Prosecutor
Prosecutor
Capital increase with contribution of real estate assets
Mercantil
Discover the tax implications of a capital increase with a non-cash contribution such as real estate.
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Mercantil
Mercantil
The "Hague" apostille. What is it and what is it for?
Proceedings and powers of attorney
Find out what the "Hague" apostille is and how it can benefit you if you travel abroad.
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Proceedings and powers of attorney
Proceedings and powers of attorney
What are the differences between an S.L. and an S.A.?
Mercantil
Learn about the characteristics and major differences between a limited company and a public limited company.
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Mercantil
Mercantil
Practical guide for notarized authorization of travel with minors
Proceedings and powers of attorney
It is becoming more and more common for minors to travel alone or accompanied by third parties. You will find here the practical guide for their notarized authorization.
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Proceedings and powers of attorney
Proceedings and powers of attorney
Practical guide to create an SL quickly and easily
Mercantil
Find out about the characteristics, requirements, advantages and steps to follow to incorporate a limited liability company.
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Mercantil
Mercantil
I want to start a business: what is better to be self-employed or to incorporate a company?
Mercantil
One of the big questions when it comes to entrepreneurship is the legal form through which the activity will be developed. Discover here the advantages of being self-employed or incorporating a company.
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Mercantil
Mercantil
I want to buy a building in Barcelona as an investment... Watch out, with the rights of first refusal of the Catalan administration!
Real estate and mortgage
Find out what rights are recognized by the Catalan autonomous regulations when certain transfers take place, with special reference to the rights of first refusal in the case of the sale of leased housing.
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Real estate and mortgage
Real estate and mortgage
What is the declaration of potentially polluting soil activities and how does it affect my property?
Real estate and mortgage
The new Law 7/2022 on waste and contaminated soils for a circular economy introduces a set of reforms that we explain in this article.
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Real estate and mortgage
Real estate and mortgage
What's new in 2022 regarding domestic partnerships?
Family
The Supreme Court has had the opportunity to issue a ruling in March 2022, in which it once again recalls the importance of properly formalizing this institution.
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Family
Family
Is it a good time to switch my mortgage to another bank?
Real estate and mortgage
Here you will find a practical guide with information of interest to take into account when considering the possibility of changing your mortgage bank.
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Real estate and mortgage
Real estate and mortgage
Plan your future: just as preventive medicine exists, so does preventive law.
Proceedings and powers of attorney
Find the actions that any person should take to ensure that, in the future, his or her person and property will be properly cared for.
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Proceedings and powers of attorney
Proceedings and powers of attorney
What is the legitimate share?  And what is more important, to keep in mind its possible tax implications when receiving it.
Inheritance and donations
In this brief article I will explain the tax implications for the heirs depending on how this payment of the legitimate is carried out by the heir.
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Inheritance and donations
Inheritance and donations
Practical guide (step by step) for inheritance proceedings
Inheritance and donations
A simple and practical guide for any interested party to know how to proceed to accept and process the corresponding inheritance.
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Inheritance and donations
Inheritance and donations
Brief compilation of the tax advantages or benefits that currently exist for primary residences.
Prosecutor
In this brief article I explain in an understandable way all the benefits or tax advantages that nowadays according to our tax legislation on the habitual residence.
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Prosecutor
Prosecutor
The notary's judgment of capacity: More important than ever!
Family
The year 2021 has brought us a true revolution in our legal system to protect the weakest when it comes to exercising their rights and obligations.
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Family
Family
Parents who want to help their children with the purchase of their first home: Possible formulas and their consequences
Real estate and mortgage
I will explain the three main ways in which parents can help their children to obtain the necessary financing for the purchase of their primary residence, providing, for this purpose, "extra guarantees".
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Real estate and mortgage
Real estate and mortgage
How is the extinction of a condominium taxed?
Prosecutor
Several people can share a property, but what happens to the taxation when this community is dissolved? I explain here the effects with practical examples.
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Prosecutor
Prosecutor
Why and how the new tax reform affects us when buying, donating or inheriting a real estate property
Prosecutor
We inform you about the tax reform that modifies the rules for calculating the taxable base of the Transfer Tax and the Inheritance and Gift Tax.
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Prosecutor
Prosecutor
"The NEW municipal capital gain"
Prosecutor
Find out about all the aspects to take into account in relation to the new regulation of the tax popularly known as "plusvalia municipal" in the light of all the facts and regulatory reforms that have recently taken place in 2021.
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Prosecutor
Prosecutor
Present and future of the incorporation of companies
Mercantil
Find out about all the current, present and future aspects that any interested party should take into account when incorporating a company or acquiring an existing one.
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Mercantil
Mercantil
What happened to DIAGONAL NOTARY 550 in Barcelona?
Other miscellaneous
The brand Notaria Diagonal 550 has ceased to exist as such. From now on, notarial procedures will be handled differently. Find here all the related information.
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Other miscellaneous
Other miscellaneous
If you wish, you can now take the oath or promise of Spanish nationality before a notary public.
Proceedings and powers of attorney
Find out here about all the steps you must take to obtain the nationality and about the new possibility of taking the oath before a notary.
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Proceedings and powers of attorney
Proceedings and powers of attorney
Early mortgage cancellation and financial loss. That great unknown
Real estate and mortgage
Find here all the information about fees or compensation that you must pay to your financial institution when you pay off your mortgage early.
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Real estate and mortgage
Real estate and mortgage
Same-sex marriage in Spain and the possibility of getting married before a notary public today.
Family
The 21st century undoubtedly began and continues with great advances in the civil sphere, a clear example of which is gay marriage in Spain and the possibility of getting married today before a notary.
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Family
Family
Limitations on the transfer of real estate in the city of Barcelona: Right of first refusal and withdrawal of the Catalan administration.
Real estate and mortgage
The real estate market in Catalonia, and specifically in the city of Barcelona, is increasingly facing more and more regulatory limitations or restrictions. In this brief article we comment on all the points to take into account.
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Real estate and mortgage
Real estate and mortgage
I am thinking of buying or selling a rented property... what rights does the tenant have?
Real estate and mortgage
The purpose of this article is to set out all the issues that both buyer and seller must take into account in the event that the property being transferred is leased to a third party.
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Real estate and mortgage
Real estate and mortgage
I want to buy a house on which there is a mortgage and I want to cancel it... How should I proceed and who assumes the costs of this cancellation?
Real estate and mortgage
This is one of the issues that generates the most nervousness and interest in the parties involved in a real estate sale and purchase, especially in the home buyer.
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Real estate and mortgage
Real estate and mortgage
Do I "always" have to pay municipal capital gains tax when I sell my home?
Real estate and mortgage
Everything you need to know about municipal capital gains tax [Impuesto sobre el Incremento de Valor de los Terrenos de Naturaleza Urbana] when you sell your home.
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Real estate and mortgage
Real estate and mortgage
Who pays IBI [Real Estate Tax] in the year in which the sale takes place?
Real estate and mortgage
Find out all the information about this issue that often causes confusion among the parties to a deed of sale.
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Real estate and mortgage
Real estate and mortgage
The certificate of debts with the community of owners
Real estate and mortgage
All relevant information about the certificate of debts with the homeowners' association.
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Real estate and mortgage
Real estate and mortgage
What is the Energy Efficiency Certificate?
Real estate and mortgage
We explain all the details to take into account about the Energy Efficiency Certificate of a property.
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Real estate and mortgage
Real estate and mortgage
What is the certificate of suitability of the building?
Real estate and mortgage
We inform you about the technical inspections to take into account in order to obtain a building's certificate of suitability
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Real estate and mortgage
Real estate and mortgage
What is the certificate of occupancy?
Real estate and mortgage
What is the cédula de habitabilidad and how can it be obtained? We inform you about all the important features.
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Real estate and mortgage
Real estate and mortgage
Old controversy on mortgage cancellation: How should the notary charge it and who should assume its cost: debtor or bank?
Real estate and mortgage
Understand what the cancellation of your mortgage registration is, how it is done and how much it will cost you.
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Real estate and mortgage
Real estate and mortgage
Real estate appraisal: The importance of getting it right when applying for a mortgage loan
Real estate and mortgage
A mortgage appraisal is a valuation of a property. Through this valuation, the financial institution knows the value of the property that guarantees the repayment of the loan.
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Real estate and mortgage
Real estate and mortgage
The taxation of a mortgage loan throughout its life: constitution, novation, subrogation and cancellation
Real estate and mortgage
The formalization of a mortgage loan by a financial entity is a transaction subject to and exempt from VAT, which is taxed by Stamp Duty (AJD).
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Real estate and mortgage
Real estate and mortgage
Get the right information on bank fees before signing your mortgage loan
Real estate and mortgage
This article aims to explain in depth the possible bank fees that appear in a mortgage loan contract formalized before a notary.
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Real estate and mortgage
Real estate and mortgage
Making a will in Catalonia in times of coronavirus (alternatives to the open will before a notary)
Inheritance and donations
How to correctly sign a will in Catalonia during the confinement phase by Covid-19
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Inheritance and donations
Inheritance and donations
What is an "ICO Loan" with which the government intends to come to the rescue of companies and the self-employed in the face of Covid-19?
Mercantil
The government intends to come to the rescue of companies and the self-employed with ICO loans. What do they consist of and what are the advantages and risks?
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Mercantil
Mercantil
What type of mortgage is best for you: fixed, variable or mixed interest rate?
Real estate and mortgage
The mortgage interest rates in an easy and clear way and we recommend you the best option at the moment. Discover the mortgage rate that suits you best.
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Real estate and mortgage
Real estate and mortgage
Updated repository of all existing regulations on taking out a mortgage loan.
Real estate and mortgage
Understands the regulatory framework for the formalization of mortgage loans in a clear, simple and summarized manner in order to be able to approach the subject knowledgeably
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Real estate and mortgage
Real estate and mortgage
Less than a month to go before the new real estate credit law comes into force!
Real estate and mortgage
The Spanish mortgage loan and credit regulation has been subject to a MAJOR UPDATE due to its mandatory adaptation to European regulations.
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Real estate and mortgage
Real estate and mortgage
Did you forget to include assets in the inheritance? - Addition of inheritance
Inheritance and donations
With the addition of inheritance, you can include new assets or rights not explicit in the initial deed of acceptance and partition of inheritance. How to do it and what to take into account.
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Inheritance and donations
Inheritance and donations
Can I renounce an inheritance? Find out how to do it and its consequences
Inheritance and donations
While accepting an inheritance is usually a positive event, sometimes people decide to renounce it. Find out what the consequences are and how to do it.
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Inheritance and donations
Inheritance and donations
How to carry out the acceptance and partition of the inheritance?
Inheritance and donations
The notarial acceptance and partition of the inheritance is made after the death of a direct relative. We explain how the deed is made, its different types and costs.
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Inheritance and donations
Inheritance and donations
Inheritance pact: Designating successors and distributing assets and rights during life
Inheritance and donations
The succession pact is an alternative to a will. It allows you to designate a successor and distribute your assets and rights during your lifetime. Learn about its benefits and conditions.
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Inheritance and donations
Inheritance and donations
Living will or advance directives
Inheritance and donations
If you suffer an accident or serious illness, you can make sure how you want them to decide for you. What is a living will or advance directive and how to obtain it.
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Inheritance and donations
Inheritance and donations
Intestate succession: What happens if I die without a will?
Inheritance and donations
Have you ever wondered what happens if you die and do not have a will? Here we explain what intestate succession is and what the role of the State is when this happens.
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Inheritance and donations
Inheritance and donations
Why have a will? How easy and cheap it is to do it
Inheritance and donations
Choose the destiny of your belongings when you die and do not let the law do it for you. Find out everything you need to know about having a will.
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Inheritance and donations
Inheritance and donations
Love is over: Separation or divorce before a notary public
Family
What to do when facing a separation or divorce? We explain which notary's office you should go to, the costs and advantages of registering a separation or divorce before a notary.
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Family
Family
Emancipation: Is it possible to anticipate a child's coming of age?
Family
Wondering if your responsible child should emancipate? Find out what emancipation means, what its benefits are and how to do it.
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Family
Family
Protected assets: How to always protect the weakest
Family
What happens when the person responsible for a person with a disability dies? We explain the role of the protected estate in these cases and how to use it.
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Family
Family
Anticipate the future: Self-guardianship
Family
Self-guardianship is a legal order that can be very convenient for you and your family in critical moments. Learn about its benefits and how you can get one.
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Family
Family
Prevention is better than cure: Make your power preventive!
Proceedings and powers of attorney
While preventive powers are rare, they are especially useful in the most difficult times. Find out what they are and how they could help you.
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Proceedings and powers of attorney
Proceedings and powers of attorney
Why are marriage contracts important?
Family
We all hope for a lifelong love, but it is also wise to consider marriage contracts. What they are and how they can benefit both of you.
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Family
Family
Do notaries come to my home?
Other miscellaneous
Notaries are obliged to travel if the situation requires it.
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Other miscellaneous
Other miscellaneous
Do you want to get married before a notary?
Family
If you are thinking of getting married before a notary, solve all the typical doubts quickly and easily.
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Family
Family
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It is possible to donate assets from an inheritance subject to administration rules.
June 2024
Inheritance and donations

Attached (HERE) Resolution of the Direcció General de Dret, Entitats Jurídiques i Mediació of June 4, 2024 (BOGC of June 12, 2024), in which the DG resolves a case related to a deed of donation, previously coming from an inheritance where administration rules had been established. In the case in question, a gentleman, in his will, appoints his daughter as heir, but also appoints a sister of said heiress as administrator of all the assets of the inheritance, also establishing that in relation to the real estate, the administrator may rent, alienate or encumber them without judicial authorization.

Once the deed of donation of that property (granted by the heiress and her sister administrator) was presented to the Registry, the Land Registrar refused to register it, alleging that the heiress is absolutely forbidden to dispose of the property and that, likewise, the inheritance rules established by the deceased (her father) do not authorize the administrator to complete the donor's consent to perform acts for free (i.e. a donation).

Upon appeal, the Directorate General revoked the qualification note, considering that if the testator has foreseen that the administrator may dispose of the assets and, likewise, has not established an express prohibition in relation to gratuitous acts, nothing can prevent the administrator, with the consent of the heir, from donating the property in question.

Testamentary dispositions to relatives of the spouse after a marital crisis also become ineffective
June 2024
Inheritance and donations

Attached (HERE) Resolution of the Direcció General de Dret, Entitats Jurídiques i Mediació of June 7, 2024 (BOGC of June 17, 2024), in which the DG resolves a case related to an inheritance coming from a gentleman who, being married, granted a will, in which he designated his wife as heir, with vulgar substitution in favor of his descendants, and in the absence of spouse and descendants, he instituted heirs of half of the inheritance to his parents, in equal parts, and with the right to increase among themselves, and the other half of the inheritance to his parents-in-law (that is, the parents of his wife at the time) , also in equal parts and with the right to increase among themselves. And in her absence, he replaces them vulgarly by their respective descendants. This gentleman, years later, divorces and subsequently dies.

After his death, his blood nephews and nieces (from "his family branch"), accept the inheritance, and present the same to the Land Registry for registration, and the Registrar refuses the registration, understanding that in the specific case, there is a problem of interpretation of the will, in such a way that, as the designation of those "parents in law" (that is, the parents of his ex-wife) is made in a nominative way (by their name and surnames), it could be interpreted that, in the context of the will, the divorce is not a cause of ineffectiveness of that substitution.

After the corresponding appeal, the General Directorate aligned itself with the appellant Notary, determining that, in accordance with art. 422-13.4 of the CCCat, once the divorce has taken place, the appeal to the "in-laws" (in-laws and their substitutes) becomes totally ineffective.

Beware of waivers of inheritance rights, as substitutes must also be taken into account.
June 2024
Inheritance and donations

Attached (HERE) Resolution of the Direcció General de Dret, Entitats Jurídiques i Mediació of June 11, 2024 (BOGC of June 19, 2024), in which the DG resolves a case related to an inheritance that is being settled by virtue of a succession agreement, in which, a Mrs., In this case, the DG resolves a case related to an inheritance that is being settled by virtue of a succession agreement, in which a lady pre-allotted half of the bare ownership of an estate to one of her two daughters, together with a residuary trust substitution in favor of the 4 grandchildren of the testatrix (that is, the children of the daughter to whom the estate was pre-allocated), in equal parts, and these in turn substituted by their descendants by lineage.

Once the inheritance has been accepted by the daughter, and her right has been registered in the Land Registry, the 4 grandchildren (i.e., the trustees), grant a deed of renunciation of the residuary trust, in which they effectively renounce the same. Presented to inscription in the Registry, the Registrar of the Property denies the inscription, alleging that in the presented document, the participants renounce to the residuary trust, but this does not cancel the trust, since the vulgar substitution exists for their descendants.

The General Management on this occasion aligns itself with the Registrar, confirming the qualification note, by determining that, in accordance with art. 426-7 CCCat, "the testator may provide for a vulgar substitution in trust for the case that the called trustee does not become a trustee so that he cannot or does not want to", so that, if the called trustee renounces the trust, the vulgar substitute is also a trustee.

Inheritance and divorce agreements. Ineffectiveness of the same
June 2024
Inheritance and donations

As a result of a case recently occurred in the office, it is recalled that, in accordance with the provisions of art. 431-17.2 CCCat, the inheritances or the particular attributions made in favor of the spouse or of the cohabitant in stable partnership, or of the relatives of these, unless the contrary has been expressly agreed or it results from the agreement, become ineffective if, after having been granted, the spouses separate in fact or legally, or get divorced, or the marriage is declared null, as well as if at the moment of the death there is pending a lawsuit of separation, divorce or matrimonial nullity, except for reconciliation.

In the case of a stable couple, they become ineffective if, after having been granted, the partners separate in fact, unless they resume their cohabitation, or the union is extinguished for a cause other than the death of one of the partners or marriage between them.

This also applies to relatives who are only related to the spouse or cohabitant, in direct line or in collateral line within the fourth degree, either by consanguinity or affinity.

The Golden Visa and its announced end
June 2024
Other miscellaneous

It is recalled that recently, through a parliamentary group, and with the support of the Government, the processing has been initiated for the elimination of the so-called "Golden Visa" currently provided for in art. 63.2.b) of Law 14/2013, which recognizes the possibility that a non-resident foreigner can obtain a visa for stay / residence in Spain if he/she acquires a property in Spain with an investment of value equal to or greater than 500,000 euros per applicant.

Although the measure is still in force (i.e., current buyers can continue to benefit from it), it is expected to be repealed in the coming months, which may have a negative impact on the high-end real estate market. To take into account and, where appropriate, inform clients about it (real estate agencies, potential buyers, etc.).

Temporary extension of deadlines for registration in the land register
June 2024
Other miscellaneous

It is recalled that, in accordance with the Resolution of the General Directorate of Legal Security and Public Faith of July 7, 2023 (HERE you can consult the same), once the so-called Electronic Registry has entered into force, by Law 11/2023, on a temporary basis, and until July 31, 2024, the term for the qualification and dispatch of documents in the Land, Mercantile and Movable Property Registries has been extended by 30 working days.

That is, 45 working days, of which 15 days correspond to the ordinary term + 30 days to the term provided for in the Resolution.

Furthermore, in accordance with the Resolution of the aforementioned Directorate General of June 19, 2024 (HERE you can consult it), the deadline for the qualification and dispatch of the documents is extended by 15 working days :

  • Filed and pending clearance as of July 31, 2024, provided that their ordinary qualification and clearance period had not expired on that date (extension cumulative to the extension of the deadline of the Resolution of July 7, 2023).

For example, a document filed on July 29, 2024 will have a clearance period of 60 working days (15 of the regular deadline + 30 of the deadline of the Resolution of July 7, 2023 + 15 of the Resolution of June 19, 2024).

  • To be filed from August 1 through August 31, 2024.

For example, a document filed on August 1, 2024 will have a clearance period of 30 working days (15 of the regular deadline + 15 of the Resolution of June 19, 2024).

These extensions, combined with the 10 working day period for notification of the act provided for in the common administrative law legislation, will lead in the coming weeks and months to a very significant extension of the registration period for documents filed in the Property, Mercantile and Movable Property Registries.

The registration in the Spanish property registry is governed by Spanish law.
June 2024
Inheritance and donations

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of April 9, 2024 (BOE of April 26, 2024), which has been analyzed in the recent WebiNots of the Association of Notaries of Catalonia dated June 26, 2024. It analyzes a case of private international law, in which a German deceased dies having granted a will in Germany (and German law being applicable to his succession), in which he appoints his children as heirs, and also appoints an executor.

In a first act, the heirs accept the inheritance of their father, which is registered in the Spanish Land Registry (i.e., the heirs are registered as owners of the estate in Mallorca). And, in a second act, the executor sells this estate to a third party (this being so because, according to German law, the executor is entitled to represent the community of heirs and to carry out acts of disposition).

However, the Land Registry refuses the registration applying the lex rei sitae, that is, based on the basic principles of Spanish registry law (principle of protection of the registered owner and of successive tract), by virtue of which the executor is not the registered owner of the estate with the power to sell the property, since its registered owners are the heirs, regardless of what German law may say.

After the corresponding Appeal, the General Directorate aligns itself with the Registrar, confirming that, once the heir's right is registered in Spain, the foreign law exhausts its effects and applies the lex rei sitae, so that as the property is already registered in the name of the heirs, they are its owners, and the executor no longer has the power to sell it.

In any case, this position is questioned or qualified by the specialists who analyze the Resolution in the seminar.

Public documents of countries belonging to the European Union, in matters of inheritance, do not require an apostille.
June 2024
Inheritance and donations

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of November 23, 2023 (BOE of December 14, 2024), which has been analyzed in the recent WebiNots of the Association of Notaries of Catalonia dated June 26, 2024.

It analyzes a private international law case, in which the controversy is mainly about the need or not for public documents in matters of inheritance coming from a foreign country belonging to the European Union to bear the apostille required by the Hague Convention No. XII, of October 5, 1961, nor legalization.

The Directorate General, in its Resolution, determines that, on the basis of Article 74 of the European Inheritance Regulation, regarding "legalization and other similar formalities", no legalization or similar formality shall be required for documents issued in a Member State within the framework of this Regulation".

Thus, in these cases (e.g., a declaration of heirs issued by a German authority), it will not be necessary to request the apostilled documentation.

Inheritance and taxation. Limitation periods to be taken into account
June 2024
Inheritance and donations

Attached (HERE) Judgment 2437/2024, of Chamber III of the Supreme Court, which deals with taxation in inheritances in which the right of transfer comes into play.

In summary, the judgment resolves that, in those cases in which the heir dies without having accepted or repudiated the inheritance of the deceased, transmitting this right to accept or repudiate to his heirs, the period for the prescription of the right of the Tax Administration to liquidate the Inheritance Tax, is counted from the moment of the death of the second causer or transmitter, and not from the death of the first deceased.

In addition, it is necessary to take this ruling into account, because the expiration or not of the statute of limitations period determines the type of acceptance of the inheritance that can be carried out. If it is considered that the statute of limitations period has elapsed, the inheritance can only be accepted purely and simply and not for the benefit of inventory, with the consequences that, from the point of view of liability, this entails.

Controversy with the electronic matrix and the notary's minutes
June 2024
Other miscellaneous

Recently, a controversy has arisen among certain financial entities in relation to the notarial minutes of public instruments, in particular, with regard to the charge of the diligences to be included in the matrix, derived from the additional actions imposed by the implementation of the new electronic protocol. This controversy is centered on the fact that, according to the interpretation of said entities, the new fee items related to the electronic protocol are services that have not been expressly requested by the entity, so that it is not appropriate to include them in the fees paid by the bank.

In contrast to this interpretation, it is necessary to specify that the new legislation introduced by Law 11/2023, of May 8, on the digitalization of notarial and registry proceedings (HERE you can consult it), obliges Notaries to carry out a series of additional actions when authorizing all kinds of public instruments, i.e., their incorporation into the electronic protocol, their comparison with the original matrix (in order to ensure the concordance between both documents) and, finally, their deposit in the database established for this purpose by the General Council of Notaries, which must be recorded in the public instrument by means of a diligence (art. 17.2 of the Law of Notaries).

Taking into account thethree obligations described above that the new legislation imposes on the Notary Public, all public instruments that are authorized must include these "incorporation ", "collation" and "deposit" diligences to show that these obligations that the law imposes on the Notary Public have been duly fulfilled, generating the corresponding fees provided for in Royal Decree 1426/1989, of November 17, which approves the Notaries' Tariffs (HERE you can consult the same), that is, 3.01 Euros each one of them, being in total 9.03 Euros.

Attached (HERE) a detailed description of the controversy and the legal analysis of the matter by the Notarial Office.

A right of option to purchase a pharmacy can be granted to a commercial company.
May 2024
Mercantil

Attached (HERE) Resolution of the Direcció General de Dret, Entitats Jurídiques i Mediació of April 30, 2024 (BOGC of May 10, 2024), in which the DG resolves a case in which the owner of a pharmacy located in Palamós grants a purchase option on the same, in favor of a commercial company.

The Mercantile Registrar denied the registration of the real right of purchase option on the grounds that the ownership of a pharmacy can only be held by an individual pharmacist (and not by a legal entity, as constituted in this case), based, among others, on art. 586-1 CCCat and other sectorial regulations.

The DG revokes the negative qualification, and admits the registration, based on the fact that in the deed of incorporation of the purchase option right itself it is agreed that the right of the optionor can be assigned to a third party (who can comply with the legal requirement) and that, likewise, it is specified that, when the right is to be exercised, all the requirements established in the deed of incorporation and the other legal and administrative requirements must be complied with.

Testamentary dispositions in favor of the spouse become ineffective in the event of a matrimonial crisis
May 2024
Inheritance and donations

Attached (HERE) Resolution of the Direcció General de Dret, Entitats Jurídiques i Mediació of May 8, 2024 (BOGC of May 15, 2024), in which the DG resolves a case in which a gentleman, in his will, institutes as sole heir to his wife, with a series of substitutions. Years later, the marriage is legally separated (with the corresponding judicial sentence) and, finally, the husband dies.

The wife intends to award herself the inheritance (among the assets, a real estate) on the basis of that will, which is rejected by the Registrar before whom the private request for acceptance of inheritance is presented, basically, on the basis of art. 422-13 CCCat, where it is determined that "the institution of heir, the legacies and the other dispositions that have been ordered in favor of the spouse of the deceased become ineffective if, after having been granted, the spouses separate in fact or legally, or divorce, or the marriage is declared null, as well as if at the moment of the death there is pending a lawsuit of separation, divorce or matrimonial nullity, except for reconciliation".

The DG confirms the qualification note, under the aforementioned precept.

The total cancellation of the mortgage right in rem upon partial payment of the secured obligation is a taxable transaction.
May 2024
Real estate and mortgage

Attached (HERE) Resolution DGSJFP of April 25, 2024 (BOE of May 17, 2024), in which the DG resolves a case in which the mortgagee (UCI), grants a total cancellation of a guarantee (real right of mortgage), before a partial payment of the pending debt (in the cancellation deed it is expressly recognized that part of the debt remains pending payment).

The Registrar denies the registration stating that, in such a case (partial payment), in accordance with the regional tax regulations, the transaction is subject to taxation (ITPAJD), so that the corresponding form accrediting the settlement of the tax must be submitted, since in accordance with art. 57 of DLeg 1/2018, the tax exemption in mortgage cancellations only corresponds when the payment (total, not partial) of the secured obligation occurs.

The DG confirms the qualification note, confirming that if the requirement that the cancellation be due to the (total) payment of the secured obligation is not met, the transaction is not included in the cases in which it is not obligatory to submit the corresponding tax settlement to the regional tax agency, so that in order for the cancellation to be registered, it will be necessary to settle the tax in question.

Succession with a UK Will. It is necessary to prove compliance with the requirements of the UK inheritance legislation.
May 2024
Inheritance and donations

Attached (HERE) DGSJFP Resolution of April 29, 2024 (BOE of May 16, 2024), in which the DG resolves a case related to an international inheritance, where a testator, of British nationality and residing in England, grants a will in 2003 in London before a local notary. Finally, he dies in the year 2022, after which, the deed of adjudication of the assets that the testator has in our country is authorized in Spain, before a Spanish notary, based on the indicated will, all this under the protection of that testamentary disposition.

The Registrar refuses the registration since, as it is a will from the United Kingdom, it must be accredited that the "probate" or adveration has been obtained fromthe Authorities of that country and, also, because the legislation governing the succession, under the European Regulation on succession 650/2012, is not stated in the deed of acceptance of inheritance.

The DG fully confirms the qualification note, determining that, in this case, as there is no express "professio iuris" on the part of the deceased (i.e. choice of law applicable to his estate), it is required to provide the "probate" (result of a legal process to be followed in the United Kingdom through which a Court supervises and approves the distribution of the assets of the estate in favor of the heirs) as well as the express determination of the law applicable to the succession.

Purchase and sale and means of payment. If the price is paid by check, it is obligatory to incorporate testimony of the check.
May 2024
Real estate and mortgage

As a reminder, attached (HERE) DGSJFP Resolution of April 23, 2024 (BOE of May 15, 2024), in which the DG resolves a case that serves to keep in mind that, in the context of a sale of real estate, if the price is paid by check, it is mandatory to incorporate a testimony of the same to the deed of sale, otherwise, this will prevent the registration of the document.

Declaration of new construction due to age and horizontal division. Be careful because, depending on the case, it may be necessary to obtain an urban planning license.
May 2024
Real estate and mortgage

Attached (HERE) DGSJFP Resolution of April 24, 2024 (BOE of May 15, 2024), in which the DG resolves a case in which a deed is granted before a Notary, a deed of declaration by seniority of completed new construction and horizontal division, by virtue of which, within a plot where there was a dwelling, it is now declared that there are actually 2 independent dwellings, proceeding also to formalize a horizontal division of said property into two completely independent parts (i.e., it is declared that there are 2 dwellings and the existing land is divided between them, in an exclusive and excluding manner, with their independent surfaces, their own boundaries, etc.).).

The Registrar denies the registration alleging that, in this case, it is really an act of material division of property or subdivision, for which the corresponding administrative resolution of granting of urban planning license or municipal declaration of unnecessary use is required, this criterion being confirmed by the DG in the resolution of the corresponding appeal.

Sale of real estate by a divorced person. It is not necessary to provide the judicially approved settlement agreement.
May 2024
Real estate and mortgage

Attached (HERE) DGSJFP Resolution of April 24, 2024 (BOE of May 15, 2024), in which the DG resolves a case in which a divorced person (previously married in a conventional regime of separation of property), sells a property of his property, stating that the property object of sale does not constitute the habitual and permanent residence of his family.

The Registrar refuses the registration on the grounds that, in such a case, it is necessary to provide the corresponding judicially approved regulatory agreement, from which it is clear that the use of such property is not attributed to the former spouse or, otherwise, the ratification of the latter, without the unilateral statement of the transferor that the property being transferred "does not constitute the habitual and permanent residence of his family" being sufficient.

The Notary Public authorizing the document presented the corresponding Appeal before the DG, which was upheld, considering that in such a case, since there is no record in the Registry or in the qualified document that the use of the dwelling has been attributed to another person, there is no rule that imposes the obligation to exhibit the corresponding judicially approved regulatory agreement, from which it appears that the use of the dwelling is not attributed to the former spouse, or, otherwise, the ratification of the latter.

Amendment of the bylaws and the right of shareholders to information. It is not necessary to expressly include in the notice of the meeting the right of the shareholders to examine the full text of the proposal if the full text of the resolutions is included in the notice of the meeting.
May 2024
Mercantil

Attached (HERE) DGSJFP Resolution of April 16, 2024 (BOE of May 15, 2024), in which the DG resolves a case in which a modification of the corporate bylaws (transfer of domicile, change in the structure of the administrative body, form of convening the meetings, etc.) is made public. In the specific case, the agenda of the notice of the general meeting contained the full text of the resolutions to be debated, as well as the new wording of the articles of the articles of association proposed to be amended.

The Mercantile Registrar denied the registration on the grounds that the right of information to the shareholder (art. 287 of the Capital Companies Act) had not been duly respected, by virtue of which the shareholders have the right to examine, at the registered office, the full text of the proposed amendment.

Against this classification, the corresponding appeal was lodged, which was upheld by the Directorate General, determining that the notice of the general meeting clearly stated the content of the amendment to the bylaws and the full text of the resolutions submitted for debate, as well as the new wording of the articles of the bylaws whose amendment was proposed (and, in the specific case, moreover, the three sole partners were also joint and several directors of the company, and therefore not only had the right but also the duty to be informed of the progress of the company's affairs and could access all the company's documentation, and there is no evidence that the non-convening joint and several directors were prevented from accessing this information).

The extinction of condominium on real estate acquired on the basis of different titles of ownership is subject to stamp tax.
May 2024
Prosecutor

Attached (HERE) Sentence of the Supreme Court 2218/2024, of April 30, where a case is resolved in which two brothers are co-owners of 3 properties, of which, 2 of them are acquired by purchase and sale, and the third one, by donation of a relative. After some time, the brothers formalize the dissolution of the condominium of the 3 properties, presenting it as if it were a single community.

In view of this procedure, the regional tax administration initiated a value verification procedure, in which it finally classified the transaction as an exchange, and it was therefore necessary to pay tax for it under the Onerous Transfer of Property Tax, since it considered that the assets over which they shared ownership formed two different communities of property in view of the different acquisition titles.

The case finally reaches the Supreme Court, which, revokes the criterion of the administration, determining that the extinction of two condominiums, formalized in public deed, when the two indivisible real estate properties on which one of the condominiums falls are awarded, which compensates the excess of awarding part in cash, part by the delivery of several movable properties and a real estate property that was the exclusive property of one of the co-owners, constitutes for the said awardee a case of not being subject to the modality of Onerous Property Transfers, and must therefore be taxed by the gradual quota of the modality of documented legal acts, without it being relevant for tax purposes that the awarded goods had been acquired and incorporated to the condominiums by virtue of different titles of acquisition.

The acquisition for valuable consideration by the third party in good faith is protected by the public faith of the extension of the registration of the entry of the title in the land registry.
May 2024
Real estate and mortgage

Attached (HERE) Sentence of the Supreme Court 2171/2024, of April 8, where a case is solved referring to the constitution of a mortgage on a property, property of a co-owner who was awarded in a dissolution of condominium that later is declared invalid by the courts of justice. In the specific case, the extinction of the condominium and the mortgage are signed on the same day, simultaneously and consecutively in the corresponding Notary's office.

The Supreme Court resolves that the protection of the public faith of the third party acquirer in good faith operates from the moment in which the filing entry is made in the Land Registry, so that, in the specific case, as when the mortgage was signed, the extinction of the condominium had not yet been filed in the Registry (so that the filing entry did not yet exist), the right of the bank is not protected by the public faith of the registry of art. 34 LH, so that when the registration of the extinction of the condominium was declared invalid, the registration of that right in rem mortgage should also be annulled. 34 LH, so that when the extinction of the condominium is declared invalid, the registration of the mortgage right in rem must also be annulled.

Right of first refusal in real estate transactions of large real estate holders in Catalonia
May 2024
Real estate and mortgage

It is reported that the Catalan Decree Law 6/2024, of April 24, on urgent housing measures (HERE) has not been validated by the Parliament of Catalonia, so that the right of first refusal in transfers of large legal entity holders indicated in the April newsletter remains without effect.

Partition of inheritance in common law. It is not necessary to notify the legitimatist of the partition by the testamentary accountant-partidor in order to register the real estate awarded to the heirs.
May 2024
Inheritance and donations

Attached (HERE) Resolution DGSJFP of April 23, 2024 (BOE of May 15, 2024), in which the DG resolves a case regarding a partition of inheritance of a lady, deceased with will, in which, she bequeaths the usufruct of the inheritance to her husband, appoints 3 of her children as heirs, and to a fourth daughter, she bequeaths the strict legitimate that corresponds to her (empowering the heirs to pay this legitimate in cash, even extra-heirship). In the deed of partition, the distribution of the inheritance is made among the heirs, and as regards the bequest of that daughter, it is determined that, among the assets of the inventory, there was a balance in a savings account from which the legatee of the strict legal reserve is awarded the amount necessary for the payment of the same, expressing that "this amount, once the bequest is accepted and the tax is settled, will be transferred to the account indicated by the legatee".

Once this deed was presented for registration in the Land Registry, the Registrar denied the registration of some properties in favor of the heirs because in his opinion, in accordance with art. 844 of the Civil Code and art. 80 of the Mortgage Regulations, it is necessary that the existence of this legitimate right be made known to the beneficiary (by means of a deed or other public document), within a period of one year.

After the corresponding appeal, the DG revokes the qualification note indicated, determining that there is no specific provision in the law, nor pronouncement in the jurisprudence, nor doctrine, by which, in the case of partition carried out by the testamentary accountant-partidor, the prior knowledge by the legitimatist or at least his notification to him, is required for the registration of the partition.

Dissolution and liquidation of a company. It is not necessary for the final liquidation balance sheet to comply with the general accounting plan.
May 2024
Mercantil

Attached (HERE) Resolution DGSJFP of April 23, 2024 (BOE of May 15, 2024), in which the DG resolves a case related to a dissolution and liquidation of a SL, to whose deed is attached a liquidation balance sheet where there are no creditors, with a series of asset items, and with liabilities equal to 0.

The Registrar denies the registration, alleging that there is an error in the final liquidation balance sheet, since fundamental items are missing (such as the capital stock) and because, likewise, liabilities and assets should be equal.

Upon appeal, the DG revoked the qualification note, arguing that the final liquidation balance sheet operates as a closing account, and therefore it is not necessary to include it in the rules regulating the structure and content of the ordinary balance sheet of a corporate year (and also because the statements in the deed may reflect relevant data for registration, such as, for example, the amount of capital stock that does not appear in said balance sheet).

Disinheritance in a will of an heir under 14 years of age is only valid if it is recognized by a court judgment.
April 2024
Inheritance and donations

Attached (HERE) Resolution DGSJFP of January 15, 2024 (BOE of February 23, 2024), in which the DG resolves a case in which a person, in will, institutes heirs to two of his children and, likewise, disinherits a third son and also the descendants of this disinherited son (ie, her grandchildren, two minors aged 13 and 8 years), leaving on record in the will their contempt for her person and their lack of interest in maintaining the relationship between the grandmother and the grandchildren.

The Registrar denied the registration on the grounds that, since two of the beneficiaries of the will of the deceased were minors at the time of the granting of the will, their intervention in the partition of the inheritance could not be disregarded, since the minors lacked the aptitude to be legally imputable for the conduct that constitutes the legal cause of disinheritance.

The DG, aligning itself with the Registrar, resolves that, for minors under 14 years of age, their inimputability must be assumed in the absence of the corresponding judicial pronouncement on the conditions of maturity of the minor that make him/her suitable to be the passive subject of the disinheritance, so that, unless there is a judicial sentence that validates the disinheritance, this cannot be considered effective in the patrimonial and registry level.

Sale of property belonging to an incapacitated person. If there is a judicial resolution that authorizes the sale and it is incorporated to the deed, it is sufficient.
April 2024
Real estate and mortgage

Attached (HERE) Resolution DGSJFP of February 15, 2024 (BOE of March 14, 2024), in which the DG resolves a case in which a person, incapacitated, sells some properties, being represented in this act by his guardian, not stating in the deed neither the fact of having sent to the Civil Registry the corresponding judicial resolutions regarding the appointment of guardian nor the acceptance of the position.

The Land Registrar denies the registration for this reason, and the DG, upon the appeal of the Notary, aligning itself with the latter, determines that, in this specific case, this defect must lapse, since in the deed of sale a judicial order expressly authorizing this sale is provided and incorporated, so that, as the act of prior control by the judicial authority is included in the qualified deed through a resolution whose content leaves no room for doubt and has fulfilled the function of control of certain powers which, as legal representative, are the responsibility of the guardian, it must be concluded that the registrar has all the necessary elements to qualify the judicial authorization that constitutes sufficient proof of the support measure and on the referred charge and gives support to the dispositive act carried out by the guardian on behalf of her represented party.

Liquidation and extinction of SL with assets and debts not yet due. It is necessary to deposit the money to face these non-callable liabilities in a credit institution.
April 2024
Mercantil

Attached (HERE) DGSJFP Resolution of March 21, 2024 (BOE of April 16, 2024), in which the DG resolves a case in which an SL agrees its liquidation and extinction, with the particularity that it has assets (28,419.60 euros), as well as a liability not due (the Corporate Tax of 2023 that still could not be paid due to a question of dates). The company adopts the agreement, making a provision for the payment of this Corporate Tax, allocating the rest of the assets to the corresponding partners.

The Mercantile Registrar denies the registration stating that, in these cases, since there is a liability not yet due and an asset with which to meet it, it must proceed, in accordance with the provisions of Article 391.1 of the Capital Companies Act and 247.2.3.ª of the Mercantile Registry Regulations, i.e., to deposit the corresponding amount in a credit institution to meet said payment as soon as the regulatory period for such payment is opened.

After the corresponding appeal was filed by the Notary Public authorizing the deed, the DG finally agreed with the Registrar, ruling that, in a situation such as the one arising from the case (sufficient assets and debt not due on the balance sheet), the legal provision is that the assets be distributed as approved by the shareholders (Article 390 of the Capital Companies Act), without prejudice to the non-callable liabilities being duly consigned to a credit institution so that, when the time comes, they can be paid (Articles 391.1 and 395.1.b).1 and 395.1.b) of the same law).

Pension plans do not form part of the inheritance, so that upon the death of the holder, the vested rights correspond to the person designated by the participant or, failing that, to the person determined by the plan's regulations.
April 2024
Inheritance and donations

As a result of a recent consultation made by a client, on this issue (pension plans and their relationship with the estate), the doctrine of the SC on the matter, set forth in its STS 274/2021, of May 10, is recalled, in which it is established that "as far as the issue raised in this appeal is concerned, we must start from the fact that the legislator has left out of the scope of inheritance the benefits that the beneficiaries are entitled to receive in the event of the death of the members of a pension plan or the participants of pension plans, we must start from the fact that the legislator has left the benefits that beneficiaries are entitled to receive in the event of the death of the members of a pension plan or of the participants in pension plans outside the scope of hereditary succession. The right to the corresponding benefits generated in each plan in favor of the members or participants is not acquired by inheritance; therefore, even in cases where the beneficiary and the heir are the same person, the right to the benefit is subject to its own rules and not to the legal regime of inheritance. As is similarly established for life insurance in art. 88 of Law 5/1980, of October 8, 1980, on insurance contracts, and saving the differences between the two figures, the benefit must be delivered to the beneficiary in fulfillment of the contract even against the claims of the legitimate heirs and creditors of the policyholder".

Termination of administrator and notification abroad
April 2024
Mercantil

Attached (HERE) DGSJFP Resolution of March 19, 2024 (BOE of April 11, 2024), in which the DG resolves a case in which it is agreed the dismissal of a sole administrator of a SL, which has its domicile abroad.

The DG determines that, in these cases, the route of Article 202 of the NR is not the only one, so that if the cédula is sent by registered mail with acknowledgement of receipt and delivery cannot be made, alternatively, for such notification, one can also resort to the route of Regulation (EU) 2020/1784, on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (or, where appropriate, to the Hague Convention of 15 November 1965), where it is determined that the notarial notification must be served through the transmitting body designated by the Kingdom of Spain, that is to say, through the lawyer of the Administration of Justice corresponding to the court of the domicile of the authorizing notary (in these cases, the client must therefore go to the Court of the place where the notarial office where the deed has been signed is located and request the lawyer of the Administration of Justice of said Court to forward the document to the addressee, through the procedure established in said European regulations).

Expansion of corporate purpose and right of separation of partners
April 2024
Mercantil

Attached (HERE) DGSJFP Resolution of March 11, 2024 (BOE of April 11, 2024), in which the DG resolves a case in which a company submits for registration a deed of extension of corporate purpose and modification of bylaws, agreed by its General Meeting, in which said SL, originally dedicated to the general cleaning of buildings and their maintenance, now extends its purpose to disinfection, rat extermination and disinsectation services, as well as to the transport of goods by road and transport agency.

The Mercantile Registrar refuses the registration (and the DG confirms it), ruling that the addition of an activity to the corporate purpose is a substantial modification of the corporate purpose which gives rise to the right of separation of the partners who have not voted in favor of this change of corporate purpose.

Therefore, in these cases, the deed of amendment of the corporate purpose that is signed must include the publication or declaration that the agreement has been communicated to those shareholders who have not voted in favor (article 348 LSC), and the declaration of the administrators that no shareholder has exercised the right of separation within the established period or that the company, after authorization of the general meeting, has acquired the shares of the separated shareholders (articles 346 and following LSC).

Sale of property by proxy of a company. Adequate description of all the circumstances of the proxy is required.
April 2024
Real estate and mortgage

Attached (HERE) DGSJFP Resolution of March 26, 2024 (BOE of April 17, 2024), in which the DG resolves a case in which a company, represented by an attorney-in-fact, sells a property. The authorizing Notary Public, when reviewing said power of attorney, does not specify whether it is general or special, whether it is registered or not, nor the person who grants said power of attorney on behalf of the company in favor of the attorney-in-fact.

The Land Registrar refused the registration, alleging that the representation of the attorney-in-fact is not adequately described, being this criterion confirmed by the DG, since the notary authorizing the qualified deed merely states that the intervening party in representation of the registered company acts by virtue of a power of attorney granted by means of a deed of his protocol, but omitting any reference to the special nature or not of the same, to the person granting the power of attorney and to the representative title linking the latter with the company, thus lacking the necessary circumstances for the registrar to be able to check that the authorized title allows her to corroborate that the notary has exercised his function of assessing the existence and validity of the power of attorney and the sufficiency of the powers it confers in a complete and rigorous manner.

Content and form of the notice of the general meeting. Aspects to be taken into account
April 2024
Mercantil

Attached (HERE) Resolution DGSJFP of March 22, 2024 (BOE of April 16, 2024), in which the DG resolves a case where the Registrar refuses the registration of a deed of elevation to public of corporate resolutions (dissolution and extinction of the company and appointment of liquidator), considering that the notice of meeting was not well done because it was not sent by the administrator (but through a third party, that is, the postal service of the "Colegio de Abogados de Palma") and, also, because in its content, the agenda simply included the dissolution of the company for legal reasons (without specifying it concretely).

In this case, the DG resolves to revoke these defects, determining that if the notice of meeting comes from the administrator and is signed by him, even if it is sent by a third party, it is valid and, likewise, that the agenda on dissolution for legal cause is valid without the need to express the specific cause of the dissolution.

Sale of real estate by a bankrupt entity. A final court decision authorizing the sale is required.
April 2024
Real estate and mortgage

Attached (HERE) DGSJFP Resolution of March 19, 2024 (BOE of April 11, 2024), in which the DG resolves a case where a deed of sale is presented for registration, in which the selling company is in insolvency proceedings, in the liquidation phase, and the sale is carried out in accordance with the liquidation plan approved by a court order which is not final.

The Registrar refuses the registration for this reason (lack of finality of the order) and the DG confirms it, thus determining that for the sale of a property of a bankrupt entity in liquidation, the order approving the liquidation plan must be provided, stating its finality.

Remuneration of the director of a company. The remuneration system must be set out in the articles of association.
April 2024
Mercantil

Attached (HERE) DGSJFP Resolution of December 4, 2023 (BOE of December 27, 2023), in which the DG resolves a case in which it determines that, in relation to the remuneration system for the position of director of a company, the bylaws must determine the specific form in which such remuneration will be paid (i.e., it is not admissible to describe several alternative systems and leave the specific choice to the discretion of the general meeting).

In any case, not to be confused with the competence of the Meeting to approve the maximum amount of the annual remuneration of all the directors, since here what is indicated is that the Bylaws must establish the specific form in which the directors are remunerated (for example, a fixed allowance or a share in profits), without it being admissible to describe several alternative systems and leave it to the general meeting to choose among them which one it chooses in the specific case.

Sale of property with registered right of use in favor of children under 16 years of age. Judicial authorization is required
April 2024
Real estate and mortgage

Attached (HERE) Resolution DGSJFP of March 11, 2024 (BOE of April 11, 2024), in which the DG resolves a case where the sale of a property belonging in joint ownership to two ex-spouses is formalized, and in which there is a right of use in favor of the children, fixed in the judicial sentence of divorce.

In these cases, the GD determines that, if the children are under 16 years of age, judicial authorization will be required for the sale, while, if the children are over 16 years of age, their consent in a public deed will suffice.

Communications with Land Registries
April 2024
Real estate and mortgage

On May 9, the part of the law 11/2023 that regulates communications between notaries and registries will come into force. This fact is requiring modifications to the SIGNO applications and communication systems, on which the technicians of both corporations have been working for weeks. As regards the forwarding of copies of deeds to the registries, the changes visible to the notary's offices will be minimal, affecting only some new data established in the resolution of the DGSJFP of July 20, 2023, despite the significant progress in security that the new system will bring. As for the obtaining of registry information through the continued simple notes, and given that the law prohibits the use of the telefax, a repository system will be used, which notaries will be able to consult as many times as necessary, at no additional cost to that of the note itself.

In any case, I would like to remind that the resolution of the DGSJFP of July 7, 2023 establishes that May 9 and 10 will be non-business days for document filing purposes. Therefore, notaries will receive the proof of entry of the document in the registry immediately, but the filing entry will not reach us until the following working day. In the first few weeks it may happen that, due to technological integration issues, some registries do not request all the data that must accompany the document presented. This will not affect the validity of the filing, which will be made with the minimum data submitted.

In the next few days, Ancert will send the corresponding manuals to your notary's office and an online training session will be held, of which you will be promptly informed.

Right of first refusal in real estate transactions of large real estate holders in Catalonia
April 2024
Real estate and mortgage

Attached (HERE) the Catalan Decree Law 6/2024, of April 24, on urgent housing measures, which recognizes a right of first refusal in favor of the Generalitat in the transfer of any housing located in an area declared to be a tight residential market owned by a large holder legal entity that is registered in the registry of large holders of housing. This right of first refusal affects the first and subsequent transfers of the dwellings.

As of today, this Register of large holders does not yet exist (as stated in the note of the Notarial Association of Catalonia, which is attached HERE), so that, when it comes into operation (of which due notice will be given), this limitation must be taken into account when formalizing this type of real estate sale and purchase transactions.

Mortgage loan to a commercial company with a guarantor, a natural person who is the administrator of said company. LCI consumer or not?
March 2024
Real estate and mortgage

Attached (HERE) DGSJFP Resolution of February 5, 2024 (BOE of March 8, 2024), in which the DG resolves a case in which a mortgage loan is formalized in favor of a company, with a natural person who is also a director of the company as guarantor.

The DG resolves that when the individual guarantor of a business loan is a director of the company, attorney-in-fact, or partner, that individual has a functional link with the company that excludes him from having the status of consumer and, therefore, determines the non-application of the precautionary measures of the LCI.

For an ob rem connection to be effective against third parties, it must be expressly stated in the title deed and in the registration entry in the land registry or be the result of a legal provision, but such connection may never be tacitly interpreted.
March 2024
Real estate and mortgage

Attached (HERE) Resolution DGSJFP of January 29, 2024 (BOE of March 8, 2024), in which the DG resolves a case in which the sale of an undivided partition of 1/49 of a registered property consisting of commercial premises, which gave the right to exclusive use and enjoyment of a parking space, is formalized by means of a deed of sale. In the Registry and in the simple informative note it was registered that "the mentioned parking spaces will be considered as an accessory element for the service of the house and consequently they are expressly obliged not to transfer the acquired parking space but jointly with the house corresponding to each one of them". The Registrar denied the registration, considering that only the parking space can be sold together with the dw elling in question.

The DG, aligning itself with the Notary, revokes the qualification note and allows the sale, arguing that in this case we are dealing with a merely obligatory agreement, and not an ob rem linkage, since this requires that it be duly formalized and expressly recorded as such.

It is mandatory to include the foreigner's identification number in any document with tax implications, even in an inheritance waiver, since it determines who will be the recipients of the assets of the estate in the inheritance partition.
March 2024
Prosecutor

Attached (HERE) Resolution DGSJFP of February 6, 2024 (BOE of March 8, 2024), in which the DG resolves that in the renunciations of inheritance where foreigners intervene, it is also necessary to state the Foreigner Identification Number of the renouncing party, since it is an act with tax transcendence, for which, it is required by law (arts. 254.2 LH, 23 LN and 156.5 RN).

Novation of a mortgage loan on the family's primary residence. the consent of the other spouse is not required when neither the principal is increased nor the mortgage liability is increased.
March 2024
Real estate and mortgage

Attached (HERE) DGSJFP Resolution of January 30, 2024 (BOE of March 8, 2024), in which the DG resolves that if a mortgage novation that encumbers the habitual residence of the family is formalized by one of the spouses, the consent of the other spouse is not necessary, if in said novation the capital is not increased nor the mortgage liability of the encumbered property is increased.

Mortgage novation. It is necessary in any case to express the applicable differential for the calculation of the financial loss.
March 2024
Real estate and mortgage

Attached (HERE) DGSJFP Resolution of February 29, 2024 (BOE of March 20, 2024), in which the DG resolves that, in order to be able to calculate the financial loss, it is necessary to express the differential applicable to the same, as this must be stated in the registration so that its quantification, if applicable, can be carried out correctly.

Bankrupt company in liquidation. It is not possible to register the appointment of a sole administrator
March 2024
Mercantil

Attached (HERE) DGSJFP Resolution of February 19, 2024 (BOE of March 19, 2024), in which the DG resolves that, in the case of a company in insolvency proceedings and already in the liquidation phase, it is not possible to appoint and register a new administrator, since the company liquidation operations are the competence of the company's liquidators and cannot be carried out by the company administrators who, as a consequence of the state of dissolution, are de jure terminated.

It is possible to cancel the entries in the Mercantile Register of a company even if there are debts, provided that it is stated in the deed of liquidation of the company and in the liquidators' certificate that there are no assets to satisfy the creditors.
March 2024
Mercantil

Attached (HERE) Resolution DGSJFP of February 5, 2024 (BOE of March 8, 2024), in which the DG resolves a case in which a company, by means of the corresponding resolution of the General Meeting, agrees the dissolution and extinction of the same, and in the corresponding deed the Mercantile Registry is requested to cancel the company's registry entries. In said deed it is stated that the company has no assets whatsoever and that, likewise, it only has one creditor (the AEAT), whose credit cannot be satisfied due to the absence of active mass.

The Registrar refuses the registration alleging that, in accordance with art. 395 LSC, the deed of extinction of the company must contain the declaration of the liquidators that the creditors have been paid or that their credits have been consigned.

The liquidator of the SL filed an appeal against this classification, and the DG, aligning itself with the latter, considers that, in effect, when there are no assets to liquidate, even if there are creditors, in the strictly registry sphere there is no rule that makes the cancellation of the registry entries of a capital company that lacks corporate assets subject to the prior declaration of insolvency. Therefore, even if there are creditors, since there is nothing to pay them, the request for cancellation of the registry entries must be admitted, even if the company has not previously declared bankruptcy.

Purchase and sale of real estate with the buyer represented by an English power of attorney. The original of the power of attorney is sufficient
March 2024
Real estate and mortgage

Attached (HERE) DGSJFP Resolution of February 21, 2024 (BOE of March 19, 2024), in which the DG resolves that in the case of UK powers of attorney, by its very nature, the judgment of sufficiency of the Notary is properly made when the original document signed by the principal is exhibited before him/her, and not in the form of an authentic copy.

WebiNots successions. Interesting issues to take into account on a daily basis.
February 2024
Inheritance and donations

The following are two interesting issues, analyzed in the last WebiNots of the Association of Notaries of Catalonia, in matters of inheritance:

WILL AND NOTARIAL CAPACITY TRIAL:

Two rulings of the Supreme Court of Justice are analyzed where the validity of two wills granted by elderly people (over 80 years old) is questioned.Extreme caution with wills of elderly people (over 80 years old), which, taking into account the population pyramid, will be more and more common. At the slightest doubt about the testator's capacity, there are several options to reinforce the judgment of capacity:

  • Prior record of evidence that the person is of sound mind (medical report).
  • Make a recording of the person with an interview and deposit it in a previous record.
  • Extreme cases: require the presence of 2 physicians.

DONATIONS AND IMPUTATION TO THE ESTATE:

In accordance with the Civil Code of Catalonia (art. 451-8 CCCat), "donations between living persons granted by the deceased with an express agreement of imputation or made in payment or on account of the legitimate are imputable to the legitimate. The imputable nature of the donation must be expressly stated at the time it is granted and cannot be imposed subsequently by acts between living persons or by cause of death.

It is important to remember this to the clients when the donation is formalized, because it can only be done at that moment, not a posteriori!(as it happens in the case analyzed in the seminar, where after the donation, the relationship between father and son deteriorates, and the father (donor), in will, indicates that this past donation is imputable to the legitimate, but this is no longer possible, and this is what the TSJ declares in the sentence of the specific case).

Acquisition of real estate by a person married in community of property (common law). Forms of instrumentation and accreditation
February 2024
Real estate and mortgage

Attached (HERE) Resolution DGSJFP of January 15, 2024 (BOE of February 22, 2024), in which the DG, resolves a case related to a purchase of a property, with privative character, of a married person in regime of community property of common law.

Interesting Resolution to remember the ways in which this acquisition can be produced with privative character, that is to say:

  • Undoubtedly justifying the privative nature of the property (by means of public documentary evidence).
  • Confession of privativity of the other spouse (which subjects the acquisition to the special regime of art. 1324 Cc and 95.4 of the Mortgage Regulation).
  • Celebration between the spouses of a legal business of attribution of privative character (where the onerous or gratuitous cause of such business is clearly expressed).
Option to purchase and prohibition of commissory agreement. It is not possible to formalize a purchase option on a property in guarantee of previous debts between the parties.
February 2024
Real estate and mortgage

Attached (HERE) Resolution DGSJFP of January 9, 2024 (BOE of February 21, 2024), in which the DG resolves a case in which the Land Registry refuses the registration of a right of purchase option on a property, as it incurs in the prohibition of the commissory agreement (as there are previous financial relations between grantor and optionor, that is, previous debts, which are embodied in a protocol prior to the purchase option).

The DG, aligning itself with the Registrar, considers that, in effect, it is not possible to use the purchase option business for a purpose that is foreign to it, that is, to operate as a guarantee, so that it is not admissible that, under the appearance of a purchase option contract, a seizure is hidden that allows the option holder (creditor of a debt), to become owner of the property offered as guarantee (to settle that debt), and all this, without the requirements and precautions proper to the procedural execution.

New construction and power of segregation of portions of a property for parking and storage rooms by the developer. Interpretation of statutory clause
February 2024
Real estate and mortgage

Attached (HERE) DGSJFP Resolution of December 19, 2023 (BOE of February 16, 2024), in which the DG resolves a case in which the developer of a new building formalizes in a deed a segregation of an undivided participation that belongs to him, in a semi-basement floor premises intended for garage / storage rooms, to create three independent registry properties, that is, two parking spaces and a storage room, in order to proceed with its sale to final buyers.

The Registrar refuses the registration because, in view of the clause in the bylaws of the horizontal division that empowers the developer to carry out such segregations, it is noted that the same clause establishes that such power may only be used "before proceeding with the sale of the aforementioned storage rooms", considering the Registrar that since the developer has already started to sell other storage rooms, this clause cannot be applied, so that the consent of all the registered owners of the remaining undivided shares already sold is necessary.

The DG, aligning itself with the Notary, revokes the qualification note, considering that, in this case, it is necessary to interpret the statutory clause in a "logical, finalist and contextual" way, that is, allowing such modifications, even if the sale of other storage rooms has already started, as long as such subsequent modifications only affect undivided participations belonging to the developer company.

Significant developments in foreign investments
February 2024
Other miscellaneous

Attached (HERE)Informative Circular 1/2024, of the General Council of Notaries, on Foreign Investments. It details the novelties introduced by Order HFP/115/2023, of February 9, which determines the countries and territories, as well as the detrimental tax regimes, which are considered as non-cooperative jurisdictions (HERE), which came into force on February 1, 2024.

This order (which implements Royal Decree 571/2023, referred to in a previous Newsletter) sets out the forms for the processing and declaration of foreign investments in Spain and Spanish investments abroad. As a reminder, it should be pointed out that said regulation establishes, depending on the case, a declaration or authorization regime (in the case of the declaration, its absence does not affect the validity of the operation, while, in the case of authorization, its absence does affect its validity). In the attached Circular, the specific cases in which the declaration or authorization is required are detailed.

Procedure to take into account in operations where prior declaration is required:

  1. The foreign investor who is going to formalize the transaction before a notary must, prior to the signing, complete, under his sole responsibility, the corresponding declaration in AFORIX(see attached HERE manual with a summary of the procedure to be carried out by the non-resident holder).
  2. If the grantor has filled in the corresponding form and provides the Notary's office, at the time of signing, the corresponding electronic files, the Notary's office must check that the essential data of the electronic file delivered coincide with those of the deed or policy to be signed (HERE a manual with the procedure to be followed at the Notary's Office is attached). Once this verification has been carried out, the form must be printed and incorporated into the deed, so that, once the deed has been signed, the Notary must send the information provided, through the notary's electronic office, to the General Council of Notaries, who in turn will send it to the Investment Registry.
  3. If the grantor does not deliver the file at the moment of signature, the Notary will leave record of it in the deed, with the opportune warnings. If the file is provided later, the Notary will record it by means of diligence, proceeding to carry out the same steps described above.
  4. Also attached are models of external investment clauses to be included in the deeds, as the case may be (HERE).

Procedure to take into account in operations where express authorization is required:

In the attached circular the operations subject to this express authorization are detailed(for example, investments of residents in non-EU countries that imply a 10% or more of a Spanish company, if the object of the investment is, among others, critical infrastructures, critical technologies, energy supplies, sectors of access to sensitive information, or means of communication) In these cases, the Notary is obliged to inform the applicants of the need to obtain this express authorization, denying the authorization of the public document until the same is not obtained.

In Catalan inheritance agreements, provisions may be made in favor of third parties not directly involved in the agreement.
February 2024
Inheritance and donations

Attached (HERE) Resolution JUS/47/2024 of the Direcció General de Dret, Entitats Jurídiques i Mediació, of January 3 (DOGC 19/01/2024), in which the DG resolves an appeal filed against the refusal of a Registrar to register a succession agreement formalized by a mother (who has 4 children) and three of her children, in which dispositions are made in favor of the grantors, but also in favor of a third party who does not participate directly in the agreement (that fourth child).

The DG, aligning itself with the appellant, revokes the qualification note, stating that, in accordance with the second paragraph of art. 431-1 of the CCCat, the Catalan succession agreements admit dispositions between the grantors and, also, in favor of third parties who do not participate directly in their granting.

List of legal aid support entities. Information of interest for people who may need it
February 2024
Family

Attached (HERE), a list of entities and institutions that can provide assistance to people who require it for the exercise of their legal capacity under equal conditions (elderly people with cognitive impairment, disabled people, etc.), provided by the General Directorate of Personal Autonomy and Disability of the Generalitat de Catalunya to the Notarial Association of Catalonia. To take it into account if we attend any client who requires this kind of assistance or may need it in the future.

Modification of the code of good banking practices in mortgage novations
January 2024
Real estate and mortgage

Attached (HERE) Resolution of December 27, 2023, of the Secretary of State for Economy, which modifies the Code of Good Banking Practices, for debtors with difficulties, broadening the spectrum of potential beneficiaries of these measures in the case of mortgage novations. Specifically, fundamentally:

  • The income limit of the family unit to be eligible for the Code is increased to 4.5 times the annual IPREM ( in specific cases it can reach 5.5 times).
  • It is possible to request measures to extend the term up to 7 years and to fix the installment for 12 months, independently or jointly.
CV + PH of "habitual residence" in Catalonia by one of the spouses. The consent of the other spouse is required, as the theory of complex legal business does not apply in Catalonia.
January 2024
Real estate and mortgage

Attached (HERE) Resolution JUS/4208/2023 of the Direcció General de Dret, Entitats Jurídiques i Mediació, of December 12 (DOGC 20/12/2023), in which the DG, for doctrinal purposes, resolves a case where a married person (of Catalan civil status), alone carries out the classic CV + PH of a property to be used as "habitual residence", formalizing the 2 deeds, that is, without the consent of the other spouse.

The DG, aligning itself with the Registrar, considers that in Catalonia the theory of the complex legal business is not applicable, based on articles 569-31 and 231-9.2 CCCat, so that the purchase of the family home and the constitution of a mortgage on this home immediately afterwards (to guarantee the loan that makes the acquisition possible), are two independent legal businesses, so that they must meet the respective legal requirements, that is, in the case of the PH, the consent of the cohabiting spouse of the mortgagor.

Links of interest on the intranet of the notary association of Catalonia
January 2024
Other miscellaneous

Attached (HERE) informative note from the Notarial Association of Catalonia, where links of interest for the day-to-day preparation of certain real estate transactions are recalled. Specifically:

  • Energy efficiency certificates: Search engine to locate the technical information of the different energy efficiency certificates of buildings or dwellings included in the official registry of the Generalitat de Catalunya.
  • V.P.O.: Consultation of the maximum sale and rental prices of subsidized housing.
  • Registry of urban planning of Catalonia: Consultation tool for current urban planning, urban planning agreements and consolidated urban plots.
New developments in mortgage matters in RDL 8/2023
January 2024
Real estate and mortgage

The Royal Decree 8/2023 brings as the most relevant novelties regarding the protection of mortgage debtors, the following:

  • The total or partial early repayment commissions for variable interest mortgage loans are eliminated during 2024.
  • Commissions for the modification of conditions to change from a variable to a fixed rate are also eliminated. Nor may this fee be charged when the modification consists of changing from a variable rate to a mixed rate, provided that the fixed period is at least 3 years.
  • No commissions may be charged for changing the entity when the variable rate is replaced by a fixed rate or by a mixed rate with the aforementioned requirements.
Dissolution and liquidation of SL. In any case, it is necessary to identify the partners and their share of the capital stock.
January 2024
Mercantil

Attached (HERE) DGSJFP Resolution of September 26, 2023 (BOE of November 1, 2023), in which the DG, aligning itself with the Mercantile Registrar, determines that in the dissolution and liquidation of an SL, even if the share capital to be distributed is 0, it is necessary to identify the partners and their share of participation.

Modification of horizontal property and real right of mortgage. Summary of when the consent of the mortgagee is required.
January 2024
Real estate and mortgage

Attached (HERE) Resolution DGSJFP of November 29, 2023 (BOE of December 28, 2023), in which the DG resolves a case of a deed of modification of horizontal property, with new configuration of independent elements (of which several mortgaged properties were part). The Registrar denies the registration due to the lack of consent of the mortgagee.

In this case, the DG, with an interesting Resolution, makes a very didactic summary on the registration of acts that may alter the objective element of the mortgage guarantee and in which cases the intervention of the mortgagee is, or is not, necessary.

Finally, in the specific case, it determines that such consent is not necessary, since there is a correspondence between the original properties and those resulting from the reorganization of the horizontal property.

Motor vehicles and death of the owner. Formalities to be taken into account
January 2024
Inheritance and donations

Attached (HERE) Instruction of the DGT on the procedures to be carried out when the owner of a motor vehicle dies. Specifically, it details that the heirs, within a maximum period of 90 days, can choose between two options:

  • Or identify a provisional custodian, who will be the owner of the vehicle and responsible for everything related to it. A specific procedure must be carried out to communicate this custody within 90 days of the death. It is provisional and the vehicle cannot be sold. It can only be transferred to the custodian himself or an heir.
  • Or make the definitive transfer to one of the heirs, for which, once the vehicle is awarded to one of the heirs, he/she will have 90 days to make the definitive transfer to his/her name. Said holder becomes the owner, with all rights and obligations.
Registration of a declaration of "old" new construction. If this route is chosen, it must be proven that the time required by law has elapsed.
January 2024
Real estate and mortgage

Attached (HERE) Resolution DGSJFP of November 29, 2023 (BOE of December 28, 2023), in which the DG resolves a case of a declaration of "old" new work, where a cadastral certification is provided that proves that the work is from 2015 (so that the 10 years required by the regional regulations to be able to avail of this route have not elapsed), together with a document issued by the Town Hall of the town where the property is located, stating that the conditions established in the license have been fulfilled and that there is no objection to the granting of the first occupancy license.

The DG, aligning itself with the Registrar, determines that if one intends to register a declaration of new construction, one must choose either the"ordinary" route of declaration of completed new construction (more demanding at the documentary level, since a municipal license, insurance, descriptive certification by a competent technician, etc., will be required) or the route of the declaration of new construction "by age", so that, if one chooses the latter, it is necessary to prove that the time required by law has elapsed for this purpose, regardless of the time required by the law.) or the route of the declaration of new construction "by seniority", so that, if the latter is chosen, it is necessary to prove that the time required by law has elapsed, regardless of whether a document is provided that would correspond in the case of having opted for the declaration of new construction of the "ordinary route".

New developments in the incorporation of start-up companies
January 2024
Mercantil

Brief review of Law 28/2022, on the promotion of the start-up ecosystem (HERE), which promotes the creation of start-ups in Spain by establishing tax incentives and simplifying the procedures for their incorporation:

  • A reduced corporate income tax rate of 15% is provided for.
  • In order to attract foreign investment, the foreign investor is only required to have a Spanish NIF, but not a NIE.
  • The deadline for the registration of its incorporation is 5 working days and if standard bylaws are used, six hours.
  • Notary fees in the case of incorporation via CIRCE, with standard bylaws and with capital of less than €3,100, will be €60.
  • The concept of an emerging company is included in articles 3 and 4 of the aforementioned law.

Practical Legal Notes - June 2024

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Practical Legal Notes - May 2024

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Practical Legal Notes - April 2024

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Practical Legal Notes - March 2024

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Practical Legal Notes - February 2024

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Practical Legal Notes - January 2024

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Our practical compilation 2023

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