Notarial blog and other practical content

Attached (HERE) DGSJFP Resolution of March 19, 2024 (BOE of April 11, 2024), in which the DG resolves a case in which it is agreed the dismissal of a sole administrator of a SL, which has its domicile abroad.

The DG determines that, in these cases, the route of Article 202 of the NR is not the only one, so that if the cédula is sent by registered mail with acknowledgement of receipt and delivery cannot be made, alternatively, for such notification, one can also resort to the route of Regulation (EU) 2020/1784, on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (or, where appropriate, to the Hague Convention of 15 November 1965), where it is determined that the notarial notification must be served through the transmitting body designated by the Kingdom of Spain, that is to say, through the lawyer of the Administration of Justice corresponding to the court of the domicile of the authorizing notary (in these cases, the client must therefore go to the Court of the place where the notarial office where the deed has been signed is located and request the lawyer of the Administration of Justice of said Court to forward the document to the addressee, through the procedure established in said European regulations).

As a result of a recent consultation made by a client, on this issue (pension plans and their relationship with the estate), the doctrine of the SC on the matter, set forth in its STS 274/2021, of May 10, is recalled, in which it is established that "as far as the issue raised in this appeal is concerned, we must start from the fact that the legislator has left out of the scope of inheritance the benefits that the beneficiaries are entitled to receive in the event of the death of the members of a pension plan or the participants of pension plans, we must start from the fact that the legislator has left the benefits that beneficiaries are entitled to receive in the event of the death of the members of a pension plan or of the participants in pension plans outside the scope of hereditary succession. The right to the corresponding benefits generated in each plan in favor of the members or participants is not acquired by inheritance; therefore, even in cases where the beneficiary and the heir are the same person, the right to the benefit is subject to its own rules and not to the legal regime of inheritance. As is similarly established for life insurance in art. 88 of Law 5/1980, of October 8, 1980, on insurance contracts, and saving the differences between the two figures, the benefit must be delivered to the beneficiary in fulfillment of the contract even against the claims of the legitimate heirs and creditors of the policyholder".

Attached (HERE) DGSJFP Resolution of March 21, 2024 (BOE of April 16, 2024), in which the DG resolves a case in which an SL agrees its liquidation and extinction, with the particularity that it has assets (28,419.60 euros), as well as a liability not due (the Corporate Tax of 2023 that still could not be paid due to a question of dates). The company adopts the agreement, making a provision for the payment of this Corporate Tax, allocating the rest of the assets to the corresponding partners.

The Mercantile Registrar denies the registration stating that, in these cases, since there is a liability not yet due and an asset with which to meet it, it must proceed, in accordance with the provisions of Article 391.1 of the Capital Companies Act and 247.2.3.ª of the Mercantile Registry Regulations, i.e., to deposit the corresponding amount in a credit institution to meet said payment as soon as the regulatory period for such payment is opened.

After the corresponding appeal was filed by the Notary Public authorizing the deed, the DG finally agreed with the Registrar, ruling that, in a situation such as the one arising from the case (sufficient assets and debt not due on the balance sheet), the legal provision is that the assets be distributed as approved by the shareholders (Article 390 of the Capital Companies Act), without prejudice to the non-callable liabilities being duly consigned to a credit institution so that, when the time comes, they can be paid (Articles 391.1 and 395.1.b).1 and 395.1.b) of the same law).

Attached (HERE) Resolution DGSJFP of February 15, 2024 (BOE of March 14, 2024), in which the DG resolves a case in which a person, incapacitated, sells some properties, being represented in this act by his guardian, not stating in the deed neither the fact of having sent to the Civil Registry the corresponding judicial resolutions regarding the appointment of guardian nor the acceptance of the position.

The Land Registrar denies the registration for this reason, and the DG, upon the appeal of the Notary, aligning itself with the latter, determines that, in this specific case, this defect must lapse, since in the deed of sale a judicial order expressly authorizing this sale is provided and incorporated, so that, as the act of prior control by the judicial authority is included in the qualified deed through a resolution whose content leaves no room for doubt and has fulfilled the function of control of certain powers which, as legal representative, are the responsibility of the guardian, it must be concluded that the registrar has all the necessary elements to qualify the judicial authorization that constitutes sufficient proof of the support measure and on the referred charge and gives support to the dispositive act carried out by the guardian on behalf of her represented party.

Attached (HERE) Resolution DGSJFP of January 15, 2024 (BOE of February 23, 2024), in which the DG resolves a case in which a person, in will, institutes heirs to two of his children and, likewise, disinherits a third son and also the descendants of this disinherited son (ie, her grandchildren, two minors aged 13 and 8 years), leaving on record in the will their contempt for her person and their lack of interest in maintaining the relationship between the grandmother and the grandchildren.

The Registrar denied the registration on the grounds that, since two of the beneficiaries of the will of the deceased were minors at the time of the granting of the will, their intervention in the partition of the inheritance could not be disregarded, since the minors lacked the aptitude to be legally imputable for the conduct that constitutes the legal cause of disinheritance.

The DG, aligning itself with the Registrar, resolves that, for minors under 14 years of age, their inimputability must be assumed in the absence of the corresponding judicial pronouncement on the conditions of maturity of the minor that make him/her suitable to be the passive subject of the disinheritance, so that, unless there is a judicial sentence that validates the disinheritance, this cannot be considered effective in the patrimonial and registry level.

Attached (HERE) DGSJFP Resolution of February 21, 2024 (BOE of March 19, 2024), in which the DG resolves that in the case of UK powers of attorney, by its very nature, the judgment of sufficiency of the Notary is properly made when the original document signed by the principal is exhibited before him/her, and not in the form of an authentic copy.

Attached (HERE) Resolution DGSJFP of February 5, 2024 (BOE of March 8, 2024), in which the DG resolves a case in which a company, by means of the corresponding resolution of the General Meeting, agrees the dissolution and extinction of the same, and in the corresponding deed the Mercantile Registry is requested to cancel the company's registry entries. In said deed it is stated that the company has no assets whatsoever and that, likewise, it only has one creditor (the AEAT), whose credit cannot be satisfied due to the absence of active mass.

The Registrar refuses the registration alleging that, in accordance with art. 395 LSC, the deed of extinction of the company must contain the declaration of the liquidators that the creditors have been paid or that their credits have been consigned.

The liquidator of the SL filed an appeal against this classification, and the DG, aligning itself with the latter, considers that, in effect, when there are no assets to liquidate, even if there are creditors, in the strictly registry sphere there is no rule that makes the cancellation of the registry entries of a capital company that lacks corporate assets subject to the prior declaration of insolvency. Therefore, even if there are creditors, since there is nothing to pay them, the request for cancellation of the registry entries must be admitted, even if the company has not previously declared bankruptcy.

Attached (HERE) DGSJFP Resolution of February 19, 2024 (BOE of March 19, 2024), in which the DG resolves that, in the case of a company in insolvency proceedings and already in the liquidation phase, it is not possible to appoint and register a new administrator, since the company liquidation operations are the competence of the company's liquidators and cannot be carried out by the company administrators who, as a consequence of the state of dissolution, are de jure terminated.

Attached (HERE) DGSJFP Resolution of February 29, 2024 (BOE of March 20, 2024), in which the DG resolves that, in order to be able to calculate the financial loss, it is necessary to express the differential applicable to the same, as this must be stated in the registration so that its quantification, if applicable, can be carried out correctly.

Attached (HERE) DGSJFP Resolution of January 30, 2024 (BOE of March 8, 2024), in which the DG resolves that if a mortgage novation that encumbers the habitual residence of the family is formalized by one of the spouses, the consent of the other spouse is not necessary, if in said novation the capital is not increased nor the mortgage liability of the encumbered property is increased.

Attached (HERE) Resolution DGSJFP of February 6, 2024 (BOE of March 8, 2024), in which the DG resolves that in the renunciations of inheritance where foreigners intervene, it is also necessary to state the Foreigner Identification Number of the renouncing party, since it is an act with tax transcendence, for which, it is required by law (arts. 254.2 LH, 23 LN and 156.5 RN).

Attached (HERE) Resolution DGSJFP of January 29, 2024 (BOE of March 8, 2024), in which the DG resolves a case in which the sale of an undivided partition of 1/49 of a registered property consisting of commercial premises, which gave the right to exclusive use and enjoyment of a parking space, is formalized by means of a deed of sale. In the Registry and in the simple informative note it was registered that "the mentioned parking spaces will be considered as an accessory element for the service of the house and consequently they are expressly obliged not to transfer the acquired parking space but jointly with the house corresponding to each one of them". The Registrar denied the registration, considering that only the parking space can be sold together with the dw elling in question.

The DG, aligning itself with the Notary, revokes the qualification note and allows the sale, arguing that in this case we are dealing with a merely obligatory agreement, and not an ob rem linkage, since this requires that it be duly formalized and expressly recorded as such.

Attached (HERE) DGSJFP Resolution of February 5, 2024 (BOE of March 8, 2024), in which the DG resolves a case in which a mortgage loan is formalized in favor of a company, with a natural person who is also a director of the company as guarantor.

The DG resolves that when the individual guarantor of a business loan is a director of the company, attorney-in-fact, or partner, that individual has a functional link with the company that excludes him from having the status of consumer and, therefore, determines the non-application of the precautionary measures of the LCI.

Attached (HERE), a list of entities and institutions that can provide assistance to people who require it for the exercise of their legal capacity under equal conditions (elderly people with cognitive impairment, disabled people, etc.), provided by the General Directorate of Personal Autonomy and Disability of the Generalitat de Catalunya to the Notarial Association of Catalonia. To take it into account if we attend any client who requires this kind of assistance or may need it in the future.

Attached (HERE) Resolution JUS/47/2024 of the Direcció General de Dret, Entitats Jurídiques i Mediació, of January 3 (DOGC 19/01/2024), in which the DG resolves an appeal filed against the refusal of a Registrar to register a succession agreement formalized by a mother (who has 4 children) and three of her children, in which dispositions are made in favor of the grantors, but also in favor of a third party who does not participate directly in the agreement (that fourth child).

The DG, aligning itself with the appellant, revokes the qualification note, stating that, in accordance with the second paragraph of art. 431-1 of the CCCat, the Catalan succession agreements admit dispositions between the grantors and, also, in favor of third parties who do not participate directly in their granting.

Attached (HERE)Informative Circular 1/2024, of the General Council of Notaries, on Foreign Investments. It details the novelties introduced by Order HFP/115/2023, of February 9, which determines the countries and territories, as well as the detrimental tax regimes, which are considered as non-cooperative jurisdictions (HERE), which came into force on February 1, 2024.

This order (which implements Royal Decree 571/2023, referred to in a previous Newsletter) sets out the forms for the processing and declaration of foreign investments in Spain and Spanish investments abroad. As a reminder, it should be pointed out that said regulation establishes, depending on the case, a declaration or authorization regime (in the case of the declaration, its absence does not affect the validity of the operation, while, in the case of authorization, its absence does affect its validity). In the attached Circular, the specific cases in which the declaration or authorization is required are detailed.

Procedure to take into account in operations where prior declaration is required:

1. The foreign investor who is going to formalize the transaction before a notary must, prior to the signing, complete, under his sole responsibility, the corresponding declaration in AFORIX(see attached HERE manual with a summary of the procedure to be carried out by the non-resident holder).
2. If the grantor has filled in the corresponding form and provides the Notary's office, at the time of signing, the corresponding electronic files, the Notary's office must check that the essential data of the electronic file delivered coincide with those of the deed or policy to be signed (HERE a manual with the procedure to be followed at the Notary's Office is attached). Once this verification has been carried out, the form must be printed and incorporated into the deed, so that, once the deed has been signed, the Notary must send the information provided, through the notary's electronic office, to the General Council of Notaries, who in turn will send it to the Investment Registry.
3. If the grantor does not deliver the file at the moment of signature, the Notary will leave record of it in the deed, with the opportune warnings. If the file is provided later, the Notary will record it by means of diligence, proceeding to carry out the same steps described above.
4. Also attached are models of external investment clauses to be included in the deeds, as the case may be (HERE).

Procedure to take into account in operations where express authorization is required:

In the attached circular the operations subject to this express authorization are detailed(for example, investments of residents in non-EU countries that imply a 10% or more of a Spanish company, if the object of the investment is, among others, critical infrastructures, critical technologies, energy supplies, sectors of access to sensitive information, or means of communication) In these cases, the Notary is obliged to inform the applicants of the need to obtain this express authorization, denying the authorization of the public document until the same is not obtained.

Attached (HERE) DGSJFP Resolution of December 19, 2023 (BOE of February 16, 2024), in which the DG resolves a case in which the developer of a new building formalizes in a deed a segregation of an undivided participation that belongs to him, in a semi-basement floor premises intended for garage / storage rooms, to create three independent registry properties, that is, two parking spaces and a storage room, in order to proceed with its sale to final buyers.

The Registrar refuses the registration because, in view of the clause in the bylaws of the horizontal division that empowers the developer to carry out such segregations, it is noted that the same clause establishes that such power may only be used "before proceeding with the sale of the aforementioned storage rooms", considering the Registrar that since the developer has already started to sell other storage rooms, this clause cannot be applied, so that the consent of all the registered owners of the remaining undivided shares already sold is necessary.

The DG, aligning itself with the Notary, revokes the qualification note, considering that, in this case, it is necessary to interpret the statutory clause in a "logical, finalist and contextual" way, that is, allowing such modifications, even if the sale of other storage rooms has already started, as long as such subsequent modifications only affect undivided participations belonging to the developer company.

Attached (HERE) Resolution DGSJFP of January 9, 2024 (BOE of February 21, 2024), in which the DG resolves a case in which the Land Registry refuses the registration of a right of purchase option on a property, as it incurs in the prohibition of the commissory agreement (as there are previous financial relations between grantor and optionor, that is, previous debts, which are embodied in a protocol prior to the purchase option).

The DG, aligning itself with the Registrar, considers that, in effect, it is not possible to use the purchase option business for a purpose that is foreign to it, that is, to operate as a guarantee, so that it is not admissible that, under the appearance of a purchase option contract, a seizure is hidden that allows the option holder (creditor of a debt), to become owner of the property offered as guarantee (to settle that debt), and all this, without the requirements and precautions proper to the procedural execution.

Attached (HERE) Resolution DGSJFP of January 15, 2024 (BOE of February 22, 2024), in which the DG, resolves a case related to a purchase of a property, with privative character, of a married person in regime of community property of common law.

Interesting Resolution to remember the ways in which this acquisition can be produced with privative character, that is to say:

• Undoubtedly justifying the privative nature of the property (by means of public documentary evidence).
• Confession of privativity of the other spouse (which subjects the acquisition to the special regime of art. 1324 Cc and 95.4 of the Mortgage Regulation).
• Celebration between the spouses of a legal business of attribution of privative character (where the onerous or gratuitous cause of such business is clearly expressed).

The following are two interesting issues, analyzed in the last WebiNots of the Association of Notaries of Catalonia, in matters of inheritance:

WILL AND NOTARIAL CAPACITY TRIAL:

Two rulings of the Supreme Court of Justice are analyzed where the validity of two wills granted by elderly people (over 80 years old) is questioned.Extreme caution with wills of elderly people (over 80 years old), which, taking into account the population pyramid, will be more and more common. At the slightest doubt about the testator's capacity, there are several options to reinforce the judgment of capacity:

• Prior record of evidence that the person is of sound mind (medical report).
• Make a recording of the person with an interview and deposit it in a previous record.
• Extreme cases: require the presence of 2 physicians.

DONATIONS AND IMPUTATION TO THE ESTATE:

In accordance with the Civil Code of Catalonia (art. 451-8 CCCat), "donations between living persons granted by the deceased with an express agreement of imputation or made in payment or on account of the legitimate are imputable to the legitimate. The imputable nature of the donation must be expressly stated at the time it is granted and cannot be imposed subsequently by acts between living persons or by cause of death.

It is important to remember this to the clients when the donation is formalized, because it can only be done at that moment, not a posteriori!(as it happens in the case analyzed in the seminar, where after the donation, the relationship between father and son deteriorates, and the father (donor), in will, indicates that this past donation is imputable to the legitimate, but this is no longer possible, and this is what the TSJ declares in the sentence of the specific case).

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) 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.

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).

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) 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".

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 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) 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.

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) 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.

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) 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) 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) 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 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 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 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) 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.

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) 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.

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 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 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 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 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 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 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.

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.

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).

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 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 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 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 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.

‍

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) 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 (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) 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.

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.

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.

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".