Notarial blog and other practical content

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.

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.

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.

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.

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.

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).

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).

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.

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).

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.

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).

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.

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.

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.

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.

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.

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).

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.

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.

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).

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.

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 their six children as heirs (with vulgar substitution in favor of their respective descendants) and, likewise, 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.

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.

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).

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 a person appearing before a Notary Public to identify himself/herself 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 a 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.

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).

1.- APPLICABLE LAW TO THE MATRIMONIAL PROPERTY REGIME:

• EU Regulation 2016/1103 applies (HERE), 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.

2.- LAW APPLICABLE TO THE DIVORCE:

• EU Regulation 1259/2010 applies (HERE), on the law applicable to divorce, also of universal application (it allows to apply even non-EU countries' laws).
• 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.

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.

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".

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.