Notarial blog and other practical content

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

• The income limit of the family unit to be eligible for the Code is increased to 4.5 times the annual IPREM ( in specific cases it can reach 5.5 times).
• It is possible to request measures to extend the term up to 7 years and to fix the installment for 12 months, independently or jointly.

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

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

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

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

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

• The total or partial early repayment commissions for variable interest mortgage loans are eliminated during 2024.
• Commissions for the modification of conditions to change from a variable to a fixed rate are also eliminated. Nor may this fee be charged when the modification consists of changing from a variable rate to a mixed rate, provided that the fixed period is at least 3 years.
• No commissions may be charged for changing the entity when the variable rate is replaced by a fixed rate or by a mixed rate with the aforementioned requirements.

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

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

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

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

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

• Or identify a provisional custodian, who will be the owner of the vehicle and responsible for everything related to it. A specific procedure must be carried out to communicate this custody within 90 days of the death. It is provisional and the vehicle cannot be sold. It can only be transferred to the custodian himself or an heir.
• Or make the definitive transfer to one of the heirs, for which, once the vehicle is awarded to one of the heirs, he/she will have 90 days to make the definitive transfer to his/her name. Said holder becomes the owner, with all rights and obligations.

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

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

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

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

Attached (HERE) DGSJFP Resolution of December 14, 2023 (BOE of January 18, 2024), in which the DG considers that the partition of the inheritance and the liquidation of a capital company with awarding of assets to the partners are comparable. On the basis of this comparison, the DG decides that judicial approval of the liquidation of the company is necessary if the liquidation involves persons subject to representative guardianship (what used to be called guardianship of the incapacitated).

Attached (HERE) Resolution of the General Directorate of Taxes, in which, in response to a series of questions on the electronic protocol, the following is determined:

• Notarial deeds, minutes and testimonies, whether they are issued on paper or electronically, are subject to the so-called fixed fee of the modality of documented legal acts, notarial documents.
• The current wording of the Law regulating ITP and AJD only allows the collection of the fixed amount of the AJD on stamped paper, so we will have to wait for a reform of this law to enable a system of payment of the tax.
• Regarding the notarial invoicing, nowadays, we personally do not see legal coverage to be able to charge the electronic protocol folios. Therefore, we will continue charging only for the proceedings corresponding to the electronic protocol as we have been doing so far.
• This issue is being closely monitored and, should there be any new developments in this regard that affect the way public instruments are invoiced, these will be immediately communicated to all staff.

The following are the main conclusions of a recent WebiNots, organized by the Notarial Association of Catalonia, with a lawyer specialized in data protection:

• Take extreme care with all the documentation and information we manage. Only allow access to it to authorized parties.
• Be very careful with the Emails that we send to our clients. In principle, they only give us their email address for purposes related to their writing, so you cannot send them anything else that has a commercial purpose.
• WhatsApp communications with clients: Never send drafts of deeds, transaction documentation or confidential customer information (WhatsApp uses Big Data tools to extract data from everything that circulates through its App).
• Artificial Intelligence (AI, type Chat GPT): If information is sought in it (models of deeds, contracts, legal information, etc.), employees should not, under any circumstances, provide specific customer data (company names, transaction figures, etc.), as the AI stores them and may eventually use them in the future to provide answers to other people using the AI.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 y 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.

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

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!

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.

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.

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.

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).

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.

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.

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.

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.

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).

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.

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".

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.

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 Jesús 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.

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.

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).

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.

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).

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.

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.

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).

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).

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.

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.

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).

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).

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.

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.

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.