Notarial blog and other practical content

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of February 4, 2024 (BOE of February 21, 2025), in which the General Directorate resolves a case related to a mortgage loan deed granted by a commercial company that is professionally dedicated to it, which is not registered in the special Registry created by Law 2/2009, of March 31, at the National Institute of Consumption.

Having qualified the deed for this reason, the DG confirms the defect, ruling that any company engaged in the granting of loans in a professional manner in favor of consumers, in addition to its registration in the Registry of Lenders of the Bank of Spain, must be registered in the special Registry created by Law 2/2009, of March 31, at the National Institute of Consumer Affairs (or, if applicable, duly registered in the Registry of the Autonomous Community where it has its registered office, together with the corresponding notification to the Registry of the National Institute of Consumer Affairs).

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of December 16, 2024 (BOE of February 7, 2025), in which the General Directorate resolves a case related to a deed of merger of two SL, being the absorbed company a SLU wholly owned by the absorbing one, in which, no report of administrators or independent expert is provided, since it is stated that the absorbed SLU has no employees and therefore the merger has no effect on employment.

Once it was submitted for registration, the Commercial Registrar qualified it negatively, alleging that it is also necessary to make available to the employees the report of the administrative body referred to in Article 5 of RD-Law 5/2023.

Upon appeal of the aforementioned classification, the DG revoked the same, ruling that, in view of the specific circumstances of the case (i.e., that the absorbed company has no employees, that it is wholly owned by the absorbing company and that it is stated that the merger has no effect on the absorbing company's employment), in this case it is not necessary to provide the report in question.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of February 6, 2024 (BOE of February 21, 2025), in which the General Directorate resolves a case related to a deed of modification of horizontal property regime, by means of which, a new statutory clause is introduced in the statutes of the community of owners to limit the use of the houses to tourist offer or any other way of commercialization with tourist accommodation purposes, being approved this agreement by a majority of 3/5 parts of the community.

Once presented for registration in the Registry, the deed is negatively qualified, since the Registrar considers that unanimity is necessary to adopt the agreement, since the exception of the LPH that allows limiting the use of tourist dwellings regulated in the tourist sectorial regulations, without the unanimity rule, is not extensible to agreements related to other types of generic tourist uses, such as the use of lodging or tourist dwellings in a regime different from the specific one derived from the tourist sectorial regulations (that is, for example, vacation rentals).

The DG, confirming the criterion of the Registrar, reminds us that the current LPH allows to limit by a majority of 3/5 the exercise of tourist activities in the terms established in the tourist sectorial regulations, but not to the tourist use in general when it is not subject to a specific regime of sectorial regulations (such as lodging, or vacation), in which case, the unanimity of all the co-owners will be required to establish such limitation.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of December 30, 2024 (BOE of February 6, 2025), in which the General Directorate resolves a case related to a mortgage loan deed between a commercial company and an employee, which is formalized without being subject to the provisions and guarantees of the LCI, since in said deed it is alleged that the company's corporate purpose is not the habitual granting of loans and that, also, the loan is granted under more advantageous conditions than those of the market given the relationship of trust that exists with the debtor due to the fact that he is an employee of the company.

The Land Registrar refuses the registration, which brings the case to the DG, which, reiterating its doctrine, reminds us that, in this kind of operations, if the PH is granted by a legal entity that intervenes with certain regularity in the financial market, in favor of a natural person, who has the condition of consumer, and which is secured by a mortgage on a dwelling, the LCI will apply, unless it is a loan granted by an employer to its employee (which must be evidenced by documents), on an ancillary basis, whose Annual Percentage Rate is lower than that of the market, and which is not offered to the general public.

Finally, as in the specific case, the condition of employee has not been documented and the APR of the transaction has not been detailed, the Registrar's qualification note is confirmed.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of February 4, 2024 (BOE of February 21, 2025), in which the General Directorate resolves a case related to a deed of sale, where a bank sells a house of its property to a third party. The controversy of the case arises from the fact that the bank, in the VC, appears represented by an agency, by virtue of a power of attorney in which it is established that, for this case of sales, a specific authorization for the sale must be provided (in a private document subscribed by representatives of the bank), with their signatures notarized. In the specific case, this authorization of the bank is presented, the signatures of which are legitimated by the Notary as they coincide with others that were recorded in their indicator book.

Once the deed was presented for registration, the Registrar refused the registration, alleging that the notarization of the signature by the Notary was null and void, since the same, being a declaration of will, should be made in the presence of the Notary (second paragraph of art. 259 NR).

After examining the case, the DG disagrees with the opinion of the Registrar and revokes the qualification note, considering that the agility in the legal traffic must prevail, as well as the freedom of choice of the internal control mechanisms of the appointing entity and its own acts in many similar cases, so that, in view of this, it is appropriate to accept as valid the notarization of signatures performed by the Notary, that is, by comparison, without it being necessary for the notarization to be performed by signature in the presence of the Notary.

Attached (HERE) link to the Sentence of the Provincial Court of Valencia number 260/2024, of November 19, where a curious case is solved, related to the request of presence of a Notary Public to draw up the notarial minutes of the Meeting, analyzing who has legitimacy to carry out such requirement.

In the specific case, we are dealing with a company involved in a corporate conflict, where the request to the Notary is made by the Chairman of the Board of Directors, and the Court resolved that, in fact, this competence corresponds to the Board of Directors as a collegiate body, as established in art. 203 LSC ("the administrators").

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of December 30, 2024 (BOE of February 6, 2025), in which the General Directorate resolves a case related to a mortgage loan deed between two mercantile companies, in which, as domicile of the debtor company, only an Email is detailed, and not a physical address for the purpose of notifications and summons.

Initially, the Property Registrar denied the registration for this reason, being this criterion confirmed by the General Directorate, thus resolving that, in accordance with the current LEC, in the case of legal entities, both a physical address and an e-mail address are mandatory.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of February 5, 2024 (BOE of February 21, 2025), in which the General Directorate resolves a case related to a deed of sale in which an undivided participation of 10.27% of a property is sold, which gives the right to the exclusive use of a storage room. In the CV deed it is detailed that the selling party has distributed the premises in 10 independent storage rooms with the purpose of its transmission by shares, counting for this purpose with the corresponding municipal permits.

Once the deed is presented for registration, it is negatively qualified by the Registrar, alleging that we are dealing with a division of the property, for which the corresponding agreement of the community of owners is required, since it is a property subject to the horizontal property regime.

The corresponding appeal was filed before the DG, which revoked the qualification note, considering that in this case we are not dealing with a division of the property (since neither its extension, boundaries, quotas, constitutive title nor the organic functioning of the community are modified), but with a community of a functional nature by reason of destination in which new co-owners are simply incorporated to the community of neighbors, so that, not being prohibited by the bylaws of the community, the agreement of the community required by the Registrar is not required.

Among the many novelties brought to us by Organic Law 1/2025, of January 2, on measures for the efficiency of the Public Justice Service (HERE), in commercial matters it is interesting to highlight an amendment to art. 365.3 LSC, by virtue of which "The administrators will not be obliged to call a general meeting to adopt the resolution of dissolution when they have duly requested the declaration of insolvency of the company or informed the competent court of the existence of negotiations with creditors to reach a plan for the restructuring of assets, liabilities or both. The meeting must be called within two months after the effects of such communication cease to be in force".

With this reform, a period of two months is granted to convene the AGM (i.e., more time to manage the business crisis situation), from the time the effects of the communication to the court cease to be in force as negotiations with creditors are initiated to reach a restructuring plan, since to date, with the previous wording, the administrators had to convene the meeting immediately after the failure of negotiations with creditors, in the event of a cause for dissolution.

It is linked (HERE) with the Decree law 1/2025, of 28th of January, of urgent measures in the matter of containment of yields, which introduces important novelties in the matter of housing leases for the Catalan area. Specifically:

• New obligations are introduced regarding the advertising of rental property advertisements (such as details of the last rent of the property rented during the last 5 years, the purpose of the contract, or the status of the owner of the property as a major tenant).
• Very serious penalties (from 90,000 to 900,000 euros) are introduced for the following conducts:
  
  • Establishing a rent that exceeds more than the maximum 30% allowed in a lease subject to a price containment regime.
  • Failure to state the purpose (or stating a simulated/false one) in the lease.
  • Charge real estate management or contract formalization costs to the lessee.
• Prosecution of fraud in housing intended for permanent rental that masquerades as "seasonal" rental contracts, with the imposition of heavy penalties.

Reference is also made to Decree Law 2/2025 (HERE which, in Catalonia, establishes a new right of first refusal in favor of the administration in the case of transfers of dwellings located in areas with a stressed residential market, when the seller is a large holder legal entity ( it should be noted that until the Registry of large holders is set up, it is obligatory that , when the seller is a legal entity, a registry certificate must be included in the deed of sale , detailing the details of the property in question, the regulation obliges that, when the seller is a legal entity, a registry certification must be included in the deed of sale, detailing the number of dwellings owned, which must be attested in the title deed ).

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of November 28, 2024 (BOE of December 25, 2024), in which the General Directorate resolves a case related to the request for registration of the appointment of a voluntary auditor by an SL.

Company immersed in a corporate conflict, in which one of the minority shareholders has requested the appointment of an auditor, which is pending resolution by the DG. Subsequently, it is the company that requests the registration of the appointment of a voluntary auditor, which is initially rejected by the Mercantile Registrar, as this request was previously made by the minority shareholder.

Upon appeal, the DG revoked the qualification note with regard to this circumstance, arguing that its most recent doctrine (see Resolutions of April 18 and 20, 2024), by virtue of a principle of effectiveness, if the voluntary appointment of an auditor by the company is accredited, even if it is subsequent to the request of the minority shareholder, the latter must prevail (even if the request of the minority shareholder is prior), and even more so in this case, where the request of the minority shareholder has not yet been resolved.

Attached (HERE) link to a very interesting training session, in video format, organized by the Notary Foundation, where an analysis and study of the essential Resolutions of 2024 of the General Directorate of Legal Security and Public Faith, in various matters of civil, commercial and mortgage law, focusing on practical aspects of drafting deeds.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of November 29, 2024 (BOE of December 25, 2024), in which the General Directorate resolves a case related to a deed of sale of a property, formalized in 2008, which is intended to be registered in 2024, when the selling company has the NIF revoked, which causes the corresponding negative qualification of the Registrar.

The representative of the company filed an appeal against such qualification, alleging that, in essence, when the deed was granted, the company had the current Tax ID number, and the rule that regulates the impossibility of registering transfers of companies with revoked Tax ID numbers was not yet in force, so that its application now means the retroactive application of an unfavorable rule, prohibited by the Constitution.

The DG, in this case, reiterates its pacific criterion, considering that the prohibition of access to documents corresponding to companies with revoked NIF is fully valid and applicable to documents authorized prior to the entry into force of the rule, since the access to the Registry is sought now, with the rule already in force.

It is reported that Royal Decree-Law 9/2024 (HERE you can consult it), known as "Omnibus Decree" has not been validated by the Congress, so that the provision has been repealed. As a consequence, in the tax area, it is necessary to highlight the following measures that areno longer in effect:

• IRPF and obligation to declare: Raising to €2,500 (from €1,500) the amount that can be received from second and subsequent payers so that the maximum annual limit that establishes the obligation to declare income from work is €22,000.
• IRPF: Extension to 2025 of tax deductions for energy improvement works in housing and for the acquisition of "plug-in" and fuel cell electric vehicles and recharging points.
• Municipal capital gains tax (IIVTNU): Approval of new coefficients to be applied to the value of the land at the time of accrual, according to the period of generation of the increase in value. In practice, this meant an increase of up to more than 50% (see link HERE newspaper article on the matter).

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of November 29, 2024 (BOE of December 25, 2024), in which the General Directorate resolves a case related to a deed of unbindingobrem, to leave without effect a binding of certain parking spaces in relation to a multi-family building.

Once the deed was presented for registration, the Property Registrar denied it, alleging that in this case, it is necessary to prove the consent of the administration to such disassociation, since the linkingobrem has been configured as a special condition for the granting of the first occupancy license (classic urban planning regulations that require new buildings to have a parking space).

The DG confirms the criterion of the Registrar, being necessary to present the corresponding administrative document (such as the building permit) to prove that the administration does not put or did not put at the time any condition in this regard for the granting of the relevant administrative authorization.

Attached (HERE) link to Royal Decree 10/2025, of January 14, approving the National Classification of Economic Activities 2025 (CNAE-2025), applicable to new incorporations or changes of corporate purpose formulated as of January 16, 2025, i.e., its entry into force.

Regarding its practical application in the CIRCE environment, it has been informed that CIRCE, for the time being, cannot apply the new CNAE 2025 codes, as they are pending coordination and analysis with the AEAT, so for this type of companies they continue with the previous codification.

For the rest of the companies, the new codification must be recorded. Some commercial registries have requested the notary's offices to temporarily record both numbers, CNAE 2009 and CNAE 2025, due to the lack of adaptation of their computer systems.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of November 29, 2024 (BOE of December 25, 2024), in which the General Directorate resolves a case related to a deed of modification of corporate bylaws, in which a new article of the bylaws is introduced, related to an accessory benefit, by virtue of which it is established that all the partners are obliged to a non-remunerated accessory benefit consisting of the fulfillment of a Family Protocol that appears in a public deed (which is specifically identified), but without detailing its content.

Initially, the Commercial Registrar refused to register the clause in the articles of association on the grounds that the content of the ancillary service is not detailed, since it simply refers to the Family Protocol, which is neither registered nor deposited in the Commercial Registry.

After the corresponding appeal, the DG revoked the classification, determining that what is relevant in these cases is to publicize the existence of the Family Protocol, so that all present and future partners have the possibility of knowing of its existence and, if applicable, accessing its contents through the existing legal channels.

Attached (HERE) link to a fiscal flash related to the DGT Consultation V1822-24 (HERE can be consulted), in which the DGT resolves a consultation related to the settlement of life insurance, recalling that the receipt of amounts derived from the contracting of a life insurance policy, provided that the beneficiary is a person other than the policyholder, will be subject to Inheritance Tax, being its taxable base the amounts received for this concept (which will be accumulated to the other assets and inheritance rights), being the taxpayer the beneficiary of such amounts.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of November 19, 2024 (BOE of December 18, 2024), in which the General Directorate resolves a case related to a deed of acceptance and adjudication of inheritance, in which not all the heirs are present.

In this case, the DG resolves that, in effect, the non-concurrence of all the heirs breaks the principle that the partition of the inheritance must be carried out by all the co-heirs unanimously, so that it is necessary that in the partition all the called ones concur so that each inheritance right in abstract is converted into singular and concrete titles over the assets of the inheritance estate.

Attached (HERE) link to an interesting judgment of the Supreme Court, specifically, the STS 5882/2024, of November 20, in which the High Court confirms the validity and sufficiency of the simple informative note of the Land Registry as sufficient proof of ownership, thus allowing to reinforce the full probative value of these documents by what is required to the registry content, both in judicial and extrajudicial acts.

Thus, it is confirmed how any person with a right registered in the Land Registry can validly prove it to third parties by obtaining a simple registry note, at a cost of only 10 euros approximately.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of November 18, 2024 (BOE of December 18, 2024), in which the General Directorate resolves a case related to a deed of sale, in which the purchasing party is a civil society, initially formalized in a private document, and subsequently elevated to public (but without registration in the Commercial Registry), whose object is the exploitation of agricultural/livestock activity.

When presented for registration, the Property Registrar denied the registration, alleging that when the civil society has a mercantile purpose, it is essential that, in order to be able to register title to real estate in its favor in the property registry, it must be previously registered in the mercantile registry, considering the Registrar that, in the present case, the purpose of the society is the agricultural/livestock exploitation, that is to say, a clear mercantile activity.

Upon appeal, the DG revoked the qualification note, considering that the purchasing company is a civil company formalized in a public deed, duly constituted, with a non-commercial purpose (art. 326 of the Commercial Code), so that the requested registration should be made in the name of the purchasing civil company.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of November 4, 2024 (BOE of November 22, 2024), in which the General Directorate resolves a case related to the registration of a judicial sentence where a purchase-sale is declared resolved.

The assumption is based on a purchase and sale (where the buyer, in order to finance the purchase, requests a mortgage loan, which is registered at the time of formalizing the purchase and sale). Once the purchase-sale is formalized, disagreements arise between the parties, which end up with a judicial conflict. This judicial procedure concludes by declaring the purchase-sale resolved, that is to say, leaving it without effect, and the parties must return to each other the reciprocal benefits (that is to say, the property to the seller and the price paid to the buyer).

Once this judgment has been presented for registration in the Land Registry, the interesting position of the mortgagee arises, who has legitimately registered his right before this whole dispute arises and is resolved.

At this point, the DG, aligning itself with the criterion of the Registrar, resolves that, in these cases, in order to be able to register the resolution of the sale and purchase (that is, that the house ceases to be in the name of the "buyer" and returns to be registered in the name of the "seller"), it will be necessary, first of all, to prove the deposit of the amounts owed and, above all, to prove the consent of the creditor bank (i.e., the bank holding the mortgage right in rem will have to give its consent ), the bank holder of the real right of mortgage will have to consent to it), since not having the claim noted at the time of the appearance of the mortgage holder, by imperative mandate of the Mortgage Law (articles 20, 37, 40 and 82) the cancellation or modification of the entries of subsequent holders is prevented without their express or tacit, voluntary or forced consent.

Therefore, be very careful in these litigious situations, because beyond the judicial victory, it will be necessary to negotiate with the creditor bank in order to get the debt cancelled and to get the bank to agree to the registration of the resolution of the purchase-sale, otherwise, it will not be possible, and the judicial victory will be blurred.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of November 6, 2024 (BOE of November 22, 2024), in which the General Directorate resolves a case related to a deed of sale, in which the selling party is a company. In the deed of sale there is no statement of the selling company about the non-essential nature of the transferred asset and there is no agreement of the General Meeting of Shareholders.

The Property Registrar denied the registration, considering that a resolution of the General Shareholders' Meeting (which was not provided) is required for the acquisition or disposal of a corporate asset that may be considered essential.

After the corresponding appeal was filed, the DG resolved the same by revoking the qualification note, thus reiterating its doctrine according to which there is no obligation to provide a certificate or to make an express statement by the administrator that the asset object of the documented business is not essential, although the statement contained in the deed on the non-essential nature of such asset improves the position of the counterparty as regards its duty of diligence and assessment of the serious fault. However, the omission of this express manifestation is not in itself a defect that prevents registration.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of September 25, 2024 (BOE of November 7, 2024), in which the General Directorate solves a case related to a deed of formalization of transfer of mortgage guarantees, in which, the most interesting, is everything related to the outline of the power of attorney that empowers the representative of a foreign company not registered.

The case deals specifically with a deed of assignment of mortgage guarantees, where the assignee company (Irish and not registered in Spain), is represented in the act by an attorney-in-fact. The authorizing Notary, when reviewing the special power of attorney, simply identifies it (with date and name of the authorizing Notary) and states that he considers it sufficient for the granting of the power of attorney.

Once presented for registration, the Registrar to whom the deed is presented considers that the summary of the power of attorney is insufficient, a criterion that is confirmed by the Directorate General, which, in its Resolution, determines that the powers of attorney of foreign companies, since they are not registered, are subject to the doctrine of the STS of June 1, 2021 for the unregistered powers of attorney of registered Spanish companies, Therefore, the authorizing notary must, under his responsibility, rigorously check the validity and validity of the power of attorney granted by said company and record that he has carried out such action, in such a way that the authentic document from which the representation is derived expresses the circumstances which, in the notary's opinion, justify the validity and validity of the power of attorney in the exercise of which the attorney-in-fact is acting.

Thus, in particular, in the judgment of sufficiency of the power of attorney, the identity of the grantor of the power of attorney, his personal circumstances, and whether or not he holds an organic position in the company must be stated.

In view of the many queries generated by this matter, that is, possible fees to be paid by bank customers when they want to amortize, in whole or in part, in advance, their mortgage loans, please find attached (HERE) the Resolution of December 2, 2024, of the Bank of Spain, which publishes the indexes and reference rates applicable for the calculation of the market value in the compensation for interest rate risk of mortgage loans, as well as for the calculation of the differential to be applied to obtain the market value of loans or credits that are cancelled early.

In this regard, it should be remembered that mortgages signed after December 9, 2007, in the event of early cancellation (total or partial), the financial institution, in addition to the compensation or cancellation fee, may charge an amount for interest rate risk compensation. In order to calculate the maximum limit to be charged, the mathematical formula regulated by the applicable legislation must be taken into account, for which the values published in this Resolution, which is updated monthly, must be taken into account.

In any case, if you wish to obtain more information about this calculation, HERE you can also access an article in our blog, which has been widely distributed, where you can find practical information on how to perform these calculations and check whether the bank is correctly applying the fees that may or may not be charged.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 9, 2024 (BOE of November 15, 2024), in which the General Directorate resolves a case related to a deed of sale of a property on which there is a prohibition of disposition that appears in a preventive annotation ordered by the Public Treasury, which is practiced after the deed of sale has been granted.

Specifically, it is a deed of sale granted on December 21, 2023, which was presented at the Registry on May 8, 2024. However, prior to this date, on April 12, 2024, a preventive annotation of prohibition of disposition ordered by the Treasury was made on the property subject to sale.

The DG, resolving the appeal filed, reiterates its doctrine denying the possibility of registering the sale, understanding that the preferential effectiveness of transfers prior to the prohibitions to dispose is not applicable in criminal or administrative proceedings, where the public order component of the precautionary measures adopted must prevail.

Attached (HERE) press summary of the STS 1917/2024, of December 5, in which the Chamber III of our High Court resolves that the 'mobile-home' require an urban planning license because they can be assimilated to a prefabricated house and not to a trailer.

Thus, for the Supreme Court, it is the urban planning regulations applicable in each case that legitimize the installation of mobile homes on a plot of land, as this is justified by an overriding reason of general interest such as the protection of the environment and the urban environment.

Attached (HERE) the Instruction for the verification of real estate values in the tax on capital transfers and documented legal acts and in the tax on inheritance and donations, which must be applied to the taxable events of the year 2025.

It is reminded that in transfers of real estate that have not been assigned a reference value or this cannot be certified by the General Directorate of Cadastre, the taxable base and, therefore, the value that must be included in the self-assessment, without prejudice to administrative verification, will be the greater of the following: the value declared by the interested parties, the price or agreed consideration or the market value.

In these transfers, the Administration has the power to verify that the value of the assets and rights declared in the self-assessment is not lower than the market value, for which purpose, the values stated in said Instruction will be taken as a reference.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 29, 2024 (BOE of November 22, 2024), in which the General Directorate resolves a case related to a deed of incorporation of an SL with a single shareholding of one euro of nominal value.

The Registrar refuses the registration, considering that the fact that the SL constituted has only one participation contravenes the principles of the SL and its normal development (considering that the LSC presumes a broader division of the capital stock).

After the corresponding appeal was filed, the DG aligned itself with the appellant Notary, revoking the qualification note, considering that, under the protection of the autonomy of the will of the founding partner, the incorporation of this SL of a single share with a nominal value of 1 euro is admissible, since there is no provision that prohibits it.

Attached (HERE) link to an interesting practical training session given by the Notary of Madrid Mr. Fernando Gomá, regarding notarial acts related to the digital world (WhatsApp acts, web pages, content in social networks, deposit of digital documents, etc.).

Practical session, in video format, very interesting, with notes to take into account when formalizing this kind of documents, where we can even find models of public document to use in these cases.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of September 18, 2024 (BOE of November 6, 2024), in which the General Directorate resolves a case related to a deed of sale, in which the selling company, when formalizing the deed of sale, has the NIF in force, but when it presents the document for registration in the Registry, this has been revoked.

The DG resolves that, indeed, in order to be able to register the transfer in the Land Registry, it is necessary that the NIF of the company is in force not only when the deed is formalized, but also when the access of the document to the registry is formalized.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of September 25, 2024 (BOE of November 7, 2024), in which the General Directorate resolves a case regarding the dismissal of a managing director of a municipal company, which seeks access to the Commercial Registry on the basis of a certification of board agreements issued by the Secretary of the City Council, with the approval of the Mayor.

The Mercantile Registrar denied the registration on considering that this act requires a public deed for its registration (arts. 94 and 95 RRM), this criterion being confirmed by the General Directorate in the appeal that is being resolved.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 22, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to a deedof pledge of a photovoltaic installation, which is initially rejected by the Registrar, considering that, in this case, it could only be registered as a chattel mortgage.

Upon appeal, the DG revoked the qualification note, considering that this photovoltaic installation is nothing more than apledgeable movable property, so that it is possible to register this pledge on a photovoltaic energy production installation duly registered in the corresponding Administrative Registry, in the form of anon-possessory pledge provided for in art. 682 LEC.

Interesting resolution applicable to financing operations of this type of assets or infrastructure.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 22, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to a deed of liquidation of a corporation. In this case, a minority shareholder had requested the appointment of an auditorto supervise the liquidation operations, which was duly registered in the Mercantile Registry.

Once the deed has been presented for registration, the Mercantile Registrar considers that it is necessary to include in said deed the intervention and consent of the comptroller to the liquidation operations, which is rejected by the General Directorate in the resolution of the appeal filed, since it considers that its function is limited to controlling that the actions of the liquidators are carried out within the legal and statutory rules relating to the liquidation process, making the shareholders aware of any actions of the liquidators that are contrary to the Law or the Articles of Association, so that in addition to the liabilities that the liquidators may have incurred, their removal may be requested under the terms of Article 380 of the Capital Companies Act. Thus, the liquidators can act without obtaining the approval of the auditors, since their function is to supervise, but notto approve the actions of the liquidators.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 22, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to a deed of cancellation ofa purchase option. The case is based on a registered purchase option deed, in which the purchaser has a period oftwo months to exercise the option, to be counted from the moment the grantor performs a series of actions (specifically, to pay some taxes and cancel some fiscal affections that encumbered the property).

The grantor complies with the conditions, and proceeds to notify the applicant by notary (by means of an official notice), but upon notification, the Notary, who goes to the registered office of the applicant company, finds an employee who "acknowledges that she is an employee of the requested company" and who also states that "she is not authorized to collect any request". In view of this refusal, the Notary Public considers the request to have been made, at which point the grantor considers that the 2-month period granted has begun to run.

Once this term has finally elapsed, the granting party grants this deed of cancellation of the purchase option that is now sought to be registered, which is rejected by the Registrar, since she considers that in order for this to be possible, the consent of the option holder is required and because, likewise, the notification of the act of summons has been made incorrectly, since in view of the refusal of the employee to collect the document, it would have been appropriate to send it byregistered mailwith acknowledgement of receipt, as established in art. 202 of the Commercial Registry.

The DG confirms the criterion of the Registrar, so that, in these cases, it will be necessary to take extreme precautions and, in the event of a refusal to collect the writ, to ensure the notification by sending it by registered mail with acknowledgment of receipt.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 21, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to a deed of amendment of the bylaws of a corporation, in which the article of its bylaws related to the remuneration of the board of directors is modified. In the new wording, it is determined that, in the case of the members of theboard of directors with executive functions, their remuneration will be determined by the General Meeting on the basis of oneor more of the concepts detailed in the statutory provision (a fixed allowance, per diems, variable remuneration, etc.).

The Mercantile Registrar refused the registration on the grounds that the provision infringes art. 217 LSC, since it does not determine the system of remuneration, but leaves the choice of one or more of those provided for in the bylaws to the discretion of the general meeting.

Upon filing the corresponding Appeal, the Directorate General revoked the qualification note, ruling that the clause in question does not leave the choice of one or more of those provided for in the bylaws for the directors to the discretion of the general meeting,Rather, it is limited to establishing only with respect to the remuneration foreseen for members of the board of directors to whom executive functions have been attributed, that the remuneration items to be received annually by these directors will be determined by the general meeting and will consist of one or several of those specified, which is accepted by the Board of Directors in accordance with the provisions of articles 217 and 249 of the Spanish Corporations Act (LSC).

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of September 2, 2024 (BOE of November 6, 2024), in which the General Directorate reminds us that, in the framework of a horizontal property, to achieve the modification of the constitutive title, the consent of the owners who were owners on the date of adoption of the agreement and, likewise, of those who are registered owners on the date on which said document must access the Land Registry is required.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 21, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to a deed of elevation to public deed of corporate resolutions, among which is the statutory clause of remuneration of the administrators. This clause provides for the possibility of receiving "a variable remuneration, according to indicators or general reference parameters", without specifying what these are.

The Mercantile Registrar denied the registration for this reason (under art. 217 LSC), a criterion that was confirmed by the DG, ruling that when the possibility of receiving variable remuneration is established, it is necessary toexpressly detailthe indicators or parameters that will make it possible to specify it, although they must be interpreted in a flexible manner.

It is recalled that in a few days, that is,at the end of December of this year, the term granted by Royal Decree-Law 19/2022, which established a Code of Good Practices to alleviate the rise in interest rates (which allows debtors with problems to pay their loans to obtain an extension of the repayment term of their loan, or a novation from variable to fixed rate, among other issues), will end.

For more details on the measures, their potential beneficiaries, and the necessary requirements, (HERE) we link an article from our blog that was published at the time, where all these issues are explained.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 17, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to anotarial actof general meeting, in which the shareholder owner of 25% of a SL requests the assistance of a notary at the next general meeting of the company. For this purpose, the request was made to a Notary Public in Vigo, who requested the assistance of another Notary Public, located in the town where the registered office of the SL in question is located, to carry out the corresponding request. However, when the deed is presented to the Mercantile Registry, there is no record of having received the reply from the notary's office requested to carry out the notification, whether or not the deed has been delivered.

The Commercial Registrar denies the requested registration, a criterion that is ultimately confirmed by the DG, since the minutes do not contain the reliable delivery of the notarized request to the company's administrators (to ensure that they have had knowledge of it), so that, in these cases, it is necessary to prove that the administrative body has received the notarized request where the shareholder requests the presence of a Notary Public at the company's general meeting.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 16, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to a deed of elevation of corporate resolutions, in which, among other issues, the unipersonality of an SL is declared. Once presented for registration, the same is negatively qualified by the Registrar, alleging that for the qualification and registration it is necessary to accredit the presentation of the document for the purpose of the liquidation of the ITPAJD (corporate operations modality).

After the corresponding appeal was filed by the authorizing Notary Public, the DG aligned itself with the latter, ruling that in the specific case of this casethe requirement of prior presentation at the ITP settlement office could be understood as notapplicable, since it does notappear from the document presentedthat there is any act subject to any of the three types of taxation regulated by the ITPAJD Law.

Attached (HERE) link to an article of the blog of the notary's office, where reference is made to the new moratoriumfor loans owned by those affected by the DANA.

Measure approved by Royal Decree-Law 6/2024 (HERE you can consult it) which provides for the establishment of a moratorium, applicable to mortgage loans and without mortgage guarantee, which are owned by persons affected by the DANA, of 3months of principal and interest, and 9 additional months of suspension of the repayment of the principal. For details of the measure, potential beneficiaries, requirements, application procedure, etc., please refer to the indicated blog article.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 29, 2024 (BOE of October 10, 2024), in which the General Directorate reminds us that, when a property is purchased by foreign married persons, the important thing is not to determine the specific matrimonial property regime, but its legal or conventional character, without the Registrar being able to demand more specificity in this respect (that is, the simple classic expression of "married according to the legal matrimonial property regime of their nationality" is valid).

However, of course, it will be at the time of the sale (voluntary or forced) when the specific applicable foreign law will have to be taken into account in order to assess the conditions of such disposal.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 29, 2024 (BOE of October 10, 2024), in which the General Directorate analyzes an interesting case in which the Property Registrar refuses the issuance of a registry certification detailing the purchase price paid by the current registrant.

In the present case, a person requests the issuance of said certification, detailing the purchase price stated in the registry inscription, alleging that he has signed a deposit contract with the current owner and that he intends to file legal actions related to the same (injury in half of the fair price, of art. 621-45 CCCat and unfair advantage of art. 621-46 CCCat), for which, he requires to know said purchase price. The applicant provides as proof of her legitimate interest a copy of said earnest money contract and a power of attorney for lawsuits for the purpose of filing said legal action.

The General Directorate, revoking the Registrar's refusal, considers that the legitimate interest in the case is sufficiently accredited in order to obtain details of the sale price that is required to be known, since this is a key element to determine the viability of the legal action that is sought to be filed.

Attached (HERE) Judgment of the Court of Justice of the European Union of October 24, 2024, in which the Court, in response to a preliminary question, determines that, under the Union legislation applicable to the case (which is reflected in each Member State), the natural person who acquires a residential property, with bank financing (mortgage loan), for the purpose of leasing the same, for valuable consideration, must have the status of consumer, provided that it is not a professional activity of that person.

As a result of such consumer status, it is understood that the consumer protection rules in the field of mortgage loan contracts (i.e., LCI in the Spanish case) will be applicable. To be taken into account when considering a transaction of this nature.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 23, 2024 (BOE of October 9, 2024), which analyzes a case of a mortgage loan (with guarantor) that is presented for registration, where the Notary, when referring to the previous LCI act and its content and result, no express mention is made of the fact that the borrower and guarantor parties have received the advice provided for in Article 15 of Law 5/2019 of March 15 and that, likewise, the guarantor party has received the documentation established in the LCCI sufficiently in advance.

The Registrar denies the registration for this reason and the General Directorate confirms the defect, so that, as a conclusion, we must be extremely careful when indicating the LCI act in all mortgage loans, with all the requirements demanded by the LCI, especially in those cases in which third parties intervene in the operation beyond the mortgagors (as in this case, guarantors).

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 23, 2024 (BOE of October 9, 2024), in which an interesting case is analyzed, in which the owner (different from the developer, since the latter had already sold it) of a premises subject to the horizontal property regime, unilaterally segregates a part of it to form an independent property, unilaterally segregates a part of the same to form an independent property, relying for this purpose on a clause of the bylaws of the parent property where it is stated that "the promoter of the horizontal division reserves the right to divide the business premises on the first floor in the manner it deems appropriate".

Once this deed was presented for registration, the Registrar refused to register it, since she understood that the clause in the bylaws only enables the developer to carry out this unilateral segregation (i.e., without the agreement of the corresponding meeting), and not subsequent owners of the property, this criterion being confirmed by the General Directorate, in the sense that, since it is an exception to the general rule provided for in the legislation regulating horizontal property, as such, it must be interpreted restrictively.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 22, 2024 (BOE of October 9, 2024), in which the owners of a property formalize a mortgage loan on their property, for an amount of more than 500,000 euros (with a maturity of 6 months) and, at the same time, grant the creditor a power of attorney to sell the property, collect the price (and with the same to amortize the debt in case of non-payment) and cancel the guarantees. After some time, finally the attorney-in-fact makes use of the power of attorney and sells the property before a Notary, in order to collect the unpaid outstanding debt.

Once this deed of sale was presented for registration, it was negatively qualified by the Registrar, alleging in essence that this procedure violates the general prohibition of the commissory agreement (arts. 1,859 and 1,884 Cc), a criterion that is confirmed by the General Directorate in its resolution.

Attached (HERE) the text approved by the Catalan Government to process the modification of the autonomous Civil Code in matters of support for the exercise of the legal capacity of persons.

The text, based on the New York Convention, is firmly committed to the autonomy of persons with disabilities, moving from the old model of substitution of will (incapacitation), to one based on accompaniment, through informal or formal institutions, such as assistance or preventive supports (powers of attorney in anticipation), that is, areas where Notaries can participate very actively in the protection of persons with disabilities.

In any case, it will be necessary to wait for the corresponding parliamentary procedure for the entry into force of the text.

On October 9, 2009, it has been published (HERE) the Report of the Complaints Service of the Bank of Spain, corresponding to the fiscal year 2023, where the banking supervisor compiles all the complaints filed by bank customers against their institutions, as well as the resolution criteria applied by the supervisor in the most conflictive matters.very interesting document to resolve doubts of customers about the origin of commissions, interest rates, penalties, etc. in their relations with their bank.

Interesting novelties such as in the matter of zero balance certificates when cancelling the mortgage (where it is not required to provide a simple note), in the matter of maintenance fees when the inheritance is lying (where an unjustified increase of fees is not acceptable) or on the necessary transparency in relation to the amortization system of mortgage loans.

Attached (HERE) Resolution of the Direcció General de Dret, Entitats Jurídiques i Mediació of October 2, 2024 (BOGC of October 11, 2024), in which the DG resolves a case related to the attempt to register a court order ordering the registration of the use of the family home (owned 50% by the two ex-spouses), attributed in a divorce sentence, to the common minor children of the marriage, and to the ex-spouse to whom their guardianship corresponds.

In the resolution in question, the registration of this right is ordered, but without specifying the temporary duration of the same, which is initially rejected by the Land Registrar, and confirmed by the DG, in the sense that, in accordance with art. 233-20 CCCat, the attribution of the use of the dwelling must be made on a temporary basis, so that, in the resolution that is agreed, the temporary duration of said attribution must be clearly specified, so that the same can be correctly registered in the Land Registry.

Attached (HERE) Resolution of the Direcció General de Dret, Entitats Jurídiques i Mediació of September 27, 2024 (BOGC of October 7, 2024), in which the DG resolves a case concerning the attempt of the owner of a parking space inserted in a community garage (i.e., subject to a horizontal property regime), to unilaterally modify the description of his parking space, in order to attribute to himself the exclusive use of a certain annex or space of the community parking lot, basing his claim on an alleged transcription error in the deeds of incorporation of the horizontal property regime and sale and purchase.

The Registrar, as it could not be otherwise (as it finally happens with the resolution of the DG), determines that this is not possible, since in order to rectify the registry entry and recognize the right of a specific square to the private occupation of a common space, this implies in essence an act of disposition (to attribute the exclusive use) within a community, for which the unanimous consent of the rest of the co-owners of said community will be required, in accordance with what is expressly established in article 552-7.6 of the CCC.

Attached (HERE) interesting Sentence of the High Court of Justice of the Valencian Community, where an interesting case is solved that can be applicable to other cases, in relation to the reference value.

The starting point is the sale of a property for €65,000 (a transaction subject to ITP), in which the regional tax authorities, after initiating a limited verification, set the reference value of the property at €130,884.53, and proceeded to issue a settlement proposal with this amount as the taxable base. The taxpayer, after an initial rejection in administrative proceedings, appealed the liquidation in economic-administrative proceedings, requesting the suspension of the execution of the contested liquidation act, reserving the right to request the contradictory expert appraisal (TPC).

The TEARCV upheld the suspension request, understanding that it was a right of the claimant after a verification of the declared value by means of art. 57 LGT, a criterion that is confirmed by the TSJ, expressly determining that in these cases, after the verification of the declared value, the taxpayer is entitled to the TPC, which implies by legal mandate the suspension of the execution of the liquidation, either by requesting the TPC or by reserving the right to promote it.

Attached (HERE) interesting Judgment of the Provincial Court of Girona 688/2024, of April 24, where a case is resolved regarding the validity of a disinheritance clause contained in a will, under the protection of art. 451-17, letter e, CCCat, where a man disinherits his two daughters, for an alleged manifest and continuous absence of family relationship between him and the legitimacies, for a cause solely attributable to the legitimacies.

In the litigation, however, it is accredited that the absence of family relationship is due to the conduct of the father (Mr. who separates from the mother when the daughters are very young, abandons the family home and practically does not maintain relations with the minor daughters), so that the cause of disinheritance of the daughters of art. 451-17 CCCat is not applicable, since it requires that the cause is only attributable to the legitimated daughters.

Thus, it is recalled that in order for this cause of disinheritance to apply, the origin of the absence of relationship must be attributable exclusively to the legitimacies, and not to the deceased in question.

Attached (HERE) link to a new article of the blog of the Notary's Office, where the new Compendium of Good Banking Practices criteria is analyzed, that is, a document prepared by the banking supervisor, where the Bank of Spain sets the interpretative criteria, methodologies or procedures that have been consolidated as standards in the sector or are reasonably required for responsible, diligent and respectful management with the banking clientele.

This document determines the way in which common disputes between banks and their customers should be resolved, in a multitude of matters, such as commissions, loans, wills, etc. It also replaces and unifies the criteria previously contained in the Annual Report of the Complaints Service of the Bank of Spain. This document is very useful for customers to find criteria with which to resolve possible conflicts or discrepancies with their bank.

Attached (HERE) Judgment of the Superior Court of Justice of Catalonia 2821/2024, of January 30, where a case is resolved regarding a real right of lifetime use, which the plaintiff seeks to have recognized in his favor.

The case is based on the assumption that some parents propose to their daughter (who is married and has two daughters) to go to live with them, to a house owned by those parents, after carrying out the relevant works (by means of which, in the same registered property, two different houses are actually built). The daughter accepts the proposal and they move to live in that house, but after a few years and a marital separation, the parents decide that they do not want to maintain this situation any longer, and sue the daughter to leave the house, considering that she is occupying it in precarious conditions. In view of this situation, the daughter sues the parents, considering that at the time, when her parents made this proposal, they actually granted her a right of use in her favor over her parents' home, of a real and lifelong nature, which she claims to be recognized by the courts, and which was indeed recognized in the first and second instance.

However, finally, the SCJ, in the Judgment analyzed, determines that the right of use of a house by the parents to their daughter, free of charge and for life, according to the legal provision, was in legal terms a donation of real estate that needed to be recorded in a public deed, an essential formal requirement for the effectiveness of the legal business (ats. 531-7, 531-12 and 562-1). Therefore, since this real right of use has not been constituted in a public deed, it is not appropriate to recognize it, making it clear once again how important it is to go to the Notary and to formalize correctly the legal acts and businesses that are intended, in order to achieve their validity.

Attached (HERE) Judgment of the Superior Court of Justice of Catalonia 5861/2024, of April 17, where a case is resolved regarding the signing of a deposit contract for the sale of a house of 582,000 euros, where the future buyer delivers to the seller the amount of 40,000 euros, as a penitential deposit, agreeing however the possibility of withdrawal of the buyer under art. 621-49 CCCat.

In this regard, it should be remembered that art. 621-49 CCCat (provision for financing by a third party), determines that "if the purchase contract provides for the financing of all or part of the price by a credit institution, the buyer, unless otherwise agreed, may withdraw from the contract if he justifies in writing, within the agreed period, the refusal of the designated institution to grant the financing or to accept the subrogation of the buyer in the mortgage encumbering the property, unless the refusal is due to the negligence of the buyer".

In the analyzed case, the buyer does not obtain financing from two different banks, and in view of this, requests the withdrawal agreed in the earnest money contract, which is not accepted by the seller, alleging that the refusal of such financing is due to the negligence of the buyer in having requested the financing of the property that is the object of this litigation lacking the necessary repayment capacity.

The Supreme Court, in view of the circumstances of the case, upholds the buyer who has withdrawn from the contract, resolving two interesting issues:

1. That for the application of art. 621-49 CCCat it is not necessary to specifically designate a financial entity that has to grant the financing (one or several of the buyer's choice can be used, without the need to designate it previously so that the cause of withdrawal can be applied in the face of the refusal of the financing).
2. That the withdrawal will not be applicable to the buyer who has a negligent attitude (that is, no possibility, from the beginning, of obtaining the mortgage financing), but it will be applicable to the buyer who, initially, being able to afford the financing, during the process of studying the same suffers an unforeseen decrease in income that leads to the refusal to grant said financing.

Pursuant to Article 202 of the Notarial Regulations (regarding notification certificates), "If the notary is unable to deliver the certificate, he/she must send the same by certified mail with acknowledgement of receiptas established in Royal Decree 1829/1999of December 3, 1999, or by any other procedure that allows a reliable record of the delivery". In said Royal Decree, until now it was established that registered mail services had to be provided through the universal postal service (that is, only through the public company "Correos", and not to other private operators).

Recently, Royal Decree 437/2024 has come into force, which repeals Royal Decree 1829/1999, creating a legal gap that needs to be filled, since the new regulation does not expressly establish anything in this regard.

In view of this, and by application of art. 22.4 of Law 43/2010, it is considered that in this type of notification acts, the remission of the same should continue to be made by registered mail with acknowledgement of receipt through the public company of Correos, since it is the only one that reliably proves the fact of its realization, delivery or refusal.

As part of the collaboration between the General Council of Notaries and the General Directorate of Cadastre, the cadastral certificate of reference value determined by the General Directorate of Cadastre has been made available on the SIGNO platform. When requesting the certificates of a property through the Real Estate Processing Service in SIGNO, it will be possible to access both the new cadastral certificate of reference value and the descriptive and graphic cadastral certification, which was previously available.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of June 26, 2024 (BOE of July 17, 2024), where the DG resolves a case related to a power of attorney deed that is intended to be registered in the Mercantile Registry, in which, among other powers, the granting company grants the attorney-in-fact the capacity to "grant powers or powers of attorney, totally or partially and within the limits that have been conferred, to the person or persons that it freely deems convenient to freely revoke the powers of attorney that may have been conferred".

The Mercantile Registrar denied the registration, alleging that in order for the attorney-in-fact to be able to grant new powers of attorney, the express consent of the administrative body is required (arts. 261 and 296 CCom).

The DG, aligning itself with the Registrar, determines that in the field of commercial powers of attorney, the very raison d'être of the power of attorney means that the power to substitute cannot be considered as susceptible in turn to substitution, since the initial grantor has granted it exclusively to the attorney in whom he has placed his trust, so that in order to be able to practice it successively (whether or not with limits) it must be made explicit with absolute and meridian clarity.