Notarial blog and other practical content

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) 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.

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) 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.

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) 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 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) 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 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) 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.

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.

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.

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.

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) 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) 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) 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) is the Resolution of June 20, 2024, of the Directorate General of Labor, which registers and publishes the III State Collective Bargaining Agreement for Notaries and their employees, which will regulate the labor relationship between Notaries and their employees for the years 2024, 2025 and 2026. To take as a reference standard to regulate the labor relations between Notaries and their employees.

Attached (HERE) Resolution of the Direcció General de Dret, Entitats Jurídiques i Mediació of July 15, 2024 (BOGC of July 23, 2024), in which the DG resolves a case related to the Catalan civil law institution of the heir of trust, by virtue of which the testator, in his will, can institute heirs or legatees of trust to specific natural persons to give the assets the destination that he has confidentially entrusted to them, by word of mouth or in writing (art. 424-11 CCCat).

In this figure, however, the law (art. 424-15 CCCat) determines the ineffectiveness of the dispositions of trust in case the heirs or legatees named reveal it or fulfill it in their favor, that is, they award for themselves the assets of the inheritance, which is precisely what happens in this case, where two nieces intend to award themselves a property of their deceased aunt through this way, something not allowed by law, and thus confirmed by the Direcció General.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 9, 2024 (BOE of July 23, 2024), which resolves a case related to the sale of a property where there is a new construction, with an age of less than 10 years, where the obligation to prove the existence of the ten-year insurance is discussed.

As is well known, in accordance with the legislation in force (Law 38/1999, on Building Regulation), it is compulsory to take out a ten-year insurance policy for new construction. However, the 2nd DA of Law 38/1999 determines that this guarantee will not be required in the case of individual self-builders of a single single-family dwelling for their own use.

In the event that the property is sold before these 10 years, this 2nd DA determines that the self-promoter, unless otherwise agreed, will be obliged to contract this guarantee for the time remaining to complete the ten years. Likewise, for this exemption to be valid, the law determines that the self-promoter must prove that he has used the property for his own use.

In the present case, the sale is made before 10 years have elapsed, and an attempt is made to prove that the property has been used by the self-promoter for his own use, but providing utility bills in the name of a company other than the registered owner (which happens to be a company of the same group, instrumental, for the tourist exploitation of the property), which, in the opinion of the Registrar, and also of the General Directorate, proves that the requirement demanded by the law (exclusive use by the self-promoter) is not met, so that it is necessary to prove the constitution of the corresponding insurance.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 9, 2024 (BOE of July 23, 2024), where the DG accepts a statutory clause that allows to save the omission of the place of celebration of the general meeting in the call.

Specifically, a deed of incorporation of a commercial company is authorized, whose bylaws (art. 9) state that "if the notice of meeting does not indicate the place where the meeting is to be held, it shall be understood that the meeting has been called to be held at the Company's registered office". Likewise, art. 23 of the Bylaws determines that "in all matters not provided for in these Bylaws, the provisions of the Capital Companies Act, or the rule that replaces it, and complementary legislation and regulations, shall apply".

The Registrar refuses the registration of this clause, considering that the provision that the meeting may be held anywhere in the national territory is not admissible, because it cannot be left to the discretion of the administrative body to decide where to hold each meeting it convenes (even if it complies with the requirements of form and advance notice), since the determination of the municipal district where the meetings are to be held constitutes a guarantee for the shareholders.

After the corresponding appeal was filed, the DG aligned itself with the criteria of the Notary, ruling that in this specific case, what is done in the Bylaws is simply a partial reproduction of Article 175 of the Capital Companies Law, only of its second paragraph, but this does not imply a defect that prevents its registration.

Attached (HERE) Resolution of the Directorate General of Legal Security and Public Faith of July 8, 2024 (BOE of July 23, 2024), where the DG resolves a case related to a deed of change of registered office of a company, whose bylaws contain the following provision "by agreement or decision of the administrative body, the registered office may be changed within the same municipal district". In the deed in question, the sole administrator changes the registered office from a property located in Madrid city, to another located in the town of Getafe.

The Commercial Registrar denied the registration, since in accordance with Article 3 of the Articles of Association, the administrative body is not empowered to change the registered office to a different municipal district; this criterion being confirmed by the General Directorate when resolving the corresponding appeal, considering that in effect, this provision of the Articles of Association is a provision contrary to the competence of said body to change it within the whole of the national territory.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of June 11, 2024 (BOE of July 12, 2024), where the DG resolves a case in which a purchase option with the following characteristics is presented for registration:

1. The option price amounts to the sum of 5,500 euros, which is acknowledged to have been received by the grantors.
2. The price of the future sale is fixed at 110,000 euros, of which 105,600 euros (representing 96% of the purchase price) is received when the option deed is executed "on account" of the agreed price.
3. It is also agreed that the option cannot be exercised before 12 months.

Once this purchase option was presented for registration, the Registrar denied the registration stating that, in reality, we are not dealing with a purchase option, but with a loan with a letter of grace or a commission option (prohibited by law), this criterion being confirmed by the General Directorate. Thus, it is necessary to bear in mind that each legal business is for what it is, and different figures cannot be used to cover up in reality another class of legal business.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of June 28, 2024 (BOE of July 17, 2024), where the DG resolves a case in which a bankrupt company sells a property of its property (a parking space) that was encumbered with a mortgage in favor of a bank, which is economically cancelled (a certificate of zero balance is provided), but not registered.

The Registrar refuses the registration, determining that it is essential that the cancellation (225 TRLC) be present in order to register the transfer, this criterion being confirmed by the General Directorate.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of June 20, 2024 (BOE of July 15, 2024), where the DG resolves a case related to a deed of sale, in which several selling parties formalize the transfer represented by proxy. The authorizing Notary, when reviewing said powers of attorney and making the sufficiency judgment, simply expresses that in his opinion the representative powers conferred on them in the power of attorney for the execution of the deed of sale are sufficient, without the identity and condition of the grantors of the power of attorney being recorded.

The Registrar denies the registration for this reason, and this criterion is confirmed by the General Directorate, determining that in the judgment of notarial sufficiency of the power of attorney, the expression of who were the persons who granted the powers of attorney, that their positions were valid and in force, and that they had sufficient powers to grant the representation on behalf of the principal, must be included.

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.

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.

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.

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.

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.

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.).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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).

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.

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.

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).

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".

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).

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).

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.

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.

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.

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.

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.