I want to buy a house on which there is a mortgage and I want to cancel it... How should I proceed and who assumes the costs of this cancellation?
19/2/2021
Reading time:
Share:
Real estate and mortgage

I want to buy a house on which there is a mortgage and I want to cancel it... How should I proceed and who assumes the costs of this cancellation?

In this article you will find

This is one of the issues that generates most nervousness and interest in the parties involved in a real estate sale and purchase, especially in the buyer of a property. Therefore, the purpose of this article is to clarify how to proceed, both the seller and the buyer, when there is a previous mortgage (or several) encumbering the property being sold, with the aim of achieving its economic and registry cancellation, so that the property is already free of encumbrances for the new owner who acquires it.

Well, before explaining how the parties involved have to proceed and what scenarios can occur when canceling a mortgage, it is essential to understand basic concepts explained in a simple way through my favorite "question-answer" method. I am aware that this is a long article, as I try to explain as best I can all the doubts that clients raise on a daily basis. For this reason, I highlight in bold the main ideas all spun together. So, if you wish, just reading the headings and the text highlighted in bold can shorten the reading time and not miss content.


What is a mortgage right in rem?

The mortgage is a right that is constituted on a property, with the purpose of guaranteeing the fulfillment of a principal obligation, that is, a loan.

Thus, when a buyer acquires a property by resorting to financing from a bank, the bank lends him money(for example, 100,000 €) so that he can buy the property in question, with the commitment to repay this amount within an agreed period(for example, 30 years), through the payment of monthly installments(of, for example, 400 € per month).

In view of this, in order to guarantee the fulfillment of a principal obligation (i.e. the loan), debtor and creditor constitute on the acquired property a guarantee, which is technically known as a real right of mortgage, by virtue of which, if there is a default on the loan, the financial entity, as creditor, has the right to initiate a judicial foreclosure proceeding in order to have the property auctioned so that, with the money obtained from the best bid, it can recover the money loaned and the interest that would have been due, has the right to initiate a judicial foreclosure proceeding in order to have the property auctioned so that, with the money obtained from the highest bid, it can recover the money loaned and the interest accrued, as well as the expenses and costs generated by the judicial proceeding.

In view of the above, it is very important that the interested parties understand that, when they formalize a mortgage loan, they are in fact carrying out two different legal acts or businesses:

  • First, a loan contract, which is the main obligation, by virtue of which a bank lends them an amount of money, in exchange for the debtor repaying it within a period of time and with an agreed interest rate.
  • Secondly, a mortgage right over the property, as the guarantee of the fulfillment of this obligation, which allows, in the event of non-payment of the loan, as mentioned above, access to a summary judicial proceeding in which the property will be auctioned, in order to obtain the necessary funds for the bank to recover its money.

What is the typical life cycle of the mortgage loan?

The normal and most usual thing is that the owner of a house acquired by means of bank financing through a mortgage loan is repaying this loan for 15, 20 or 30 years, normally. However, it is frequent that, in practice, due to ignorance, the debtor, when he finishes paying his loan to the bank, forgets to carry out the last step, that is to say, to "erase" from the Property Registry the mortgage that he registered at the time as a guarantee of the loan that was made.

Thus, if in order to formalize the mortgage loan a solemn act before a Notary Public was necessary, granting the corresponding mortgage loan deed, in order to cancel the mortgage from the Land Registry it will be necessary to grant before a Notary Public a new deed, in this case, of cancellation of the mortgage, as well as to manage its registration in the Land Registry, so that the property is free of charges, all this in the terms that will be explained in the following questions.

Regarding this situation in which many debtors pay their loan but do not cancel the mortgage, it is perhaps necessary to indicate that in our country there is no culture in which the financial entity, at the end of the payment of the loan, reminds its client of the need to cancel the mortgage, since although a priori it is not an obligatory procedure, it will undoubtedly be very useful in the future to do so, otherwise, if for example we or our heirs want to sell the property, it will be necessary to carry out this registration cancellation with a short margin of time and perhaps, due to the haste, at a higher cost than what it could suppose if it is done now, with time and in a meditated way.


What is the difference between the economic cancellation and the registration cancellation of the mortgage?

As has just been observed in the previous questions, in the life cycle of the payment and extinction of any mortgage loan, in reality, two major moments can be distinguished, since, as has already been detailed, the mortgage loan actually contains two different legal acts or businesses, that is, firstly, the principal obligation, in the form of a loan, and secondly, the guarantee of said principal obligation, in the form of a real right of mortgage.

Thus, if in fact the mortgage loan contains or encompasses two different acts or businesses (OBLIGATION + GUARANTEE), as it cannot be otherwise, the cancellation of the mortgage loan also entails two different phases or actions, which will be explained below:

  • check
    A first phase, which receives the popular denomination of economic cancellation of the mortgage loan (CANCELLATION OF THE OBLIGATION), which refers to the payment of the money that has been received in loan. Thus, it is possible to affirm that a mortgage loan is economically cancelled when it has already been paid, that is to say, when all the money that the bank has lent us has been returned, thus giving for fulfilled the main obligation.
  • check
    On the other hand, the second phase, which is called cancellation of the registration (CANCELLATION OF THE GUARANTEE), is the one that refers to the cancellation of the real right of mortgage in the Property Registry, that is, the need to "make disappear" from the Registry that guarantee of compliance with the main obligation (remember, the loan) that has already been fulfilled (since the money has already been returned), so that said guarantee has already lost its raison d'être.

  • How is the cancellation of a mortgage registration handled?

    In order to obtain the registration cancellation of a mortgage, as mentioned above, the first and most important thing is that the secured debt is paid, that is to say, that all the money that the bank lent at the time has been repaid.

    Thus, the homeowner, once the loan has been paid in full, must go to the lending financial institution to receive what is called a zero balance certificate, i.e., a document in which the bank certifies that the mortgage loan in question has been paid in full, that there is nothing more to claim for this concept and that, therefore, it consents to the cancellation of the mortgage in the Property Registry.

    Once the owner has obtained this document, there are several ways to obtain this cancellation of the mortgage guarantee at the Land Registry:

    • First option, the traditional but not the only one: to entrust this management directly to your bank, which will ask you for a provision of funds for the management of all this procedure. In this case, it will be your bank (or the agency it hires for this purpose) who will manage the signing of the mortgage cancellation deed with a Notary of your choice and its registration in the Land Registry.
    • The second option is also common: if you wish, with the zero balance certificate already in your possession, you can entrust this management to an agency or lawyer of your confidence, who will also charge you a fee for the entire management.
    • Third option, less recommended but possible: Also, if you wish, you can manage the entire process yourself. To this effect:

      • You must choose a Notary of your confidence and give him this certificate of zero balance, this Notary will contact a representative of your bank so that he is the one who signs the deed of cancellation of the mortgage. Once the deed is signed, upon payment of the notary fees, the Notary will give you a certified copy of the deed.
      • Subsequently, you must file the corresponding self-assessment tax return with the regional tax office, which, although its net amount is 0, must also be filed.
      • Once this procedure has been completed, the mortgage cancellation deed must be presented, together with the self-assessment of the tax, to the corresponding Land Registry, so that it can proceed to its registration and, therefore, the intended registration cancellation of the mortgage can be achieved. This procedure will also have a cost, in the form of the Property Registrar's fee, which must be paid in order to, finally, go again to the Land Registry to withdraw the deed, already registered.
      As you can see, it does not seem to be the most advisable option to manage this procedure yourself, because all this will entail multiple trips to different institutions to carry out an action that, for a reasonable price, can be entrusted to a third party, professional and specialized in the matter, who can perform it on your behalf without you having to assume all these tasks.
    • Finally, the fourth and increasingly frequent option: if you wish, once you have obtained the zero balance certificate, you can also entrust the entire process to a Notary Public you trust, who will take care of finding a proxy from your bank to sign the mortgage cancellation deed, as well as submit the self-assessment of the tax and, subsequently, present the deed to the Land Registry to obtain its registration.

    Who must sign the mortgage cancellation deed before a notary public?

    Unlike what happens when a mortgage loan is formalized before a notary where both the bank and the borrower or debtor (in turn, the new owner of the property that is mortgaged as a guarantee) must be present and sign. To cancel the mortgage notarially, it is sufficient that a representative of the financial entity (and not the owner of the property, as some erroneously believe), goes to the Notary to sign the deed of cancellation of the mortgage, where he states that the loan guaranteed by the mortgage is already paid and that, therefore, the bank he represents consents to the cancellation of the mortgage in the registry. Subsequently, once the mortgage cancellation deed has been signed, it must be registered in the Land Registry, after which the property will be free of encumbrances.

    For that simple reason, that the debtor no longer has to appear before a notary, and only a representative of the bank must do it, in many occasions the banking entities or their trustworthy notaries usually concentrate the signature of this type of document (as it is the deed of cancellation of mortgage) in their notaries of trust or of habitual use in the daily practice.


    What is the so-called cancellation of the mortgage due to statute of limitations?

    In addition to the ordinary way described in the previous question, it is also necessary to specify that there is a subsidiary way to cancel the registration of the real right of mortgage, and this is the way of the so-called "prescription". Thus, in this case, it will also be possible to obtain the desired cancellation of the registration if 21 years have elapsed since the last monthly payment of the secured loan should have been made, without the mortgagee having exercised the mortgage action and, therefore, there is a record of this in the Property Registry.

    In such a case, the interested party must present a private request to the Land Registry, with his signature notarized, requesting the cancellation of the mortgage in the registry due to the aforementioned circumstance.

    In any case, as it can be observed, this is a subsidiary way that is not very advisable, because although it can have a lower cost, to obtain it, it will also be necessary to carry out several steps that will take a lot of time (such as drafting the private request, going to a Notary to legitimize the signature and later going to the Land Registry to present the request or, if necessary, correcting possible defects in the document, etc.) and, above all, because it postpones the solution of the case for a very long time, leaving the property encumbered by the mortgage corresponding to a loan already paid for many years, which can be detrimental to the future of the property owners.) and, above all, because the same one postpones the solution of the case to very long term, being the property encumbered by this mortgage corresponding to a loan already paid during many years, which can harm in the future to its owners or heirs if, before that term is reached, some circumstance arises that makes necessary to sell the property or to mortgage it again.


    Who pays the cost of the mortgage cancellation deed?

    In relation to the question of who should pay the cost generated by the mortgage cancellation deed, it is necessary to point out that, in practice, there is some controversy, since on occasions, individuals argue that this cost should be assumed by the financial entity that lent them the money at the time.

    To this end, in order to clarify this issue, it is necessary to bring up the following rules that refer directly or indirectly to the question, in which we will find the appropriate answer.

  • check
    Thus, as established in Rule Six of the General Rules for the Application of the Notary Fees (Royal Decree 1426/1989, of November 17, 1989), which is the rule that regulates the cost of deeds and other public documents, "the obligation to pay the fees will correspond to those who have requested the provision of the Notary's functions or services, and if applicable, to the interested parties according to the substantive and fiscal rules". In this case, as can be seen, the request for the provision of notarial services will come from the mortgagor, that is, from the person who owns the property requesting the execution of the deed of cancellation of the mortgage, for the purpose of obtaining the release of the charge on his property.
  • check
    Likewise, and as regards the concept of interested party referred to in the aforementioned rule, it is necessary to bring up the case law of the Supreme Court on this matter (specifically, STS 105/2019, of January 23), in which the High Court has established that "as regards the mortgage cancellation deed, the interested party in the release of the lien is the borrower, and therefore this expense corresponds to him".
  • check
    Additionally, and in the same sense, it is necessary to mention the provisions of article 1168 of the Civil Code, which, applied to the scope of the cancellation of the registration of the mortgage right in rem, determines that the party obliged to assume its cost is the debtor, since it is the party who must bear the cost of the extinction of the obligations.
  • Therefore, in view of the applicable regulations and the interpretation of the same by the Supreme Court, it can be concluded that the person who must pay the Notary Fees for a mortgage cancellation deed is the debtor or borrower, because he is the one who has requested the notarial services for such purpose and, also, because he is the interested party in the execution of the deed, since, in short, he is the one who obtains the benefit of the registry release of the real right of mortgage, once the deed has been registered in the Property Registry.

    Finally, if the reader is interested in obtaining more information on the usefulness and cost of the mortgage cancellation deed, he/she can access HERE to an article in which the current status of the issue is discussed in detail.


    What are the costs of paying off a mortgage?

    In order to cancel a mortgage, there are two mandatory costs: the notarial cost (of the execution of the public deed of cancellation of the mortgage) and the registry cost (of the registration of the public deed in the Registry). Both costs are strictly regulated by Law. Therefore, neither the notaries nor the registrars can freely charge whatever they want. 

    However, it is common in practice to find a third additional cost, which is the administrative or processing fee. This cost can be freely set by the person who carries it out. The management or processing costs usually refer to two different but necessarily related procedures:

    1. The presentation and liquidation of the tax (AJD) before the competent Tax Administration. Although at present the mortgage cancellation deed is exempt from payment (i.e. no tax is paid), it is subject to tax. It means that, although no tax is paid (except in the Basque Country in specific cases) the presentation in Treasury and its correlative control must be done equally.
    2. The presentation of the notarial deed of cancellation of the mortgage together with the pertinent tax liquidation, for its registration in the competent Property Registry of the place where the property whose mortgage is to be cancelled is located.

    Carrying out these formalities involves time and knowledge. And obviously if these tasks are entrusted to a third party (be it the notary, a lawyer, the agency or the bank itself) they will charge a fee for it. Independently of the notary and registry fees. Several years ago, I developed a digital calculator that was able to calculate (according to the notary and registry fees) with great precision the economic costs of a mortgage cancellation. You can access it through my website at the following link: (HERE). In this way, any citizen can be informed in advance and with great rigor.


    Why is it important to cancel a mortgage?

    As has already been pointed out in a previous question, it often happens that some individuals, when dealing with the question of the registration cancellation of their mortgage loan already paid, choose not to do so, as they believe that it has no consequences, since it is not a strictly obligatory procedure.

    However, this decision, in my opinion, is very far from reality, since in the future, it is more than likely that legal transactions will have to be carried out on that property, which will undoubtedly be hindered, made difficult and even prevented by the fact that this prior charge is not cancelled.

    So, for example, if the owner of the property needs money in the future and requests a new loan with mortgage guarantee, this operation will not be approved until the previous charge has been cancelled in the registry. Or it can also happen that, if in the future it is desired to sell the property, it will undoubtedly be necessary to cancel the old mortgage already paid, but all this will have to be done with very limited deadlines, since the times of the procedure will be determined by the urgency of closing the sale operation. Or even, thinking more in the long term, it can also happen that, in the future, when the owner of the property dies and his heirs acquire it, if they want to sell it, the process and its cost will be transferred to them (i.e., for example, to their children), which certainly does not seem to be the most desirable option.

    Therefore, although at first sight it may not seem a priority, the most appropriate and sensible option is, once you have finished paying your mortgage loan, to proceed with the cancellation of the registration of the charge in the Land Registry.


    How long will it take to get the mortgage cancelled?

    Regarding the time it will take to cancel a mortgage, there are many variables that can influence this. The process is always the same:

    1. Find out the costs involved in the process of paying off the mortgage;
    2. Choose the most appropriate means(do it through the bank, the notary's office, an agency or lawyer, or even do it yourself);
    3. To make the provision of funds;
    4. Obtain the zero balance certificate;
    5. Send it to the notary, who will prepare the deed of cancellation and contact the bank;
    6. That a representative of the bank comes to sign the deed of cancellation at the notary's office;
    7. Once the mortgage cancellation deed has been signed before a notary, it must be presented and the tax paid to the tax authorities;
    8. Finally, file and wait 15 working days for the registration of the cancellation at the Land Registry;

    However, depending on the person responsible for carrying out this process, the times, as mentioned above, can be very different. Nowadays, except for the signing of the deed of cancellation by the bank representative, which must be done in person and requires physical travel (either by the notary or the bank employee), the rest of the procedures can be done telematically. This has greatly reduced waiting times. Having said that, in summary, if no incidents occur in the process of signing the document or in its registration, within approximately 3 - 4 weeks, you can have the cancellation of your mortgage registration.

    Up to this point, I have tried to answer the most common doubts. But in practice there are several scenarios that can make the question a little more complex as we will see below.

    [First complex and very common scenario in daily notarial practice].

    "When a person wants to buy a house and there is a mortgage loan on it that is still outstanding."

    Without prejudice to what has been explained so far, it is very common that the current owner of the property, before the end of the payment of the loan, for whatever reason (for example, because he wants a bigger house, because he wants to move, because he no longer likes his current home, etc.), decides to sell the property, so that he still has part of the loan that he requested at the time to acquire it, pending payment. ) decides to sell the house, so that he/she still has part of the loan that he/she requested at the time to acquire it, pending payment. In such a case, we would be talking about a mortgage that is not economically cancelled, but that has an outstanding balance, which will be necessary to cancel economically and in the registry, in the way that will be detailed in the following questions.


    How will the seller's previous mortgage loan be paid off financially?

    In order to obtain the economic cancellation of the loan that the seller has in force, the seller, as the current owner of the property, will contact the bank to which he owes the loan, and will communicate his will to sell the mortgaged property and, therefore, to cancel the mortgage loan in advance. He will also inform you of the exact date on which the sale and purchase is expected to take place(for example, April 1, 2021).

    In view of this, the creditor bank will provide the current owner with a certificate of outstanding balance at the date on which the sale is expected to be formalized, which will also indicate the bank account number (of course, owned by the bank and not by the seller) into which the buyer must deposit the said amount.

    So, for example, if the current owner owes 85,000 € on April 1, 2021, his bank will give him a document in which this is reflected, and in which the bank account XXXX-XXXXXX-XXXX-XXXXXX-XXXXXXXXXX, owned by that bank, in which those 85,000 € must be deposited in order to be able to economically cancel the previous mortgage loan.

    Thus, on the day of the notarization of the purchase and sale in a public deed, the buyer, from the entire agreed purchase price, will retain the part corresponding to the outstanding balance of the loan in question, for the purpose of paying it himself directly to the creditor bank, in the account indicated in that certificate, by means of an immediate bank transfer of the Bank of Spain type.

    Thus, returning to the previous example, if the purchase price has been set at 200,000 €, of this amount, the buyer will retain 85,000 € corresponding to the outstanding balance of the mortgage loan, so that he will only deliver 115,000 € to the seller, while those 85.85,000 € will be paid directly by means of an immediate transfer via the Bank of Spain (also known as OMF) so that the creditor bank receives this money and economically cancels the mortgage loan, and the remaining 1,000 € will be used to pay the costs of the registration cancellation of the mortgage.


    How will the seller's previous mortgage loan be cancelled?

    Once the economic cancellation of the mortgage loan has been achieved, it will also be necessary to manage the cancellation of the mortgage registration. For this purpose, the buyer must also retain the cost that may be involved in the cancellation of the mortgage registration (including the cost of the notary fee, the registration fee and the fees of the notary, lawyer or agency to which this management is entrusted), in order to be able to pay them and obtain the cancellation of the mortgage registration.

    So, taking the previous example, if the purchase price has been set at 200,000 €, of this amount, the buyer, who has already retained 85,000 € corresponding to the outstanding balance of the mortgage loan, will also retain another 1,000 € to meet the cost of the registration cancellation of the mortgage charge, so that finally he will only deliver 114.114,000 to the seller, while those 85,000 € will be paid directly, by means of an immediate transfer via the Bank of Spain (also known as OMF) so that the creditor bank receives that money and economically cancels the mortgage loan, and the remaining 1,000 € will be used to pay the costs of the cancellation of the mortgage registration.


    How do I know what amount to withhold for mortgage cancellation fees?

    As already explained, in order to cancel a mortgage, we will need to grant a deed of cancellation of mortgage (whose cost is regulated by a rule, which is called Arancel de los Notarios, which you can find here HERE), to process its registration in the Land Registry (the cost of which is regulated by a rule, which is called the Land Registrars' Tariff, which can be found at HERE), as well as the fees that, in its case, the agency, the lawyer or the Notary's office designated for the processing of the document charges.

    That said, as these rules are complex to understand, and the specific fees of the agency, lawyer or notary, as processing, may vary depending on the professional chosen, to calculate the specific figure to be retained from the sale price, and to be used for the cancellation of the previous mortgage of the seller, we must attend mainly to the way we choose to get that cancellation. Thus:

    • If the management has been entrusted to the bank, it will be the bank's own agency that will determine the amount to be withheld, based on the estimate provided by the bank.
    • If the management has been entrusted to an agency or lawyer trusted by the buyer, it will be this agency or lawyer who will determine the amount to be retained, based on the estimate provided.
    • If the management is entrusted to a Notary Public trusted by the buyer, it will be this Notary Public who will determine the amount to be retained, based on the estimate provided.
    • If the management of the whole process is to be carried out by the buyer himself, he will have to calculate the cost of the deed and its registration. In this case, as it has been commented, we put at the disposal of the interested ones a calculator of the web of the Notary's office Jesús Benavides ( HERE) where they will be able to make the calculation they need.

    Does the seller bear the costs of the economic and registry cancellation of the previous mortgage loan?

    As it is logical, the economic cancellation of the living mortgage loan that encumbers the house that is being sold is paid by the seller, since it was he who requested that loan to acquire the house at the time, so it is he who must pay it by returning that money. However, as has been explained, this payment is not made directly by the seller, but it is the buyer who manages it, since it is he who retains part of the purchase price (which would correspond in principle to pay directly to the seller), for the purpose of achieving the economic cancellation of that previous mortgage loan, since logically, as the new owner, he is the interested party in releasing the burden of his property, to leave it free of encumbrances that may prejudice his property rights.

    With regard to thecancellation of the mortgage, the same rule applies, that is to say, the seller pays it, since it is a burden that he constituted on that property, and it is he who must bear the cost of its cancellation, but the payment is not made directly by the seller, but again, it is the buyer who retains part of the purchase price to pay for the costs of this cancellation (which mainly include the cost of the Notary, the Land Registry and the fees for processing the document), it is the buyer who retains part of the purchase price to pay the costs of this cancellation(which mainly include the cost of the Notary, the Land Registry and the fees for the processing of the document that may be charged by the agency, lawyer or notary to which the process is entrusted).


    Why is the buyer of the property responsible for the management of the cancellation of the seller's mortgage, if it is also the seller himself who assumes the costs?

    The reason why all the management is left in the hands of the buyer is that he is the most interested party in achieving the "disappearance" of the real right of mortgage in the Property Registry, since, as the new owner, he will want his property that he has just bought to be free of encumbrances.

    It is enough to think of the following example to understand this interest: "The buyer at the time of paying the purchase price makes sure that by paying directly to the banking entity he settles economically the pending debt that weighs on the property. The fact of making such payment and justifying it before a notary, gives him a position of more than sufficient security on the economic cancellation of the loan, but not of the cancellation of the mortgage. That is to say, in spite of having paid the debt, the mortgage will continue appearing on the property in the Registry as long as the opportune management is not made to erase it. Imagine that buyer and seller, either by word of mouth or expressly in the deed of sale itself, that the seller assumes the obligation to take charge of and pay for the cancellation of the mortgage, but in practice the seller never actually carries it out, because that means investing time and money. And he thinks... the property is no longer his property and he has already received the price. The buying party would be forced to chase the selling party to carry out such management, etc."

    Obviously, the most sensible thing to do is for the buyer not only to withhold from part of the purchase price the outstanding amount of the loan, but also the foreseeable amount of expenses for this cumbersome management. And in addition to retaining this amount, the buyer himself will have to worry about managing the corresponding cancellation of the registration. This leads us directly to the next question.


    Who is responsible for the management of the cancellation of the seller's prior mortgage?

    As indicated above, the registration cancellation of the seller's previous mortgage will be carried out by the buyer, who will pay it with those funds that he will have retained from the sale price. For this purpose, once the purchase and sale has been signed and, in that act, the outstanding loan has been economically cancelled as explained in the preceding question, the seller of the property, as the former debtor, will go to his bank to request the zero balance certificate, which is the document in which the creditor bank is satisfied with the principal obligation and consents to the cancellation of the registration of the charge. With this document, the seller will send it to the buyer (by e-mail, for example), and the buyer, now not only with the money withheld but also with the zero balance certificate in his possession, will activate the process of signing the mortgage cancellation deed and its registration in the Land Registry by one of the ways that have been explained in a previous question, but which, nevertheless, I remember:

    • Delegating the management to the agency of the former creditor bank (in this case, it seems an unlikely option, since the commercial relationship of that bank was with the seller, not with the buyer who is now managing the cancellation).
    • Entrusting the management to a lawyer or agency you trust.
    • Assuming the buyer himself all the management (less advisable option as explained above).
    • Delegating the management to the Notary that you have chosen (the normal thing is to entrust the management to the same notary that signs the deed of sale, since except for the certificate of zero balance, at the moment of the signature he/she would already have all the necessary documentation to activate the processing of this cancellation).

    Why is the zero balance certificate so important?

    As already explained, the zero balance certificate is a fundamental document for the whole process, since without it the mortgage charge cannot be cancelled. With this zero balance certificate, the former creditor bank certifies that the mortgage loan in question has been paid in full, that it no longer has anything to claim for this concept and that, therefore, it consents to the registration cancellation of the mortgage in the Land Registry. With this certificate of zero balance, is when the Notary Public can process the signature of the mortgage cancellation deed, and for this purpose contacts a representative of that financial entity, who, in view of the content of the certificate of zero balance, signs the mortgage cancellation deed, giving his consent, on behalf of the bank he represents, to cancel the mortgage in the Land Registry.

    In this particular case, as is logical, the zero balance certificate can only be obtained once the loan is already paid, so that on the day of signing, the buyer will settle the loan by paying the amount owed into the account of the creditor bank that appears on the certificate of outstanding balance at the date of the sale (as explained above in another question) so that, subsequently (e.g. on the following business day), the seller can go to his bank to request the zero balance certificate (since the bank will only give it to the seller, who is its client with the loan already paid), later (for example the following working day), the seller can go to his bank to request the certificate of zero balance (since the bank will only deliver it to the seller, who is his client holder of that loan already economically cancelled) and, once obtained the same one, he can deliver it personally to the buyer (or send it to him via email), so that the buyer can already manage the cancellation of the registration by the way that he has chosen.


    [Second scenario]

    "When you want to buy a house where the mortgage still appears in the Land Registry, but in reality the loan is already paid off financially." 

    On this occasion, the procedure to follow will be the same as that applied in the first case, but with the advantage that all this is simplified even more, since as the mortgage loan is already paid, the seller, simply, before the signing of the sale and purchase, must go to his bank, in order to receive the certificate of zero balance.

    Therefore, we will proceed as follows:

    • On the day of the signing of the deed of sale, the seller will deliver the zero balance certificate to the buyer so that he can manage the cancellation of the registration of the charge.
    • The cost of the cancellation of the registration of the previous mortgage that encumbered the sold property will be paid by the seller, as in the previous case.
    • This payment will not be made directly by the seller, but as in the previous case, it is the buyer who, from the agreed purchase price, deducts the cost of the cancellation of the registration, so that he retains it ("keeps it" for himself), to use that money to pay the cost of the cancellation of the registration of the previous mortgage.
    • The buyer, with this certificate of zero balance and with the money that has been retained from the sale price, will manage the cancellation of the mortgage, by the most appropriate way. 
    • The specific cost of the cancellation of the registration of the previous mortgage, as explained above in the first case, will depend on the route chosen by the buyer, and on the estimate provided for this purpose.
    • However, taking advantage of the fact that the buyer signs his deed of sale in a Notary, the most reasonable thing is that, if this one offers an adequate price for the management, he entrusts to the above mentioned Notary the signature of the deed of cancellation of mortgage and its inscription in the Registry of the Property, because in this way he gets that a single professional (that is to say, that Notary), manages the totality of the operation, that is to say, the sale and purchase and its inscription in the Registry of the Property, as well as the registry cancellation of the previous load, simplifying much more the procedure, that not if the tasks are disintegrated to make between different professionals. 
    • In any case, it should be remarked again that the seller, as he is the one who assumes the cost of the cancellation of the registration, has the right to look for a Notary Public of his confidence to sign the deed of cancellation of the mortgage (and, if applicable, to manage it), at a more economical cost than the one proposed by the buyer. If this happens, the buyer will be obliged to process the cancellation by this means.

    [Third scenario]

    "When you want to buy a home through financing from a new bank, and on that home there is already a mortgage loan pending cancellation from the seller."

    On this occasion, the procedure to be followed will be the same as in the first case, but with the following particularities:

    • In this case, the financial and/or registry cancellation of the previous mortgage loan will be assumed by the agency representing the bank financing the buyer.The buyer is the party interested in the cancellation of the prior charge, so that the property is encumbered only by the new mortgage granted to the buyer.

      In this regard, it is necessary to point out that the agencies that most commonly carry out this procedure are, among others:

      • BC Group
      • Tecnotramit
      • Tessi Diagonal
      • Garsa
      • Gesdeck
      • Gestoría Arnal
      • Etc.
    • Thus, from the total financing granted to the buyer, the bank in question will retain the corresponding amounts to cancel the previous mortgage loan financially and/or registry-wise, and will entrust this management to its own agency.
    • As far as the certificate of zero balance is concerned, the procedure will be the same as explained in the first case, that is to say, if there is a previous mortgage loan pending payment, on the day of the signature of the sale and purchase, it will be cancelled economically by means of a transfer, so that later the seller will go to his bank to request the certificate of zero balance. Once this certificate is obtained, it must be delivered to the buyer or to his agency so that the latter can manage the cancellation of the registration of the previous mortgage. On the other hand , if only the registration cancellation is necessary (because the loan was already paid), the seller must previously obtain the certificate of zero balance and deliver it to the buyer or his agency on the day of the signing, so that the latter can manage it.
    • The cost of the cancellation of the registration of the previous mortgage encumbering the property sold will be paid by the seller, as in the previous case.
    • This payment will not be made directly by the seller, but in this case, it is the agency of the bank that finances the buyer who, from the agreed purchase price, deducts the cost of the registration cancellation, so that it retains it ("keeps it" for itself), to use that money to pay the cost of the registration cancellation of the previous mortgage.
    • The specific cost of the cancellation of the registration of the previous mortgage, in this case, will be determined by the agency that represents the bank that finances the buyer, based on the estimate provided. On the same, it is necessary to specify that:

    • check
      As it is logical, it will be a provision of funds, that is to say, an approximation of the cost of the procedure, but not a closed budget. Thus, when the whole process is completed, in view of the real cost of all this (deed of cancellation and its inscription in the Registry), the final total cost of all this will be calculated and the provision will be liquidated, returning to the seller the amount that, if any, would have been left over.
    • check
      Likewise, it is necessary to specify that usually, the banks' agencies usually make high provisions of funds for this concept, to ensure that the cost of the procedure will be covered in any case, but as it has been finally indicated, once the exact cost of the whole procedure is known, the provision will also be liquidated and the surplus corresponding to the seller will be returned.
    • In any case, it should again be pointed out that the seller, as he is the one who assumes the cost of the cancellation of the registration, has the right to look for a Notary of his own confidence to sign the deed of cancellation of the mortgage (and, if applicable, its management), at a more economical cost than that which, if applicable, is proposed by the agency of the bank that finances the buyer. If this happens, the bank's agency must refer the signing of the deed to that Notary and, if applicable, the management, if so determined or, on the contrary, keeping the management in the hands of the appointed agency a posteriori.

    Conclusion

    Hoping that this article has resolved your doubts about what is the cancellation of a mortgage registration and what aspects should be taken into account when a real estate sale or purchase is made, we will now proceed to summarize the fundamental aspects discussed:

    1. When a mortgage loan is constituted to acquire a home, in reality two different legal acts or businesses are carried out, that is, a principal obligation, in the form of a loan, and in addition, a guarantee to ensure compliance with that obligation, which takes the form of a real right of mortgage.
    2. As a consequence of the previous statement, in the final life of a mortgage loan we can distinguish two major phases, namely, a first one, which is called economic cancellation, and which refers to the repayment of the money lent, and a second one, which is called registry cancellation, which refers to the need to eliminate from the Property Registry that charge, since the main obligation that it guaranteed has already been satisfied.
    3. In order to cancel a mortgage, it is necessary to previously grant before a notary a deed of cancellation of mortgage, in which a representative of the creditor bank certifies that the loan is already paid and that therefore the cancellation of the charge in the Property Registry is consented. Subsequently, it is necessary to register this deed in the Land Registry.
    4. It is also possible to obtain the cancellation of the mortgage through the statute of limitations. In this case, it is necessary that 21 years have elapsed since the term to pay the guaranteed loan should have ended, without the corresponding mortgage action having been filed in the Registry. If this is the case, cancellation may be obtained by means of a private request with notarized signatures.
    5. The cancellation of the mortgage registration is not mandatory, but it is highly recommended, since it allows leaving the property free of encumbrances, which will greatly facilitate its management in the future.
    6. The cost of the cancellation of the registration of the mortgage must be assumed by the debtor who constituted the mortgage on his property, and not by the financial entity that granted the loan.
    7. In order to be able to sign the mortgage cancellation deed, it is essential that you have the zero balance certificate. For this purpose, when you finish the payment of your loan, you must go to your financial institution to obtain this document, which must be delivered by your bank at no cost to you.
    8. When a property is sold, if there is an outstanding mortgage loan on the property, the buyer will retain part of the price to the seller in order to economically cancel the loan, as well as to manage the cancellation of the registration of the charge.
    9. If the buyer acquires the property with financing from a bank, and it is also necessary to manage the cancellation of the registration of a previous mortgage of the seller, the buyer will retain part of the price for this purpose, but the management will be carried out by the agency of the financing bank, in order to ensure that the previous charges are cancelled and that the first and only mortgage that encumbers the property is the new guarantee that is constituted in this sale and purchase. Without prejudice, that the seller also has the right to look for a Notary of his confidence, in which case the agency of the bank that finances the purchase will have to refer the operation to the above mentioned Notary.
    10. The entire process of a mortgage cancellation, except for unconventional situations, should take approximately one month at the most. However, as indicated above, much will depend on the path chosen to carry out such cancellation.

    I do not want to finish this article, without offering logically this service from my notary's office. Since 2014 I have been specializing in the comprehensive management of this type of document to provide the best possible service to the consumer.

  • check
    In case you are interested in processing your mortgage cancellation with us, you can do it automatically and digitally through the following link following step by step (HERE).
  • check
    If you just want to find out the actual costs of your mortgage cancellation in advance, you can use our calculator at the following link (HERE). You can also find more detailed information on our website in the service area.
  • check
    Finally, if you wish, you can contact us directly at the following address: cancelaciones@jesusbenavides.es. Behind this e-mail account there is a large team of professionals specialized in the field who will be able to answer any questions you may have.
  • I would like to dedicate this article to my late father, for following his advice:

    "Jesus, son, specialize in something, it doesn't necessarily have to be something difficult, something everyday, something that turns the cumbersome into something simple and, above all, that adds value by making things easier for people who don't have to know about it".

    Surely, he would have done a thousand times better than me. But they say it's the thought that counts. He always was, is and will be my reference to follow.

    December 2023

    1.- RENUNCIATION OF INHERITANCE AND VULGAR SUBSTITUTION. IF THE TESTAMENTARY DESIGNATION TO THE SUBSTITUTES IS GENERIC ("CHILDREN" OR "DESCENDANTS"), WITH THE SIMPLE AFFIRMATION THAT THESE DO NOT EXIST, IT IS ENOUGH TO FORMALIZE THE RENUNCIATION AND SUBSEQUENT ADJUDICATION TO WHOM IT CORRESPONDS:

    Attached (HERE) the Resolution of the DGSJFP of October 30, 2023 (BOE of November 22, 2023), where the DG resolves a case of an acceptance of inheritance of a woman, deceased widow, with two daughters, whom, in her will, she designated as heirs in equal parts, with vulgar substitution by their respective children or descendants. When the acceptance of the inheritance is formalized, one of the sisters renounces to the inheritance, and in the deed, the renouncing one simply states that she has no children or descendants (without proving it in any way), so that the other sister is awarded the whole inheritance. The Registrar denies the registration because he understands that the non-existence of children or descendants must be accredited (by notoriety deed or by any means valid in Law).

    The authorizing Notary appealed the qualification and the DG, aligning itself with the latter, revoked the qualification note, confirming that, when the testamentary substitution is made in a generic form (with expressions such as "children" or "descendants", that is to say, without nominative appeals), the simple manifestation of the non-existence of these is sufficient to formalize the renunciation and subsequent acceptance by the heir favored by said renunciation.

    2.- SALE OF LEASED PROPERTY. IT IS NOT NECESSARY TO PROVIDE THE TENANT'S WAIVER OF THE RIGHT OF FIRST REFUSAL IN ORDER TO REGISTER:

    Attached (HERE) the Resolution of the DGSJFP of November 8, 2023 (BOE of November 30, 2023), where the DG resolves a case of a sale and purchase of leased real estate (premises), in whose deed the Notary certifies that he has been shown a deed where the lessee waives his right of preferential acquisition recognized by the LAU.

    The Registrar denies the registration, alleging that it is necessary that he also be accredited, with evidence, the details and circumstances of the waiver (providing a copy of the waiver deed where the Registrar can analyze its terms, the legitimacy of the person granting it, etc.). The DG revokes the qualification note, considering that the Notary's attesting that the lessee has waived his right of first refusal is sufficient, since the Law does not attribute powers to the Registrar to qualify the terms of such waiver.

    3.- IN CATALONIA THE PRE-LEGATEE CAN TAKE POSSESSION, BY HIMSELF, OF THE PRE-LEGACY ASSETS:

    Attached (HERE) the Resolution of the DG de Dret, Entitats Jurídiques i Mediació de Catalunya of October 27, 2023 (DOGC of November 8, 2023), where a case is resolved regarding an acceptance of inheritance with several co-heirs, where one of them, in addition, being a pre-legatee of a property, accepts his part of the inheritance and, also, unilaterally, is awarded said property that forms the pre-legatee. The Land Registry refuses the registration on the grounds that, in order for such adjudication to take effect, the agreement of all the heirs is necessary.

    The authorizing Notary Public appeals and the DG, aligning itself with the latter, revokes the qualification note, recalling that, in accordance with the CCCat (art. 427-22), the legatee can take possession of the legacy himself if it is a pre-legacy.

    4.- SALE AND PURCHASE WITH RESOLUTORY CONDITION IN CATALONIA. INTERPRETATION OF THE PERCENTAGES OF NON-PAYMENT NECESSARY TO TERMINATE THE CONTRACT:

    Attached (HERE) the Resolution of the DG de Dret, Entitats Jurídiques i Mediació de Catalunya of November 10, 2023 (DOGC of December 1, 2023), which resolves a case related to a deed of termination of sale, in accordance with an agreed and registered resolutory condition, due to the non-payment of amounts owed.

    In this case, the DG establishes the correct interpretation of article 621-54 CCCat, by virtue of which, in order to terminate the sale and purchase due to non-payment of the deferred amounts (so that the sellers recover the ownership of the property) it is necessary that the unpaid amounts exceed 15% of the full price (total price of the sale and purchase), so that, only once unpaid amounts have accumulated that exceed 15% of the total purchase price, the sale and purchase can then be terminated.

    5.- ARE REGISTRABLE THE AGREEMENTS OF A GENERAL MEETING TO WHICH THE ADMINISTRATORS DO NOT ATTEND:

    Attached (HERE) the Resolution of the DGSJFP of November 15, 2023 (BOE of December 4, 2023), where the DG resolves a case of a General Meeting of Shareholders to which, the administrators of the company do not attend.

    The Mercantile Registrar refuses the registration of the resolutions adopted, for this reason, under Article 180 of the LSC ("the administrators must attend the general meetings"). The Notary appealed the qualification, and the DG, aligning itself with the latter, confirmed that, in effect, the non-attendance of the administrative body at the general meeting is not a reason for the nullity of the same, but what, if any, will generate the liability of the administrators provided for in article 236 LSC.

    NOTARIAL MINUTES OF THE MEETING. IN ORDER TO BE ABLE TO REGISTER THE PREVENTIVE ANNOTATION IN THE MERCANTILE REGISTRY, IT IS NECESSARY TO PROVE THAT THE NOTARIAL REQUEST TO THE ADMINISTRATORS HAS BEEN MADE:

    Attached (HERE) the Resolution of the DGSJFP of November 14, 2023 (BOE of December 4, 2023), where the DG resolves a case of refusal of preventive annotation of request of notarial minutes of meeting, in the Mercantile Registry. In this case, a shareholder wants the notarial minutes of a general meeting to be taken and, to this end, sends an email to the chairman of the board of directors requesting this, who replies in the affirmative. Said shareholder tries to have the preventive annotation made in the Mercantile Registry on the basis of this Email, and the Registrar denies it, stating that for it to be possible to register the preventive annotation, it is necessary to provide the notarial request to the administrators.

    The DG confirms the qualification note and reminds that, in order to be able to practice the preventive annotation that is sought, it is necessary to prove that the notarial requirement has been made to the administrators (art. 104.1 RRM).

    7.- SALE OF REAL ESTATE BY RELIGIOUS CONGREGATION:

    Attached (HERE) the Resolution of the DGSJFP of October 23, 2023 (BOE of November 22, 2023), which may be useful in this case of transfers, as it summarizes and analyzes in detail the legislation and documentation necessary to formalize the sale of a property belonging to a religious congregation.

    8.- ELEVATION TO PUBLIC DEED OF THE LEASE CONTRACT SUBSCRIBED BY THE PREVIOUS OWNER OF THE PROPERTY:

    Attached (HERE) the Resolution of the DGSJFP of October 2, 2023 (BOE of November 2, 2023), where the DG resolves an appeal filed against the refusal of the registration of a deed of elevation to public of a lease contract.

    Lease agreement entered into by the previous owner (as lessor) and a lessee. The owner does not pay the mortgage loan that encumbers the leased property and this, finally, is subject to foreclosure, in which process, the property is awarded to a third party, in favor of which the property is currently registered. In this foreclosure process, the new owner who is awarded the property is aware that the same is leased, and the award, in the judicial process, is granted safeguarding the rights of said lessee. Subsequently, the lessee tries to register his right, and the Registry denies it for lack of successive tract (art. 20 LH), that is to say, that the person who signed the lease as lessor does not coincide with the current registered titleholder.

    The DG revokes the qualification, considering this case an exception to the general principle, since in the foreclosure proceeding in which the current registrant was a party, the tenant's right to occupy the property was safeguarded.

    9.- HORIZONTAL PROPERTY. FROM PRIVATE ELEMENT TO COMMON ELEMENT. THE CORRECT WAY IS THE AGREEMENT OF AFFECTATION AND CONVERSION INTO COMMON ELEMENT:

    Attached (HERE) the Resolution of the DGSJFP of November 14, 2023 (BOE of December 4, 2023), where the DG resolves an appeal filed against the refusal of the registration of a deed of segregation of a private element and subsequent sale in favor of the community of owners (to convert it then in common element of the horizontal property).

    The DG confirms the defect and, in summary, tells us that if you want to convert something private into a common element, the correct way is not its sale in favor of the community, but its configuration as a common element, modifying the description of the building, and with the unanimous agreement of the community of owners as it affects the constitutive title.

    10.- NEW FUNCTIONALITIES IN THE ELECTRONIC HEADQUARTERS OF THE TAX AGENCY OF CATALONIA:

    New features are summarized (HERE) and improvements in the electronic headquarters of the ATC:

    Tax on property transfers and documented legal acts (ITPAJD): New features have been incorporated in the telematic forms for forms 600 and 620 and in the help program for forms 650 and 660:

    • Adaptations to the telematic form of the ITPAJD model 600 to admit foreign transferors without tax identification number in transactions at the DRG rate (guarantee and loan rights in rem).
    • Adaptations to the telematic form model 620, sale and purchase of certain used means of transport, to allow exporting the self-assessment and recovering its data when there is more than one acquirer, in the case of the purchase of a boat, and to show separately the types of motorhome vehicle.

    Regarding inheritance and gift tax (ISD):

    • Adaptations of the inheritance modality aid program to introduce current or savings account deposits with IBAN format.

    Likewise, the automated incorporation of the public deed in the ITPAJD (form 600) and ISD (forms 650, 651 and 653) self-assessment files has been introduced . Therefore, it is no longer necessary for the citizen to provide the public deed if the notary's office has previously sent the notarial informative declaration to the Tax Agency of Catalonia.

    11.- LCI MINUTES. IT IS NECESSARY TO ASK THE CLIENT HOW HE WANTS HIS FUTURE AUTHORIZED COPIES OF BOTH THE MORTGAGE LOAN AND THE SALE AND PURCHASE:

    Attached (HERE) Note from the Board of Directors of the Notarial Association of Catalonia in which, in response to a communication received in several notaries' offices from the bank ING (requesting that all copies of their CV + PH deeds be issued in electronic format), it is indicated that, in the CV + PH, it is the buyer (who pays for the deed) who must choose the format of their authorized copies (paper or electronic).

    For this purpose, it is recommended to ask the client about this issue in the pre-LCI minutes, record it in the minutes, and based on the client's preference, issue the copy as requested by the acquirer.

    12.- INSTRUCTION FOR THE VERIFICATION OF REAL ESTATE VALUES 2024:

    Attached (HERE) the Instruction for the verification of real estate values of the Tax Agency of Catalonia for taxable events (ITP, Inheritance and Donations) for the year 2024.

    It should be remembered that this table is of vital importance when we do not have the reference value of the cadastre of the property in question. Always, in the first place, the reference value for tax purposes must be taken into account. Suppletory, in the absence of this, this table will continue to be used as it was traditionally done. Multiplying the cadastral value by the corresponding multiplier coefficient, in order to obtain the minimum tax value.

    13.- HORIZONTAL PROPERTY AND SEGREGATION / DIVISION OF PRIVATE ELEMENT. IF THE STATUTES ALLOW IT, THEY ALSO, IMPLICITLY, AUTHORIZE THE NECESSARY WORKS TO EXECUTE IT:

    Attached (HERE) the Resolution of the DGSJFP of November 2, 2023 (BOE of November 30, 2023), where the DG resolves a case related to a segregation of a local, resolving that, when in the constitutive title of the horizontal property the possibility of segregating or dividing privative elements is foreseen without need of collective agreement of the owners' meeting, implicitly the works and modifications that this segregation needs are being authorized, unless express clause to the contrary.

    14.- SALE OF HABITUAL RESIDENCE OF THE FAMILY. THE CONSENT OF BOTH SPOUSES IS REQUIRED, ALSO FOR FOREIGNERS:

    Attached (HERE) the Resolution of the DGSJFP of October 25, 2023 (BOE of November 22, 2023), where the DG resolves a case of a sale of a property belonging to a foreigner, resolving that the application of article 1320 CC (and therefore its counterpart in the Catalan civil code) regarding the need for consent of both spouses to dispose of the habitual residence of the family, is independent of what the governing law of the matrimonial property regime provides, and that according to the Regulation 24 June 2016, it is also applicable to foreign marriages.

    15.- IMPORTANT DISTINCTION BETWEEN PARTITION MADE BY THE TESTATOR AND PARTITIONAL RULES:

    Attached (HERE) the Resolution of the DGSJFP of October 27, 2023 (BOE of November 22, 2023), where the DG resolves a case related to a deed of acceptance of inheritance and hereditary adjudications, in which, synthesizing the jurisprudence of the Supreme Court in this matter, it clarifies the important differentiation between a partition made in the will itself and the mere "partitional rules".

    The Center points out that when the testator carries out in the will all the partitional operations (inventory, appraisal, liquidation and adjudication of lots) we are dealing with a true partition made in the will. On the other hand, when the testator limits himself to expressing his will so that at the time of the partition, certain assets are awarded to each heir in payment of his assets, we are dealing with mere partition rules.

    November 2023

    1.- BE VERY CAREFUL. ERRORS IN NOTARY'S OFFICE THAT GENERATE CIVIL LIABILITY:

    Attached (HERE) a Note from the General Council of Notaries, detailing the main claims that the Civil Liability Insurance for Notaries is having to deal with in the event of negligence, errors or professional malpractice. Below are some outstanding examples:

    • Various complaints regarding authorized documents with persons with impaired mental capacity. Exercise extreme caution with elderly persons showing signs of cognitive impairment, incapacitated / with support measures for the exercise of legal capacity, under guardianship, conservatorship, etc.  
    • Identity theft. Be extremely diligent when verifying the identity of the person with his/her ID / NIE / Passport, etc. photo.
    • Verification of mortgage encumbrances. Take extreme precautions with mortgages that have been economically cancelled, but not registered. Require documentary proof that the secured loan has been paid.

    2.- NEW REMINDER. NEW DEVELOPMENTS IN FOREIGN INVESTMENTS:

    Attached (HERE) an OCP informative note with a summary of the main novelties of Royal Decree 571/2023, on foreign investments. The following are considered as foreign investments:

    Foreign investments in Spain:

    • Participation of a NON-RESIDENT in Spanish companies exceeding 10% of the capital stock.
    • Acquisition of real estate in Spain by NON-RESIDENTS in excess of 500,000 euros.
    • In the event that the funds used in the investment originate in non-cooperative jurisdictions, prior declaration is required. The order of February 9, 2023 (HERE) contains the list of non-cooperative jurisdictions.

    Spanish investments abroad:

    • Participation in the capital of non-resident companies exceeding 10% of the capital stock.
    • Acquisition of real estate located abroad for more than 300,000 euros.
    • In the event that the destination of the investment is a non-cooperative jurisdiction, the prior declaration is also required.

    Obligations of the Notary:

    • When the regulatory development of the Royal Decree comes into force, it will be mandatory for the Notary to send the information on the foreign investment to the General Council of Notaries.
    • During the transitional period, the telematic filing of tax returns is done through AFORIX.
    • The obligation of the notary public to send to the Directorate General for International Trade and Investments, in writing, during the months of January and July of each year, a list of those intervened transactions considered as foreign investment, during the preceding six-month period for which the notary public has not been requested to submit the corresponding declaration, remains in force.

    3.- IT IS POSSIBLE TO DECLARE THE END OF WORK PARTIALLY IN A HORIZONTALLY DIVIDED BUILDING:

    Attached (HERE) the Resolution of the DGSJFP of September 19, 2023 (BOE of October 26, 2023), where the DG solves a case of a building, with several floors, divided horizontally, where the end of work of only part of them is declared (specifically, the first floor and the second floor, not the rest of the floors).

    In this case, the DG accepts this, stating that there is no inconvenience in that the proof of completion of the work may be partial, by phases, and even by floors; since it may happen in practice that there are unfinished elements, without this obstructing the registration of the completion of others, as long as it is duly accredited.

    4.- PARTITION OF INHERITANCE BY ACCOUNTANT PARTITIONER. CARE WITH THE CONFLICTS OF INTEREST:

    Attached (HERE) the Resolution of the DGSJFP of September 5, 2023 (BOE of October 25, 2023), where the DG resolves that in a deed of acceptance, partition and adjudication of inheritance, the accountant-partidora has not limited herself to the strictly partitional and, in the adjudications, has carried out dispositive functions that require the intervention of the heirs.

    In addition, there is a conflict of interest between two sibling co-heirs, since one is the guardian of the other, and therefore exercises his legal representation. As both of them are interested in the inheritance, and one of them is legally represented by his brother, there is a conflict of interests and in this case the intervention of a legal defender is necessary.

    5.- SALE OF PARKING SPACE IN AN UNDIVIDED PROPERTY. IT IS NECESSARY TO DESCRIBE CONCRETELY THE PARKING SPACE:

    Attached (HERE) the Resolution of the DGSJFP of July 28, 2023 (BOE of October 12, 2023), where the DG resolves a case of sale of an undivided participation (1.329%) of a property, destined to parking of vehicles. The deed contained the description of the registered property as a whole (consisting of the basement floor of a building intended for parking and storage rooms), but not the description of the specific parking space whose exclusive use and enjoyment was attributed to the undivided interest of the transferred property.

    The DG, aligning itself with the Registrar, considers that it is necessary that, in the deed of sale, the boundaries and surface area of the parking space to be transferred be described in detail.

    6.- LAND REGISTRY AND LAW 11/2023. NEW DEADLINES FOR QUALIFICATION OF DOCUMENTS:

    Attached (HERE) the Resolution of the DGSJFP of July 7, 2023 (BOE of August 15, 2023), which approves the schedule for implementing the law 11/2023 of digitalization of registry actions. This law establishes the electronic signature of all registry entries and documents and the keeping of a protocol in electronic format. The aforementioned resolution includes two annexes with a schedule for the implementation of the electronic signature in each of the Land Registries of Spain, and extends the ordinary term of registry qualification from 15 working days to 30 working days, for a period of one month from the date on which the implementation of the digital actions begins.

    Attached to the summary is the resolution with the annexes containing the respective starting dates of the electronic signature implementation phase, so that all employees of the notary's office can consult them and take into account that within one month from that date, the qualification period is not 15 days as usual, but 30.

    The importance of this consultation lies in the fact that cancellations of mortgages registered in all the registries in Spain are authorized, and each of them has a date foreseen for the implementation of this electronic signature!

    7.- CIVILIAN CITIZENSHIP AND ITS DIFFICULTIES OF PROOF. IT IS NECESSARY TO GIVE MUCH IMPORTANCE TO THE MANIFESTATION THAT IS INCLUDED IN THE DEED:

    Attached (HERE) the Resolution of the DGSJFP of October 3, 2023 (BOE of November 2, 2023), where the DG solves a case related to the proof of the civil residence of a deceased and its importance to determine the applicable inheritance law.

    In this case, the deceased, in her will, states that she has common civil status. However, her heir (husband), when accepting the inheritance, in said deed of acceptance states that the civil domicile of the deceased was that of Ibiza, and based on the same, he is awarded the entire inheritance (unlike this, if the civil domicile were common, as the deceased had no descendants, but did have living ascendants, these would be legitimaries). When this deed of acceptance of inheritance is presented for registration, the Registrar rejects it, considering that the manifestation of the common civil tenancy made by the deceased in her will prevails.

    The DG, aligning itself with the Registry, considers that the proof of the civilian citizenship is very difficult (except in those cases in which the express manifestation is registered in the Civil Registry). Therefore, in case of doubts, the declaration of the interested party made before a Notary Public (since it has been made being duly informed by the notary public) must prevail, even over what may result from extrajudicial documents (such as a census certificate from which it is clear that the person has been registered at that address for more than 10 years), since administrative residence does not always coincide with the actual address (which is what determines civil residence).

    8.- THE ADMINISTRATOR WITH EXPIRED OFFICE CAN CALL THE GENERAL MEETING FOR THE RENEWAL OF THE ADMINISTRATIVE BODY AND TO PRESENT ANNUAL ACCOUNTS:

    Attached (HERE) the Resolution of the DGSJFP of October 31, 2023 (BOE of November 21, 2023), in which the DG resolves that the General Meeting convened by an administrator with expired office is valid, provided that such General Meeting is convened to renew the administrative body and to approve the annual accounts of several fiscal years as a way to overcome the closing of the Land Registry.

    9.- PREVENTIVE POWERS AND INTERREGIONAL ASPECTS:

    The following is a brief summary of a paper on preventive powers and aspects to be taken into account in the field of inter-regional law:

    • Great usefulness of the preventive power of attorney: it avoids the family having to resort to judicial support measures (which take more than a year to set up, plus the cost of lawyers, etc.).
    • Soon it will be possible to consult telematically, in the Civil Registry, the validity of these powers of attorney. Caution to be taken into account whenever an attorney-in-fact goes to the Notary to sign with one of these powers of attorney.
    • Doubts about applicable law when a client goes to a notary to sign a preventive power of attorney: We must always resort to the criterion of the habitual residence (art. 9.6 Cc) to constitute the power of attorney under the CCCat or the Cc.
    • Always remember to include (or not), at the client's request, the clause on whether judicial authorization is required for the same acts for which it is required by the guardian.
    • In Catalonia, in the next few months, there will be relevant developments in this matter, since the draft bill to reform Book II of the Catalan Civil Code on this matter will soon enter the Parliament as a Bill, so that, if it is processed ordinarily, in a few months there will be a new regulation on this matter with very deep modifications that we will have to study in order to adapt the deeds.

    LAW 11/2023. DIGITALIZATION OF NOTARIAL AND REGISTRY ACTS (ELECTRONIC PROTOCOL, VIDEO SIGNATURES and ELECTRONIC AUTHORIZED COPIES):

    Attached is an article from our BLOG summarizing the 10 main points of the entry into force of Law 11/2023 (HERE).

    There are three main changes that will affect our daily lives:

    • The first is the deposit of all the signed documents in the electronic notary's office, being a faithful reflection of the paper document (matrix, united, diligences and notes).
    • The second major change is the possibility of video-signing certain types of documents with a digital certificate once the citizen is registered in the notarial portal;
    • and finally, the creation of electronic authorized copies that replace paper with the same effectiveness and validity.  

    After 21 days of implementation we have encountered the following casuistry:

    REGARDING THE NOTARIAL PORTAL (PNC):

    • Citizens who wish to carry out procedures must fill in the form and validate their cell phone and contact email address. The procedure is simple and is completed by uploading the identity document to the platform. We have validated it and it works correctly for citizens identified with DNI, NIE and PASSPORT.
    • The most practical way to access and sign is to use a digital certificate. We recommend that of the Fábrica Nacional de Moneda y Timbre, although there are several issuing entities certified by Ancert.
    • The accessing citizen will be able to consult all his deeds history between January 1, 2007 and November 8, 2023. The deeds signed after the entry into force of the law are yet to be published.

    AS FOR THE VIDEO SIGNATURE:

    • Since the beginning we have been able to successfully perform 2 video signatures . Although it is a very new technology and has its limitations, it has not been complex to perform once the client is registered in the portal and has the digital certificate to sign.
    • The connection is made with an application integrated in the web browser and is intuitive and simple. We expect that as citizens register, the number of documents granted by this method will increase.

    REGARDING THE ELECTRONIC AUTHORIZED COPY:

    • We have already issued the first electronic authorized copies with secure verification code (CSV).
    • The process is managed from Word itself and in parallel to the deposit of the document, although it can be issued at a later date, always for documents signed after November 9, 2023.
    • The document is published in the notary's electronic office and the CSV is generated quickly and easily in SIGNO to be sent to the client.
    • Once uploaded to the electronic site, it is shared with the client by means of an e-mail in which we provide a link to its electronic authorized copy. This delivery method provides authenticity and legal validity before third parties. We believe that little by little it will replace the paper because for its consultation and validation it is not necessary to be registered in the notary portal of the citizen.

    most frequent doubts about electronic protocol and video signature:

    In SIC, within the section "Law 11/2023. Digitalization of notarial and registry actions" you can find a document with questions and answers about existing doubts in relation to the implementation of Law 11/2023, two publications have been issued: volume 1 and volume 2.

    Also attached (HERE in singular and HERE plural), basic templates for any electronic deed granted by video signature through the Notarial Citizen Portal.

    MODIFICATION OF THE SINGLE COMPUTERIZED INDEX. NEED TO REPORT SEPARATELY THE NUMBER OF PAGES ON PAPER / TELEMATIC SUPPORT:

    As of November 9, 2023, the Single Computerized Index is modified to incorporate as a mandatory field to be reported in each public instrument the number of pages of the paper support matrix separately from the number of pages in the electronic support.

    For any questions regarding the new digitalization (both employees and customers), please contact Antonio Alba for resolution by e-mail: antonio@jesusbenavides.es

    October 2023

    1.- CENTRAL REGISTRY OF REAL PROPERTY. EXPLANATORY NOTE

    Attached (HERE) clarifying note from OCP on several issues related to the Central Registry of Real Estate Titles and the obligations of the Notaries in this respect:

    • For the granting of the legal transaction, obtaining the e-mail address referred to in Article 4 of RD 609/2023 is not a requirement of validity, since it is not part of the identification requirements of the beneficial owner.
    • Percentage of ownership: this information should only be included when a new manifestation record has to be made in the event of a discrepancy between the content of the BDTR and the grantor's manifestation.

    PURCHASE AND SALE OF REAL ESTATE FORMALIZED BY A REPRESENTATIVE WITH REVOKED POWER OF ATTORNEY. BE VERY CAREFUL WHEN VERIFYING THE VALIDITY OF POWERS OF ATTORNEY AND CORPORATE POSITIONS.

    Attached is the Resolution of the DGSJFP of July 26, 2023 (BOE of September 28, 2023).. The DG resolves a case of a CV of a real estate, in which the seller is represented by an attorney-in-fact, stating that his power of attorney is in force, and the Notary, giving his positive sufficiency judgment in the deed. However, from the data in the Mercantile Registry, it appears that this power of attorney was revoked a few days ago, the revocation having been published in the BORME, once registered in the Registry (from which moment it is enforceable against third parties), on the same day of the signing of the CV.

    The DG confirms the qualification of the Registry, so that the buyer's right cannot be registered since the seller was not duly represented by a person with sufficient powers to formalize the sale.

    To take into account the case and make the pertinent consultations at the Registry as close as possible to the signing of the deed (if possible, on the same day), in order to avoid such cases.

    3.- SL. CAPITAL REDUCTION DUE TO THE PURCHASE OF SHARES. AMOUNT OF THE RESTRICTED RESERVE

    Attached is the Resolution of the DGSJFP of July 24, 2023 (BOE of September 27, 2023).. The DG resolves the typical case of "exit" of a partner of a SL. To do so, the company repurchases all the shares of that shareholder (for a redemption value higher than the nominal value) and then reduces the share capital by the same amount (thus proceeding to its amortization) and, also, endow a restricted reserve, for the amount of the reduction (taking as a reference the nominal value of the shares, and not the value reimbursed to the shareholder, which as indicated, is higher), to guarantee the rights of the creditors.

    The Registry qualifies negatively because it considers that the amount of the reserve must be equal to "the value of what was received by the partner" (i.e., the total amount reimbursed, and not only the nominal value of the units).

    The DG revokes the Commercial Registrar's qualification, determining that in these cases the amount of the restricted reserve must be equal to the nominal value of the redeemed shares, and not to the amount reimbursed to the outgoing shareholder.

    DE FACTO GUARDIANSHIP. INTERPRETATIVE DOCUMENT FOR BANKING PROCEDURES

    It is reported that in SIC, within the link "Law 8/2021 in support of disability" a framework protocol signed between the State Attorney General's Office and the banking sector is made available to employees to clarify the powers of the de facto guardian in the field of banking transactions.

    This document has also been the subject of a detailed analysis in an article in our blog (HERE you can read it).

    5.- FOREIGN INVESTMENTS. NEW REGULATIONS TO BE TAKEN INTO ACCOUNT

    Staff is informed of the recent approval of Royal Decree 571/2023, of July 4, on foreign investments (HERE you can consult it), which must be taken into account when entering into transactions with non-residents. Specifically, it modifies the previous regulations in the following fundamental aspects:

    1.- The following are considered foreign investments for the purposes of making the corresponding subsequent declaration to the Investment Registry of the Ministry of Economy:

    • Participation by non-residents in Spanish companies when such participation exceeds 10% of the capital stock or of the voting rights of the company (previously the participation was required to be 50%).
    • Acquisition of real estate in Spain by non-residents when the amount exceeds €500,000 (previously the minimum limit was €3,000,000).

    In these cases the non-resident holder is obliged to declare the investment before the Investment Registry of the Ministry of Economy, using the forms resulting from Transitional Provision 3 of the Royal Decree (forms DP1, D1A D1B, DP2, D2A, D2B).

    2.- If the transaction has been intervened by a Notary Public, he/she must communicate the investment to the General Council of Notaries through the notarial electronic office (SIGNO) and, in any case, must warn the person appearing of the obligation of presentation.

    In the case that the investments considered foreign (in accordance with article 4 of the Royal Decree), have origin in a country of non-cooperative jurisdiction (former tax havens), which are those included in the Order of February 9, 2023, it will be necessary to make a prior declaration and the Notaries must demand it before the granting, and expressly warn of it in the public document.

    6.- PRACTICAL NOTES ON DOCUMENTS INVOLVING FOREIGNERS

    Attached (HERE), an interesting article by a fellow Notary, where a series of practical reflections to be taken into account when a foreign individual is involved in a public document. By way of summary, the most relevant ones are highlighted:

    • Identification. The general rules of the Notarial Regulations apply. Specifically, in the case of EU foreigners, this is done either through their passport or their national identity card.
    • NIE: Foreigners who, due to their economic, professional or social interests, are related to Spain, must be provided, for identification purposes, with a personal, unique and exclusive sequential number. This number is necessary for all operations with tax implications.
    • Translation: Unless the notary knows the foreign language, the provisions of Article 150 of the Notarial Regulations must be complied with and an interpreter must be requested.
    • Means of payment: Be very careful and diligent with regard to money laundering prevention. It is highly advisable to demand that the deposit and payment accounts be in Spanish banks. If there are foreign banks or accounts of third parties, the most complete and reliable information possible about the origin of the funds will be required, requiring documentary justification (certificates of ownership of the accounts, contracts justifying the origin of the funds, etc.).
    • Apostille: It is essential to have an apostille for documents issued abroad.
    • Real estate transactions. Remember the withholding of 3% of the price (Non-Residents Income Tax) and the inversion of the taxpayer in the "municipal capital gain".

    7.- REQUEST FOR COPIES OF WILLS TO THE ARCHIVES OF THE NOTARIAL ASSOCIATION OF CATALONIA

    Information of interest when requesting copies of wills from the College. In order to avoid problems in case of discrepancies in dates, the College requests that, when a copy request is submitted, the corresponding death and last will certificates be attached to the request for a copy of the will in order to more accurately identify the request.

    8.- TELEMATIC SIGNATURE OF NOTARIAL DOCUMENTS. ENTRY INTO FORCE

    As previously reported, next November 9, Law 11/2023 will enter into force, which will allow the telematic signature of public documents (that is, through a videoconference system with the Notary and electronic signature, without the need for the client to physically go to the Notary's office). HERE you can find an article in the blog of Jesus Benavides' Notary's office with more details (which documents can be signed, procedure, etc.).

    In order to be pioneers with this novelty and give the best service to the clients, a new section has been created in the web page of the Notary's office of Jesus Benavides (Video signature) where, by means of didactic videos, the whole process to be followed by any citizen who wants to put this possibility into practice is explained.  

    For any questions in this regard (both from employees and customers), please contact Antonio Alba for resolution at his e-mail address: antonio@jesusbenavides.es.

    September 2023

    1.- COMPUTATION OF DEADLINES FOR HOLDING THE GENERAL MEETING. THE DAY ON WHICH THE MEETING IS HELD CANNOT BE INCLUDED IN THE COMPUTATION.

    Attached is the Resolution of the DGSJFP of July 11, 2023 (BOE of July 28, 2023).. According to it, and by way of summary, the DG reminds us of the rules for calculating the deadlines for the call of a general meeting in a capital company. As is well known, article 176 LSC determines that one month (SA) or 15 days (SL) must elapse between the call and the holding of the general meeting. For the computation of these periods, the starting day begins on the day on which the notice is sent to the last of the shareholders and, in order to determine the day on which the period ends, the day on which the general meeting is held cannot be computed.

    Therefore, one month must elapse for corporations and 15 days for limited liability companies, and it is the day after these deadlines when the General Meeting can be validly held.

    2.- DOCTRINE OF THE GENERAL DIRECTORATE ON TARIFF MATTERS

    Attached (HERE) an interesting document containing a summary of the doctrine of the General Directorate of Legal Security and Public Faith, in tariff matters, for the years 2020 - 2023. To consult in case of doubts on how to minute specific deeds.

    3.- NEW DEVELOPMENTS IN THE SINGLE COMPUTERIZED INDEX

    It is reported that, recently, the Single Computerized Index has included a series of new features to improve the reflection of the legal transactions that are granted in public instruments.

    Specifically, new legal acts are created to duly collect:

    • Acts of acquisition or preservation of civilian citizenship.
    • Deeds of support measures and assistance constitution deeds (and their equivalent in Catalonia),
    • Minutes of omission of protocol or Registry Book number (to solve the unfortunate case that one or more numbers remain without a document actually authorized or intervened).

    Other minor modifications:

    • Proof of the means of payment in the deposit records.
    • Specification of the ownership (or not) in the sale and purchase of shares and stocks.
    • Incorporation of entities with or without legal personality, where the information of their Tax Identification Number is required (if the information is obtained after the granting and it has not been possible to obtain it from the client, when the deadline for submitting the index has expired, the lifting of the rule must be requested through the usual channel).

    4.- THEORY OF THE COMPLEX LEGAL BUSINESS. PURCHASE + MORTGAGE OF REAL ESTATE BY MARRIED PERSON. THE CONSENT OF THE OTHER SPOUSE IS NOT NECESSARY IF THE MORTGAGE IS MADE SIMULTANEOUSLY WITH THE PURCHASE. CARE IN CASE OF FOREIGNERS

    Attached (HERE) an interesting article summarizing the doctrine of the DG on the theory of the complex legal business. It deals with cases where a married person buys a property alone, and then mortgages it. As it is known, the general rule determines that, in order to mortgage the habitual residence, even if it belongs to only one of the spouses, the consent of the other spouse is necessary. As an exception to this general rule, the theory of the complex legal business arises, by virtue of which, the consent of the non-owner spouse is not necessary in the constitution of mortgage on the habitual residence immediately after its purchase, that is to say that the mortgage is signed with the number immediately after the protocol number of the purchase-sale.

    In the case of foreigners, BE CAREFUL, since the DG does not admit the doctrine of the complex legal business, unless that foreign law allows it and it is so accredited (therefore, it must be verified by means of a report of the notary if the foreign law that governs the specific matrimonial regime of the clients admits or not this theory of the complex business).

    5.- PUBLIC NOTARIZATION OF CORPORATE RESOLUTIONS. A GOOD DEED CAN SAVE A BAD CERTIFICATE

    Attached is the Resolution of the DGSJFP of July 10, 2023 (BOE of July 28, 2023).. According to it, and by way of summary, the DG determines that, in the context of an elevation to public of corporate resolutions of an SL (cessation and appointment of positions), if the certificate does not indicate the quorum for adoption of the resolutions, but in the deed it is specified (through a statement of the administrator), this is sufficient to register the agreement in the Commercial Registry.

    6.- PRIOR IN TEMPORE, POTIOR IN IURE. WHAT ARRIVES FIRST AT THE REGISTRY, IS WHAT PREVAILS (EVEN IF THE LAW IS LATER).

    Attached is the Resolution of the DG of Law, Legal Entities and Mediation of July 17, 2023 (DOGC of July 31, 2023).. According to it, and by way of summary, the DG determines that what accesses first to the Registry, is what prevails.

    A case in which, in 1986, by means of a private document, a life usufruct on a property is constituted. Subsequently, on 02/09/2023, this private document is elevated to public deed and is presented for registration in the Land Registry. However, the Registrar refuses the registration, since on 02/03/2023, that is, 6 days before, a deed of bequest was presented for registration, in which this right of usufruct is awarded to a third party, on the basis of an acceptance of inheritance of a person deceased in 2022.

    In this case, the DG recalls the basic principle of operation of the Registry, i.e., prior in tempore, potior in iure, so that what arrives first at the Registry and is registered (usufruct of 2022 presented on February 3, 2023), prevails over the other rights (in this case, a usufruct constituted in private document in 1986 and presented for registration on February 9, 2023 on the basis of a deed of elevation to public deed).

    7.- TABLE OF REGULATIONS ON NATIONALITY AND MARITAL STATUS

    Attached (HERE) an interesting document that includes a table of regulations on nationality and civil status, where we can find links to regulations and Resolutions of the General Directorate on various matters such as Civil Registry, certifications, economic regime of marriage, etc.

    8.- NATIONALITY OATH. VARIOUS ISSUES TO BE TAKEN INTO ACCOUNT

    Attached (HERE) Circular of the DG regarding the competence of the specific Civil Registry where to formalize the declaration of option of the Spanish nationality, as well as the oath or promise. In the same one it is established that the competence will correspond to the Civil Registry Office of the applicant's domicile.

    Also attached (HERE) Circular of the General Director of Legal Security and Public Faith, which determines the inappropriateness of granting certificates of oath of nationality when indications are detected that the applicant has performed acts incompatible with good civic conduct (such as, for example, the fact that the applicant is incarcerated in a penitentiary center).

    9.- JUDICIAL CHALLENGE OF NEGATIVE QUALIFICATIONS. SERVICE TO WHICH WE CAN RESORT AS A NOTARY'S OFFICE.

    Attached (HERE) an informative document of the General Council of Notaries, through which, a service available to Notaries, to be able to appeal judicially those negative ratings (or also Resolutions of the DGSJFP) that may involve a corporate interest for Notaries.

    Thus, in the event that the employee encounters a negative rating that he/she considers may affect the Notary's office as a whole, he/she may raise this possibility with the Notary, which may be requested through the channels indicated in the attached document.

    10.- THE ADVISABLE ACT OF MANIFESTATIONS PRIOR TO THE GRANTING OF A DEED IN WHICH A PERSON WITH DISABILITY INTERVENES.

    The informative circular 3/2021, of September 27th of the Permanent Commission of the General Council of Notariesproposes that prior to the execution of a deed in which persons with disabilities are involved, a record of manifestations should be drawn up in which the circumstances that may influence the execution of the legal transaction in question should be recorded. The aforementioned record may include, among other circumstances:

    • Statements by the person with a disability himself/herself, for example, the statement of that person recognizing that he/she is selling for a price below market price for a specific need or convenience, or the reasons for which he/she renounces a specific inheritance.
    • Statements of persons assisting the disabled person in the exercise of his or her capacity. For example, the declaration of the de facto guardian, lawyer, incidental companion, etc., stating that he/she has recommended the disabled person to grant a deed of sale because it is necessary for his/her future support and maintenance, or to settle outstanding debts.

    This act is an essential complement to the notarial capacity judgment, and provides clarity and security for future disputes and possible claims. It is recommended that the person requesting the record be the person with a disability or his or her assistant.

    11.- THE CENTRAL REGISTRY OF REAL TITLE IS CREATED.

    Royal Decree 609/2023, of July 11, 2023, creating the Central Registry of Real Estate Titles. Royal Decree 609/2023, of July 11, 2023, which creates the Central Registry of Real Estate Titles.. This registry must be consulted by all parties obliged by law to control money laundering, including notaries. However, until the data is uploaded to this registry, for which 9 months are given, the Royal Decree establishes that the traditional sources must continue to be used (Database of the Beneficial Ownership through Signo).

    July 2023

    1.- NEW PAID LEAVE OF 15 CALENDAR DAYS FOR DOMESTIC PARTNERS

    Royal Decree-Law 5/2023 is published in the BOE and enters into force (HERE you can consult it), by virtue of which, a paid leave of 15 calendar days is recognized for the fact of constituting (and registering) as a stable couple. All stable couples that are constituted from now on can be informed about it, so that they can enjoy this new leave.

    2.- NEW REGULATION OF STRUCTURAL MODIFICATIONS OF COMMERCIAL COMPANIES

    The aforementioned Royal Decree-Law 5/2023 (HERE you can consult it) has repealed the former Law 3/2009, of April 3, 2009, on structural modifications of commercial companies (transformation, merger, spin-off, global assignment of assets and liabilities, etc.). Thus, from now on, the new legal regime for structural modifications can be found in the aforementioned Royal Decree-Law 5/2023. To be taken into account when any officer prepares one of these operations (he/she should consult the new regulation and adapt the legal quotations to the new regulatory text).

    3.- FOREIGNERS' DIVORCE DECREES, WITH ADJUDICATION OF REAL ESTATE, MUST BE REGISTERED IN THE CENTRAL CIVIL REGISTRY.

    Attached is the Resolution of the DGSJFP of June 13, 2023 (BOE of July 10, 2023).. According to it, and by way of summary, the DG determines that, in case of divorce (OF FOREIGNERS whose marriage is not registered in the Spanish Civil Registry), if in the sentence a property is awarded to one of the ex-spouses, in order to register it in the Property Registry, it is necessary that, previously, this divorce sentence is registered in the Central Civil Registry.

    4.- REGISTRATION OF PROPERTY AND PRIOR IN TEMPORE. SOMETIMES YES, SOMETIMES NO, WHAT IS FILED LATER HAS PRIORITY OVER DOCUMENTS FILED EARLIER.

    Attached is the Resolution of the DGSJFP of June 15, 2023 (BOE of July 10, 2023).. According to it, and as a summary, the DG solves a curious case:

    • CV + PH is signed and submitted for registration, qualified with remediable defects.
    • A correction is presented, and being the entry in force (that is to say, not yet registered the VC + PH), an order of the AEAT enters in the Property Registry with a prohibition to dispose, due to tax debts.
    • The Registrar negatively qualifies the CV + PH (filed before the writ) on the grounds of public order.
    • The Notary appealed and the DG agreed with him, determining that if this order comes from an administrative procedure where the civil validity of the legal transaction is not questioned (remember, tax debts), the negative qualification does not proceed, since the CV + PH have been presented before in the Registry (prior in tempore potior in iure).
    • However, the DG reminds us that if the injunction had been issued in the context of criminal proceedings where the validity of the business is questioned (for example, an alleged fraud in the VC), the suspension of the registration would be appropriate (even if the injunction was subsequent), for reasons of general interest / public order.

    5.- NOTHING CAN BE REGISTERED IN FAVOR OF A COMPANY WITH A REVOKED CIF.

    Attached is the Resolution of the DGSJFP of June 16, 2023 (BOE of July 10, 2023).. According to it, and by way of summary, the DG determines that, in the context of a sale and purchase, if the acquiring company has the CIF revoked, the acquisition cannot be registered in its favor. It is important to take into account and always remember, when a company is involved, to consult the existing database on the subject.

    6.- IT IS POSSIBLE TO REDUCE CAPITAL STOCK BELOW 3,000 EUROS IN AN EXISTING COMPANY

    Attached is the Resolution of the DGSJFP of June 13, 2023 (BOE of July 10, 2023).. According to it, and by way of summary, the DG solves the following curious case:

    • 3,000, executes a capital reduction, as a result of which, its resulting capital stock figure falls below 3,000 euros.
    • The Registrar suspends the registration as he considers that this figure is below the legal minimum, as he considers that SLs of less than 3,000 euros of capital are only possible at the time of incorporation.
    • The DG revokes the qualification of the Registrar, considering that it is possible to execute a capital reduction in an SL whose result is a share capital of less than 3,000 euros.

    CAPITAL STOCK INCREASE AND PREEMPTIVE SUBSCRIPTION RIGHTS. TIME MUST BE RESPECTED

    As a result of a transaction formalized at the Notary's office, it is recalled that in the context of a capital increase of a corporation, the shareholders' pre-emptive right to capital increases arises from the moment of publication of the offer for subscription of the new shares in the Official Gazette of the Commercial Registry, or from the written communication to each of the shareholders. Such subscription may be made by the shareholders within the period established by the Shareholders' Meeting, which may not be less than one month from the publication or communication.

    Therefore, these deadlines must be taken into account and respected when formalizing this type of transaction (so that it is not possible for the subscription of the new shares to be carried out at the same Meeting of the resolution, unless all the shareholders have attended the meeting).

    8.- CIVIL LIABILITY OF THE NOTARY. VERY IMPORTANT TO TAKE INTO ACCOUNT IN ORDER TO AVOID THIS KIND OF MISTAKES.

    Attached is a link to an interesting doctrinal article (HERE) in which the civil liability of the Notary Public is analyzed. Of special interest, there is a section with details of specific cases (for example, omission of charges, insufficient powers of attorney, lack of information regarding the tax effects of the granting, etc.).

    It is strongly recommended that all employees of the Notary's Office read the article and these specific cases to avoid making these types of errors and the liability associated with them.

    9.- CIVIL REGISTRATION AND OATH OF NATIONALITY AND NOTARIZED MARRIAGES. IMPORTANT ISSUES TO BE TAKEN INTO ACCOUNT

    Attached is a document from the General Directorate of Legal Security and Public Faith (see PDF attached to this email) which clarifies several issues related, above all, to the documentation to be submitted by the interested parties in the acts of nationality oath and in the marriage proceedings before a Notary Public, as well as aspects related to the procedure to be taken into account in both grants of nationality and marriage.

    June 2023

    1.- ARTICLES OF ASSOCIATION. NOTICE OF MEETING. THE CLAUSE IN THE BYLAWS THAT ALLOWS THE NOTICE OF THE MEETING TO BE SENT TO THE SHAREHOLDERS BY ORDINARY MAIL (WITHOUT ACKNOWLEDGEMENT OF RECEIPT) IS NOT VALID:

    Attached is the Resolution of the DGSJFP of May 10, 2023 (BOE of June 1, 2023).. According to them, and by way of summary, the DG reminds us that (in the framework of the incorporation of an SL), the statutory clause that allows the meeting notice to be sent to the shareholders by ordinary mail (without acknowledgement of receipt) is not admissible, since for the notice to be valid, it is necessary that the system of transmission allows verification of the receipt of the notice by the addressee.

    2.- IN THE DEED OF EXTRAJUDICIAL SALE OF MORTGAGED PROPERTY IT IS NECESSARY THE RELIABLE NOTIFICATION OF THE EXECUTION TO THE HOLDERS OF SUBSEQUENT CHARGES:

    Attached is the Resolution of the DGSJFP, dated May 11, 2023 (BOE of June 1, 2023). Case of extrajudicial foreclosure of mortgaged property, in a notary's office, where there is a resolutory condition subsequent to the mortgage in favor of a company. The company is notified of the foreclosure proceedings by registered mail with acknowledgement of receipt, but the delivery is negative, after which the deed is granted. The DG, aligning itself with the thesis of the Registrar, does not accept this, since it considers that when the extrajudicial foreclosure of a mortgaged property is formalized by means of a deed, it is necessary to notify reliably the procedure to all the holders of charges or rights subsequent to the mortgage being foreclosed, so that if it is decided to send the notification of the procedure by registered mail with acknowledgement of receipt, and its delivery to the addressee is negative, it is appropriate to make a personal notification, by the Notary, by means of a deed of notification (art. 202 Notarial Regulations).

    3.- RECTIFICATION OF MORE THAN 10% OF THE LAND AREA. IT IS NOT POSSIBLE TO REGISTER IT "LITTLE BY LITTLE":

    Attached is the Resolution of the DGSJFP, dated May 12, 2023 (BOE of June 1, 2023). A deed is granted for the rectification of the size of the property, by the "simplified way" of article 201.3 of the Mortgage Law(for differences that do not exceed 10%), but when analyzing the square meters stated in the registry and the meters declared now (from 9,403 to 10,377), it is appreciated that the difference is higher than 10%. The Registrar suspends registration and subsequently, the Notary presents a deed of correction where it is requested to register only the excess of capacity up to 10%. The Registrar qualifies again negatively, and the DG, aligning with the Registrar, confirms that this is not possible, since it is not possible to register "little by little" or "by parts" a rectification of capacity, so that if the same is higher than 10%, the ordinary procedure of article 201.1 of the Mortgage Law must be used, and not the simplified procedure of article 201.3.

    4.- MINUTATION OF "MINOR CONCEPTS". WHAT CAN BE CHARGED AND WHAT CANNOT:

    Interesting entry from the blog "justitonotario" (HERE) which analyzes a Resolution of the Directorate General of January 3, 2023 (the full text can be consulted in a link of the aforementioned blog), which resolves an appeal by a private individual against the minutes of a Notary of a deed of sale. By way of summary, it determines that:

    • What is witnessed and what is not? It is the Notary who decides.
    • Mercantile Registry Report: Not applicable.
    • Actual Holder Consultation: Yes.
    • Blank sides of checks: correct.
    • Incorporation to the copy of a folio for the consignment of notes: correct.
    • Diligences: Must be on record in order to be minutable.
    • Simple copies and agreement of assumption of expenses by the buyer: If the buyer assumes the expenses, this includes the copies necessary to comply with the obligations of communication of the formalized business.
    • Number of simple electronic copies: 2 (for communications to Cadastre and City Hall, respectively).
    • Number of simple paper copies: 3 (to liquidate ITP, "plusvalía" and various formalities, respectively).
    • At the moment of indicating the number of copies desired by the grantors: At the time of signing.
    • What can we consider as testimonies? The transcription of the data of the intervening company; the elaboration of the necessary card to be able to carry out the telematic liquidation; the testimony by request of registry information; the consultation of Real Titularity; the simple note of the Registry; the receipt of the IBI; the descriptive and graphic cadastral certification (to the margin of the extra-land registry management also minutable); the checks that accredit the means of payment; the certificate of debts of the community; the label of the Energetic Certification or the whole certificate and respecting what is needed according to the cases; the proof of reception of the Town hall of the communication of the article 110.6.b) and the verification of CSV`s.
    • Security seal: Yes, it is minuted.
    • Note from the Registry: It can be a supplement (in the margin of the testimony).

    5.- IT IS NOT POSSIBLE TO BE 2 THINGS AT THE SAME TIME. IT IS NOT POSSIBLE TO BE A MEMBER (NATURAL PERSON) OF THE BOARD OF DIRECTORS OF A COMPANY AND, AT THE SAME TIME, ALSO BE A NATURAL PERSON REPRESENTING A COMPANY THAT HOLDS THE POSITION OF MEMBER OF THE SAME BOARD OF DIRECTORS:

    Attached is the Resolution of the DGSJFP of May 23, 2023 (BOE of June 16, 2023).. According to them, and by way of summary, the DG determines that, in a 3-member board of directors, it is not possible for the same natural person to hold the position of member of the board and, at the same time, the position of natural person representing a company that is also a member of said board, since this would imply that, de facto, a single person would have the right of veto for the adoption, or not, of any agreement, in addition to being able to generate situations susceptible to conflict of interest. In any case, if the board had more than 3 members, the issue would be more debatable and the specific case would have to be analyzed in order to reach a conclusion in this respect.

    6.- SALE OF REAL ESTATE BY A COMPANY REPRESENTED BY AN ADMINISTRATOR WITH HIS POSITION NOT REGISTERED IN THE MERCANTILE REGISTRY. IT IS POSSIBLE IF THE NOTARIAL JUDGMENT OF SUFFICIENCY IS WELL DONE:

    Attached is the Resolution of the DGSJFP of May 9, 2023 (BOE of May 29, 2023).. According to them, and by way of summary, the DG reiterates its already consolidated doctrine and determines that, in a case of an SL selling a property, represented in the sale by its administrator, without the position still registered, it is possible to formalize the operation if the notarial judgment of sufficiency is made in the correct way . In particular, the deed should contain all the circumstances foreseen by the law in order to understand the appointment of the administrator as valid:

    1. The resolution of the duly called General Meeting.
    2. Acceptance of appointment,
    3. The notification or consent, as the case may be, of the holders of the previous registered offices.

    AMENDMENT OF THE COMMERCIAL REGISTRY REGULATIONS IN ORDER TO ADAPT THEM TO THE EUROPEAN UNION REGULATIONS ON DIGITAL PROCESSES.

    HERE you can consult the aforementioned reform of the Mercantile Registry Regulations, published in the Official State Gazette of June 14. Based on the same, as key aspects:

    • The assignment of a Unique European Identifier (EUID) to all capital companies and branches is foreseen, allowing them to be unequivocally identified through a system of interconnection of all EU commercial registries.
    • The possibility of creating and closing branches telematically/online is foreseen.
    • Its entry into force is delayed by one year, counting from the publication in the Official State Gazette of Law 11/2023 (i.e., May 9, 2024).

    May 2023

    1.- WAIVER OF INHERITANCE OF MINORS AND CONFLICT OF INTEREST. ASPECTS TO TAKE INTO ACCOUNT:

    Attached is the Resolution of the DG of Law, Legal Entities and Mediation of the Generalitat de Catalunya, dated February 20, 2023 (DOGC of March 2, 2023). According to it, and by way of summary, the DG reminds us that in the renunciation of an inheritance in favor of minors, the general rule is that it must be formalized in a public deed by the parents, with judicial authorization (art. 236-27 CCCat) or, alternatively, by the two closest relatives (art. 236-30 CCCat). In case of conflict of interest of one of the parents, the renunciation is made by the other parent with the consent of the two relatives. If the conflict of interest affects one of the two relatives, he/she must abstain or, if necessary, the successive relative must be called upon to substitute him/her.

    2.- LAND REGISTRY. IT IS NOT POSSIBLE TO REQUEST SIMPLE NOTES NEITHER BY EMAIL NOR BY MEANS OF A DOCUMENT PRESENTED BY TELEMATIC WAY:

    Attached are the Resolutions of the DGSJFP of March 27, 2023 (BOE of April 18, 2023) and of March 28, 2023 (BOE of April 18, 2023). According to them, and by way of summary, the DG reminds us that simple notes cannot be requested either by email or by means of a request submitted in a document through the Registry's telematic document filing system. The ordinary way is through the telematic portal of Registradores.org or via Telefax in the case of continuous notes from the Notary's office.

    3.- ASSIGNMENT OF PROPERTY IN EXCHANGE FOR A LIFE ANNUITY SECURED BY A CONDITION PRECEDENT AND A REAL RIGHT OF MORTGAGE. YOU CANNOT MORTGAGE WHAT DOES NOT YET BELONG TO YOU:

    Attached is the Resolution of the DGSJFP of March 28, 2023 (BOE of April 18, 2023). According to it, and by way of summary, the DG reminds us that you cannot mortgage what is not yet yours. An assignment of a property in exchange for an annuity is formalized in a public deed. Assignor (elderly person), assigns the property to a third party (assignee), in exchange for an annuity. The assignment is formalized with a suspensive condition, so that the transfer of ownership will take place when the assignee party proves that it has paid the agreed pension in full (it is understood that upon the death of the assignor). Likewise (to guarantee that those obliged to pay the pension will pay it), the assignee constitutes a mortgage on said property, in favor of the assignor, as an additional guarantee for the payment of the life annuity. The registration of the mortgage is denied since the condition precedent has not yet been fulfilled, so that the assignees have not yet acquired title to the real estate (condition precedent pending fulfillment) and, therefore, cannot mortgage something that does not yet belong to them.

    4.- MORTGAGE AND DOMICILE FOR NOTIFICATION PURPOSES. IT CANNOT BE A FOREIGN DOMICILE:

    Attached is the Resolution of the DGSJFP of March 30, 2023 (BOE of April 18, 2023). According to it, and by way of summary, the DG reminds us that when formalizing a real right of mortgage, the deed must contain an address of the debtor for the purpose of notifications and requirements, which must be located in Spain, so that it is not admissible to indicate an address of the debtor abroad, for these purposes.

    5.- DEED OF EXTINCTION OF STABLE COUPLE AND DISSOLUTION OF CONDOMINIUM (APARTMENT IN COMMON). IT CAN BE GRANTED WITH MINOR CHILDREN IF COVENANTS THAT AFFECT THE CHILDREN ARE NOT INCLUDED IN THE DEED:

    I attach the Resolution of the DG of Law, Legal Entities and Mediation of the Generalitat de Catalunya, dated April 19, 2023 (DOGC of April 24, 2023). According to it, and by way of summary, the DG determines that when there is a stable couple with children and with a house in common, when the stable couple is extinguished by cessation of the cohabitation, although there are those minor children, they can formalize the extinction of the stable couple in the deed and agree in the same one the dissolution of the condominium of the property that they had in common. However, this will only be possible if the deed of termination of the stable partnership does not include measures that affect the children, such as an agreement, a parentality plan, an alimony, or a visitation regime (in which case, logically, it would require judicial authorization).

    6.- DEED OF MATERIAL DIVISION OF A PRIVATE ELEMENT OF A PROPERTY SUBJECT TO THE HORIZONTAL PROPERTY REGIME ONLY A SIMPLE MAJORITY IS REQUIRED:

    I attach the Resolution of the DG de Dret, Entitats Jurídiques i Mediació de la Generalitat de Catalunya, dated May 5, 2023 (DOGC of May 15, 2023). According to it, and by way of summary, the DG determines that in the case of an old building with a "singular" horizontal division (divided into 4 entities, one of which includes 13 apartments susceptible of individualized use), if the bylaws do not expressly allow it, then the building's bylaws must be modified, if the bylaws do not expressly allow it (in which case no agreement of the Meeting would be required) it is possible to formalize a material division of this entity that includes those 13 floors, in order to create 13 independent registry properties, being only necessary a resolution of the Meeting approved by simple majority (that is, it would not be necessary an agreement with qualified majorities of 4/5).

    7.- DEED OF RECTIFICATION OF ERROR (OF SURFACE) IN THE DESCRIPTION OF A PROPERTY (PRIVATE ELEMENT) SUBJECT TO HORIZONTAL PROPERTY REGIME. IT IS NOT REQUIRED DECLARATION OF NEW OLD WORK BY THE COMMUNITY OF PROPRIETORS:

    Attached is the Resolution of the DGSJFP, dated April 18, 2023 (BOE of May 8, 2023). According to it, and by way of summary, the DG resolves a case in which an overground floor, registered with a useful surface of 47.51 meters, is rectified to 97 meters (since in fact that was the real and correct surface), by means of a deed granted by the registered owner of that property, based on a cadastral and graphic certification and an architect's report (that accredit that it is an error and that that floor has that surface from the moment of the construction), as well as by means of an agreement of Meeting (adopted by unanimity) that consents to this rectification. In this case, the DG confirms that this deed is sufficient to register the modification of the surface of the apartment, without the need of a deed of declaration of old new construction, by the community of owners, where the description of such element is rectified.

    8.- WHEN IN A SUCCESSION THERE IS A RIGHT OF TRANSMISSION, EYE THAT THE CONCURRENCE OF ALL THE INTERESTED PARTIES IN THE INHERITANCE IS REQUIRED FOR THE DELIVERY OF A LEGACY:

    Attached is the Resolution of the DGSJFP of April 19, 2023 (BOE of May 8, 2023). According to it, and by way of summary, the DG reminds that, within the framework of the right of transfer, and based on article 1006 of the Civil Code, any operation tending to divide the inheritance to which the transferor is called must be granted by all the interested parties in the succession of the latter (including their legitimated beneficiaries). This is a case in which two deceased persons, in their will, name as heirs their six children (with vulgar substitution in favor of their respective descendants) and, also, order in favor of three of their children legacies of some real estate. Subsequently, one of these children dies, leaving a widow and three children (grandchildren of the first deceased). A deed of delivery of the bequest is granted by the heirs instituted (children of the deceased couple) and also by the transmitting heirs (grandchildren), but the widowed spouse of the deceased son does not intervene, something that the DG interprets that it is indeed necessary, since she is interested in the succession.

    9.- IT WILL SOON BE POSSIBLE TO GRANT DEEDS TELEMATICALLY:

    Attached is a link to the article recently published in El Periódico (HERE) where the novelties derived from Law 11/2023 are succinctly explained. Based on the same, in short (at the end of November expires the vacatio legis of 6 months), it will be possible to grant certain public documents telematically, that is to say, without the physical presence of the client in the Notary's office. As more news on the practical implementation of the measure becomes available, the staff will be duly informed.

    April 2023

    1.- CLIENTS CAN IDENTIFY THEMSELVES BEFORE A NOTARY BY MEANS OF THE VALID DRIVING LICENSE OF THE KINGDOM OF SPAIN:

    Attached is the Resolution of the DGSJFP of January 16, 2023 (BOE of February 14, 2023). According to this Resolution, and by way of summary, the DG allows an appearing party to identify himself before a Notary Public by means of a valid Spanish driving license, although this resource must be used in a subsidiary or supplementary manner. This means that, ordinarily, in any case, the identification of Spaniards must be made by means of Passport or DNI. However, in a subsidiary manner, the driving license may also be accepted, since it is an official document issued by a public authority, with photograph and signature, which has identification effects.

    2.- THE CONSENT OF THE NEW OWNERS OF A PROPERTY SUBJECT TO A HORIZONTAL PROPERTY REGIME IS NECESSARY IN ORDER TO RECORD IN THE PROPERTY REGISTRY AGREEMENTS ADOPTED PRIOR TO THE PURCHASE OF THE PROPERTY THAT HAVE NOT BEEN REGISTERED.

    Attached is the Resolution of the DGSJFP of January 31, 2023 (BOE of February 20, 2023).. According to it, and by way of summary, the DG recalls that, as a general rule, if a community of owners adopts an agreement subject to registration in the Land Registry, and subsequently, before such agreement is registered, there are changes of ownership in private elements, in order to achieve the registration of such agreement, the new owners must give their consent. However, in this specific case, being an inheritance, the DG applies the principle of universal succession (article 661 Cc) and allows the registration of the agreement.

    3.- IN THE CONTEXT OF AN INHERITANCE, THE SEPARATION OF A MARRIAGE MUST BE RELIABLY PROVEN IN ORDER TO DEPRIVE THE SURVIVING SPOUSE OF HIS OR HER INHERITANCE RIGHTS TO THE RESERVED PORTION OF THE ESTATE.

    I attach the Resolution of the DGSJFP of January 24, 2023 (BOE of February 14, 2023). According to it, and by way of summary, the DG reminds us that, in the context of an acceptance of inheritance, in order to formalize the same without the surviving legitimate spouse (as a result of the spouses being separated), it is necessary to prove the separation (by mutual agreement in public deed / judicial resolution of separation or divorce / by ratification of the spouse who does not participate in the partition).

    4.- PRECAUTIONS TO BE TAKEN INTO ACCOUNT IN THE ADEQUACY TRIAL WHEN A PREVENTIVE POWER OF ATTORNEY IS USED IN ANTICIPATION OF LOSS OF CAPACITY.

    Attached is the Resolution of the DGSJFP of November 4, 2022 (BOE of December 2, 2022). According to it, and by way of summary, the DG determines that in order to be able to use a preventive power of attorney in anticipation of loss of capacity (of the type that only takes effect once the loss of capacity is accredited, not before) a generic sufficiency judgment is not enough as in any kind of power of attorney, but additional requirements will be demanded, namely: a current medical certificate will be required, with indication of date, author, object and an express judgment of the Notary that the principal is in the support situation described for the power of attorney to take effect (and even, in case of doubt, an expert report may be required, which will be assessed in a separate notarial act or, where appropriate, adding the appearance of the principal to assess in situ his situation of need).

    5.- JUDICIAL DECISIONS AFFECTING THE CAPACITY OF THE PERSON MUST BE REGISTERED IN THE CIVIL REGISTRY SO THAT THE ACTS DERIVED THEREFROM HAVE ACCESS TO THE PROPERTY REGISTRY.

    Attached is the Resolution of the DGSJFP of January 3, 2023 (BOE of February 9, 2023). According to it, and by way of summary, the DG reminds us that the court decision affecting the capacity of a person, in addition to being final, must be registered in the Civil Registry. Without this requirement, the act carried out by the representative will not be able to access the Property Registry.

    6.- WHEN THE ECONOMIC REGIME OF THE MARRIAGE IS INDICATED IN A DEED, IT MUST BE DETAILED WHETHER IT IS LEGAL OR CONVENTIONAL.

    I attach the Resolution of the DGSJFP of December 20, 2022 (BOE of February 3, 2023). According to it, and by way of summary, the DG reminds us that when indicating the economic regime of the marriage, it is necessary to determine in the deed if such economic-marital regime is legal or agreed (since in case of being agreed, specific rules of management and disposition may have been foreseen, different from the generic ones foreseen in the legal regime of the Code). In addition, if it is an agreed or conventional regime, it must be accredited to the notary by means of the exhibition of the authentic document from which the conventional economic regime results (marriage contracts) with the data of inscription in the competent Civil Registry. It can also be accredited with the certification of marriage of the Civil Registry in whose margin must be noted the granting of the marriage contracts in which the referred conventional matrimonial property regime is agreed, the day of the granting, the authorizing notary and the number of protocol.

    7.- NEED FOR THE NOTARY TO EXPRESSLY STATE IN THE NOTARIAL SUFFICIENCY JUDGMENT THE CAVEAT OF SELF-CONTRACTING AND/OR CONFLICT OF INTEREST.

    Attached resolution of the DGSJFP of March 9, 2023 (B.O.E. March 27, 2023). In this interesting resolution the DG reiterates once again its doctrine regarding the notarial sufficiency and self-contracting trial, in the sense that precautions must be taken when in the presence of a legal business granted by an attorney-in-fact who in turn intervenes in his own name and right as a party with interests opposed to those of his attorney-in-fact. In the case presented to us in the resolution, the Registrar suspends the registration of a donation in which the donor acts in turn as attorney-in-fact of the donee, without expressly stating in the deed of donation that the power of attorney granted by the donee expressly avoids the figure of self-contracting and/or conflict of interests. The administrative center recalls its already very reiterated doctrine that article 98 of Law 24/2001 exclusively attributes the judgment of sufficiency of the alleged representation to the notary, without the registrar being able to require for his qualification that the document from which the representation is derived be exhibited, accompanied or transcribed. However, when the figure of self-contracting is involved, it is not enough for the notary to state in the deed the notary's judgment of sufficiency, but it will also be necessary for him to clearly state that the authentic document from which the representation (power of attorney) results contemplates the caveat of self-contracting".

    8.- APPLICABLE LAW IN MATTERS OF MATRIMONIAL PROPERTY REGIMES WITH INTERNATIONAL ELEMENTS

    8.1.- LAW APPLICABLE TO THE MATRIMONIAL PROPERTY REGIME:

    • EU Regulation 2016/1103 (HERE) applies, applicable to all marriages entered into as of June 2019, which is universally applicable (it allows to apply even non-EU country laws).
    • The Regulation (art. 22) allows the spouses to choose the law applicable to their matrimonial property regime between that of the place of celebration or that of the nationality of either spouse.
    • Validity of the agreement: Subject to the formal requirements of each country (consequently, in Spain, a public deed will be required).
    • ‍In theabsence of an agreement, the applicable law shall be (art. 26): That of the first habitual residence after marriage, that of the common nationality or that of the closest bond.
    • ‍Alsoapplicable to "registered partnerships": stable couples registered in a public registry.

    8.2.- LAW APPLICABLE TO THE DIVORCE:

    • EU Regulation 1259/2010 (HERE) on applicable divorce law is applicable, which is also universally applicable (even non-EU laws can be applied).
    • The Regulation (art. 5) allows the spouses to choose the law applicable to divorce between the law of the place of habitual residence, the law of the last place of habitual residence, the law of the State of which one of the spouses is a national at the time of conclusion of the agreement or the law of the forum.
    • Validity of the agreement: Subject to the formal requirements of each country (in Spain, public deed of covenants in anticipation of rupture).
    • ‍Inthe absence of an agreement, the criteria of Article 8 of the Regulations shall apply.
    Jesus Benavides Lima
    Jesus Benavides Lima
    Notary of Barcelona

    Purchase and sale of real estate

    Find everything you need to know and how to make your appointment easily and quickly online.
    • Description
    • Required Documentation
    • Processing fees
    • Frequently Asked Questions
    • Applicable regulations
    • Make an appointment
    View all information
    View all information

    Other articles that might interest you